By Ben Lenhart
Patriots fought the America Revolution for many reasons, not least of which was an intense desire to escape the rule of a distant king—George III. In fact, Americans were so opposed to the idea of a king that they didn’t include an independent president in the government created under our first constitution—the Articles of Confederation. However, it soon became apparent that a government without a president or comparable leader was insufficient for the needs of the new and growing America. Many, including James Madison and Alexander Hamilton (see for example the Federalist Papers #70) came to believe that a strong president was needed to “take the reins of government,” enforce the laws, and help steer the country forward. With its many flaws, the Articles of Confederation lasted less than 10 years before being replaced by our current Constitution.
Balancing the President’s Power. With this background, the drafters of the new constitution faced a delicate balancing act when they met in 1787 in Philadelphia. On one hand, most everyone despised the idea of a king or any similar autocrat who would threaten American’s hard fought freedoms. On the other hand, most realized that for practical reasons, America needed a president—someone in whom America’s executive power would be vested. With 230 years of hindsight, we can safely say that the Constitution does a superb job of striking that balance. Specifically, how does the Constitution empower and constrain the President?
Vesting Clause. What is the President’s most important power? Look no further than the first sentence of Article 2: “The executive Power shall be vested in a President of the United States of America.” Known as the vesting clause, this short but potent sentence gives the President enormous power and responsibility to enforce federal laws. The vastness of this power lies in large part in the discretion given the President to decide just how to carry out the laws: When enforcing federal voting laws should the President focus on voter access or voter fraud? When enforcing environmental laws should he focus on clean air and water or on cutting environmental “red tape” to help business? When enforcing immigration laws, should he focus on immigrant services or border enforcement? Each of these Presidential choices may be entirely valid and legal— because laws passed by Congress often leave lots of wiggle room— but each would lead to very different outcomes for America.
How does the Constitution check and balance the vesting clause? Articles 1 and 3 play key roles. Under Article 1 Congress can check executive power in many ways. First, only Congress— not the President—can actual “make” laws. See below for examples of Presidents being called to account for violating this simple yet vital rule. Second, if Congress dislikes how the President is enforcing a law, it can block the President’s actions by amending the law or passing a new law. Third, Congress can impeach the President if he truly fails to execute the laws (and that failure rises to treason, bribery or another high crime or misdemeanor). Under Article 3 the courts regularly strike down efforts by the President to enforce laws in a manner that is unconstitutional or contrary to the law being “enforced” (see examples below).
War. The President is Commander in Chief of the armed forces, but only Congress can declare war. Congress also controls the purse strings to fund (or defend) the military. In theory, the Constitution carefully balances war powers between the President and Congress. In practice, however, war power has tilted strongly toward the President. American Presidents have deployed military forces well over 100 times, and yet Congress has declared war only five times, and not once since World War II (Congress also occasionally passes resolutions on the use of force). In short, the President has been far more willing than Congress to use war powers and “take the political heat” on war-making. If power belongs to those who use it, American war power now largely belongs to the President, despite a clear Constitutional structure that “checks and balances” that power.
Foreign Affairs. The President has broad power over America’s foreign affairs, including the right to make treaties and appoint ambassadors. To offset this power, the Constitution requires the Senate to ratify treaties and confirm ambassadors, thus preventing the President (in theory) from entering into treaties that are blatantly bad for America or nominating wholly unqualified ambassadors. More fundamentally, the President can’t exercise his foreign-affairs powers in violation of other Constitutional rights or requirements.
Veto. The President’s right to veto legislation is another potent executive power, but this power can be overridden by 2/3 vote of Congress (giving Congress the last word here).
Appointment/Removal. The President is empowered to appoint many high officials including, importantly, justices of the Supreme Court. He also has the power to remove certain officials. The powers to appoint and remove often translate into the power to control. However, as with ambassadors, the Senate’s confirmation power serves as an important check on many nominees including those to the Supreme Court (see, for example, the Bork nomination).
Pardon. The President’s pardon power is unusually broad compared to other executive powers, but even this power is checked in several key ways: it can’t be applied prior to a law violation, and it doesn’t apply to state law matters or to impeachment proceedings.
Use and Abuse of Presidential Power – Real World Examples
Truman and Steel Mills. In the famous “Steel Seizure” case, the Court found that President Truman had exceeded his executive power when he seized steel mills during the Korean War. Justice Jackson’s concurrence in that case remains a central test for determining whether an act of the President is lawful (it focuses on the extent to which the President’s actions align with an act of Congress).
Nixon and Tapes. President Nixon refused to release Watergate tapes, citing executive privilege. The Court disagreed and ordered Nixon to produce the tapes (Nixon resigned soon afterward).
Clinton and Jones. President Clinton wanted to stop Paula Jones’s sexual harassment lawsuit, but the Court disagreed and said it could go forward so long as the suit accommodated the schedule and demands of the Presidency.
Bush and Guantanamo. After 9/11 President Bush set up military tribunals and other procedures that provided limited rights for prisoners held at Guantanamo. In several cases, the Court struck down parts of those procedures and ordered Bush to afford certain due process rights (include Habeas Corpus) to the Guantanamo detainees.
Obama and Search Warrants. President Obama claimed that no warrant was needed for the government to search cell phones after an arrest. In a sharp rebuke, the Court unanimously disagreed and held that the 4th Amendment warrant requirement applied with full force to cell phone searches.
Trump and the Travel Ban. In two executive orders, President Trump sought to deny entry into the U.S. to certain foreign nationals, including nationals from certain Muslim-majority nations. Several lower courts struck down portions of both orders, finding violations of various parts of the Constitution including the Equal Protection and Establishment Clauses. The Supreme Court reinstated parts of the second order pending oral arguments set for this fall. Stay tuned.
These cases are a small sampling of the many times that the Courts have said “No” to the President. The deeper meaning is this: Presidents have vast power and great armies under their command. Courts have no soldiers and little money or resources. Yet even when American Presidents have strongly disagreed with court rulings, they have always obeyed. This “rule of law” is invaluable but often taken for granted in America. Yet one need look no further than other countries lacking rule of law to see how easy it is for a president, even an elected one, to amass power to the point where he is no longer subject to checks and balances, and then the precious liberties of the citizens are in peril.
[Ben Lenhart is a graduate of Harvard Law School, and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]