The Presidency

Chapter 6© 2009 Pearson Education, Inc.

Federalist 70 (A. Hamilton)

Energy in the executive is a leading character in the definition of good government

Ingredients which constitute this energy:– Unity, duration, adequate provisions for its support, due

dependence on the people, and due responsibility A single executive is best adapted to deliberation,

wisdom, and conciliation Unity will be jeopardized with a plural executive

– Danger of difference of opinion– Lessen the respectability– Weaken the authority– Split the community– Conceal faults and destroy responsibility– Security is unattainable

THE PRESIDENCY INPERSPECTIVE

Edward S. Corwin

Article II Presidential Powers

Presidential powers, as delineated in the Constitution, are vague

For example, “The executive power shall be vested in a President of the United States of America”

Presidential Power

Presidential power does not exist in a vacuum. The executive must rely on Congress to fund programs and for the agencies to administer them

Two Constitutional Conceptions of Executive Power

the conception that it ought always to be subordinate to the supreme legislative power (the legislature represents the people)

and the conception that it ought to be, within generous limits, autonomous and self-directing (the President embodies the people)

Examples of Presidential Leadership

Jefferson, along with other Virginians, used personal skill to dominate Congress

The War of 1812 and the Monroe Doctrine illustrated waning presidential influence

Examples of Presidential Leadership

Andrew Jackson expanded the use of presidential power- considered revolutionary. This included enactment of the spoils system, making greater use of the veto

Examples of Presidential Leadership

Abraham Lincoln applied emergency war powers during the Civil War, and later initiated a plan for Reconstruction

Bottom LineTaken by and large, the history of the Presidency

has been a history of aggrandizement:JeffersonLincolnT.R. RooseveltFDRReagan

Breakdown of Federalism and the Separation of Powers

The great accession to presidential power in recent decades has, however, taken place in the internal as well as in the external field of Government, and has been signalized by the breakdown of the two great structural principles of the American Constitutional System,

the doctrine of dual federalism and the doctrine of the separation of powers;

New Deal Shift Stressed the need for Presidential Power

The Great Depression and F.D.R' s response brought a change of even more fundamental character in popular outlook regarding the purpose and scope of governmental power.

I mean the replacement of the laissez-faire theory of government with the idea that the national government should make itself an active, reforming force in the field of economic enterprise

Congressional Delegation of Powers

Congress, in responding to the President’s leadership in its own peculiar field, has found it convenient to aggrandize his executive role enormously, by delegating to him the power to supplement its measures by a type of sub-legislation called “administrative regulations.”

Administrative Departments and Agencies

Congressional delegations of quasi-legislative as well as quasi-judicial powers to regulatory agencies placed outside of presidential control have also created a Fourth Branch of the government.

Presidency is the Focus of Democracy

Congressional delegations of power to the Executive Branch especially in times of crisis have made the President the focus of popular expectations

At such times the President rises above the separation of powers to govern using both the prerogative powers of Article II and delegated powers from Congress.

Conclusion: Factors Defining the Modern Presidency

(1) social acceptance of the idea that government should be active and reformist, rather than simply protective of the established order of things;

(2) the breakdown of the principle of dual federalism in the field of Congress’s legislative powers;

(3) the breakdown of the principle of the separation of powers as defining the relation of President and Congress in lawmaking;

Factors Shaping Modern Presidency (cont.)

(4) the breakdown of the corollary principle that a legislature may not delegate its powers; and

(5) the impact on the President’s power as Commander-in-Chief and organ of foreign relationship, of two world wars and the vastly enlarged role of the United States in the international field.

The Presidency: Focus of Leadership (C. Rossiter)

The presidency is a unique concentration of power and prestige

There is an extraordinary capacity of the presidency for strong, able, and popular leadership– Leader of the Executive Branch: 2.3 million Americans work in

the national administration– Twin powers of appointment and removal– Supervises that laws are faithfully executed– Commander in Chief of the Army and Navy

• In time of war this power swells out of proportion

– Leader in foreign affairs– Leader of Congress

The Presidency: Focus of Leadership (C. Rossiter)

– Leader of his party– No. 1 political boss– Leader of public opinion– Spokesman for the real sentiment and purpose of the country– Chief of State: ceremonial head of the government– Leader of the free nations

The president can only lead us in the direction we are accustomed to travel

The presidency is our only truly national political institution

Presidential Power (R. Neustadt)

We like to rate our presidents from the moment they take office

In form, all presidents are leaders Presidents face demands from 5 sources:

– Executive officialdom– Congress– His partisans– From citizens– From abroad

Constituent relations are relations of dependence No man or group shares his status in our government

and politics

Presidential Power (R. Neustadt)

If ballot-splitting continues, it will soon be un-American for president and Congress to belong to the same party

It would be advantageous if the executive and legislative leadership were linked by party ties

We are a long way from party government Bargaining, not discipline, still remains the key to

congressional action on a president’s behalf All presidents after George Washington were party chiefs Theoretically, presidents should be able to use their role

as party chief to bridge the constitutional gap created by the separation of powers

The Presidential Character (J.D. Barber)

When a citizen votes for a president, he makes a prediction

In the face of chaos, citizens usually vote their old allegiances

The presidency is an institution made a piece at a time The president is a symbolic leader who draws people’s

hopes and fears The president is the best-recognized person in the

country who gets the most attention The White House is a place of public leadership

The Presidential Character (J.D. Barber)

Crucial differences in administrations: president’s character, his world view, and his style

The president’s personality is an important factor in understanding his behavior– Personality is patterned– It interacts with the power situation he faces– To best predict a president’s character, world view, and style,

one must look at how they were put together The degree and quality of a president’s involvement in an

issue influences how he defines the issue itself Style is the president’s habitual way of performing, his

way of acting

The Presidential Character (J.D. Barber)

World view consists of political relevant beliefs, his way of seeing

Character is the way the president orients himself towards life

Self-esteem is his prime personal resource Popular support is a large factor in a president’s

performance People look to a president for reassurance Four Types of Presidential Character

– Active-Positive: much activity and enjoyment of it, ex.: Jefferson– Active-Negative: intense effort and low emotional reward, ex.: J.

Adams

The Presidential Character (J.D. Barber)

– Passive-Positive: life is a search for affection as a reward for being agreeable and cooperative, ex.: Madison

– Passive-Negative: they are in politics because they think they ought to be. The tendency is to withdraw and escape from uncertainty.

A president is a man with a memory in a system with a history

The Presidency and Political Parties (S.M. Milkis)

The relationship between the presidency and the American party system has been difficult

The Founders established a nonpartisan president– The president is nominated by a party, but is not elected by it

The modern presidency was crafted with the intention of reducing the influence of the party system on American politics

New Deal Party Politics– The New Deal questions the adequacy of traditional natural

rights and limited government responsibility– It was a commitment to guarantee a decent level of economic

well-being for American people

The Presidency and Political Parties (S.M. Milkis)

– The new constitutional order would require a more centralized and administrative government

– The presidency would be a national, executive-oriented system organized on the basis of public issues

– The New Deal helped the president replace partisan politics with executive administration

• It extended the merit system

Lyndon Johnson’s Great Society– The New Deal established the presidency rather than the party

as the locus of political responsibility– Johnson accelerated the effort to transcend partisan politics

The Presidency and Political Parties (S.M. Milkis)

Nixon and the Demise of the Modern Presidency– Executive authority was concentrated in the White House– Nixon viewed the party system as an obstacle to effective

governance– The Watergate scandal strengthened opposition to the unilateral

use of presidential power– He left the office in complete institutional isolation, which

continued during the Ford and Carter years

Reagan and the Revitalization of Party Politics– The erosion of old-style partisan politics allowed a more national

and issue-oriented party system to develop– The Republican Party in particular developed a formidable

organizational apparatus

The Presidency and Political Parties (S.M. Milkis)

– Reagan broke with the tradition of the modern presidency and identified closely with his party

– A strong Republican Party provided Reagan with the support of a formidable institution

– The Republican Party strengthened Reagan and Reagan’s popularity strengthened his party

– Reagan frequently pursued programs with acts of administrative discretion that short-circuited the legislative process

Reagan and Bush– 1988 election: Republican dominance in the White House while

the Democrats increased in numbers almost everywhere else– The unprecedented partisan and electoral division characterized

the era of divided power

The Presidency and Political Parties (S.M. Milkis)

Clinton and the Politics of Divided Democracy– In 1992, Democrats captured the presidency and preserved

majorities in Congress– Clinton promised to restore consensus to American politics– Confrontation emerged when Clinton announced support for

homosexuals in the military and reversed a Reagan executive order of forbidding abortion counseling at federally funded clinics

– Clinton’s support for NAFTA went against the interests of labor unions

– His ambitious healthcare program angered conservatives and when it failed, disillusioned liberals

– In 1996, Clinton failed to endorse candidates from his party– Clinton became the first elected president since Andrew Johnson

to be impeached

The Presidency and Political Parties (S.M. Milkis)

George W. Bush and the Ratification of the Modern Presidency– Bush and Gore took centrist, pragmatic positions– Both distanced themselves from their parties– The conclusion of the election failed to arouse popular passions– Bush’s “compassionate conservatism” embraced the Republican

conservative values– In 2001, Republicans lost control of the Senate– Bush sought to attract people from different sectors:

• Faith-based initiatives (Christian conservative groups)• Education reform (state governors)• Medicare’s prescription drug program (retired persons)

– Bush’s administration has been more attentive to party building than any other White House

The Presidency and Political Parties (S.M. Milkis)

His display of religiosity and moral language has energized Republican partisans

Since the 1970s the Republican Party has been developing what can be called “the first national party machine,” based on grassroots mobilization

The new party system is more amenable to presidential governance, but not completely subordinate to it

Ex Parte Milligan (1866)

Background: After the terrorist acts of September 11, 2001, Bush sought wide prerogative and new statutory powers to deal with the war on terrorism. The presidential quest for emergency powers is always greatest in time of war. In 1861, President Lincoln secretly authorized the suspension of the writ of habeas corpus in the vicinity of the military line in Maryland.

Ex Parte Milligan (1866)

Lambdin P. Milligan presented a petition to be discharged from an alleged unlawful imprisonment

In 1864, he was brought before a military commission at Indianapolis, tried, found guilty, and sentenced to be hanged

He insisted that the military commission had no jurisdiction to try him and that his right to a civilian trial had been ignored

The Court’s decision:– Every American citizen has a right to be tried and punished

according to law– Laws and usage of war cannot be applied to citizens in states

which have upheld the authority of the government

Ex Parte Milligan (1866)

– Constitutional provisions were infringed when Milligan was tried by a court not ordained and established by Congress

– Another guarantee of freedom was broken when he was denied a trial by jury

– His trial and conviction by a military commission was illegal

Chief Justice’s dissent:– When the writ of habeas is suspended, the president may:

• Arrest as well as detain• Punishment by military commissions, as well as arrests and

detentions, in states where civil courts are open may be authorized by Congress

Presidential Power, Due Process, and the Separation of Powers in the

Time of the War on Terror

BOUMEDIENE ET AL. V. BUSH, PRESIDENT OF THE UNITED STATES

United States Supreme Court, 2008

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg,

and Breyer, JJ., joined.

Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2.

We hold these petitioners do have the habeas corpus privilege.

Detainee Treatment Act of 2005Congress has enacted a statute, the Detainee

Treatment Act of 2005 (DTA), that [in effect although not formally suspends the writ of habeas corpus and] provides certain procedures for review of the detainees’ status.

We hold that those procedures are not an adequate and effective substitute for habeas corpus.

Military Commissions Act of 2006

The Military Commissions Act of 2006 provides that military commissions have final authority to rule on detainee cases.

De facto this denies the right of habeas corpus and is unconstitutional.

We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue.

Detainees as Enemy Combatants

In deciding the constitutional questions now presented we must determine whether petitioners are barred from seeking the writ or invoking the protections of the Suspension Clause either because of their status, i.e., petitioners’ designation by the Executive Branch as enemy combatants, or their physical location, i.e., their presence at Guantanamo Bay.

Government ArgumentThe Government contends that noncitizens

designated as enemy combatants and detained in territory located outside our Nation’s borders

have no constitutional rights and no privilege of habeas corpus.

Petitioners' Argument

Petitioners contend they do have cognizable constitutional rights and that Congress, in seeking to eliminate recourse to habeas corpus as a means to assert those rights, acted in violation of the Suspension Clause.

History and Origins of the Writ of Habeas Corpus

First, protection for the privilege of habeas

corpus was one of the few safeguards of liberty specified in a Constitution that, at

the outset, had no Bill of Rights.

In the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause.

History of Habeas CorpusThe constitutional Framers considered the writ of

Habeas Corpus to an essential component of liberty

Magna Carta decreed that no man would be imprisoned contrary to the law

of the land.

Gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled

The Constitution is the Supreme Law of the Land

The Courts alone say what the law is

The Supreme Court has final authority to interpret the Constitution (Marbury v. Madison, 1803).

The political branches, Congress and the President, can not overturn rights the Constitution guarantees, such as the right to Habeas Corpus.

Courts Must Uphold the Constitution

Within the Constitution’s separation-of powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.

The Separation of PowersThis decision does not undermine the

legitimate authority of the President and Congress.

The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.

Chief Justice Roberts, with whom Justice Scalia, Justice Thomas, and Justice

Alito join, dissenting.

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.

The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate.

The Court Has Overstepped the Proper Boundaries of its Authority

The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date.

Undue Judicial Interference with the Political Branches

One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

Justice Scalia, joined by the Chief Justice, Justice Thomas, and Justice Alito dissenting

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

No Suspension of Guarantees of the Writ of Habeas Corpus

The Chief Justice’s dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees;

there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows.