The presidential powers in the U.S.

The president of the US is always in the spotlight. His actions are open to debate because the Presidency is considered the most important office in the US government. Probably, the most powerful. So, it’s time to find out the presidential powers and see how true this belief is.

 Today, I want to speak to you about the presidential powers in the US.

 The president of the US is always a controversial figure on the political stage. That’s because he’s the head of State and head of the government. He directs the executive branch of the federal government. He is also the commander-in-chief of the United States Armed Forces. So, the Presidency is associated with specific powers that make the president look relevant in political terms. For this reason, the president is a matter of public debate.

 Here, I intend to analyze the presidential powers, not only from a constitutional perspective but also from a factual point of view. In this way, we’ll be able to asses the real power of the US president, and find out how politics works behind the scenes.

 Let me make clear the structure of the discussion. First, I’m going to speak about the constitutional powers of the Presidency. Second, the implied powers. And finally, the soft power of the president. After that, I’ll address the constraints of the president inside the executive branch. Let’s get started.

Constitutional powers

The constitutional powers include those presidential prerogatives provided by the US constitution. They are the power to sign or veto legislation, command the armed forces, ask for the written opinion of the Cabinet, convene or adjourn Congress, grant reprieves and pardons, and receive ambassadors. Furthermore, and in conformity with his duties, the president has the authority to appoint and remove executive officers, justices of the Supreme Court, and some officers with the advice and consent of the Senate. In the realm of foreign policy, the president can make treaties that need the ratification of the Senate, and controls the communication of foreign policy and directs the nation’s diplomatic corps.

In the military field, the US constitution explicitly designates the president as: “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” In the same vein as British military traditions, the president is formally the ultimate authority of the armed forces.

Until 1947, the president was the only common superior of the Army and the Navy and Marine Corps. Yet, after the approval of the National Security Act of 1947 and the 1949 amendments to the same act, the military (Army, Navy, Marine Corps, and Air Force) became under the authority, direction, and control of the secretary of defense. So, the present-day operational command of the Armed Forces is delegated to the Department of Defense.

Within the executive branch itself, the president enjoys broad powers to manage national affairs and the priorities of the government. He can issue rules, regulations, and instructions known as executive orders that have the binding force of law on federal agencies but don’t require the approval of the Congress. Nevertheless, executive orders are subject to judicial review and interpretation.

Although the president can veto any bill, Congress can override his decision with a two-thirds vote in both Houses. Generally, the presidential veto is pressure for Congress to modify a bill, so the president would be willing to sign it. However, the president usually resorts to other means to influence legislation, such as the control of his party. Indeed, much of the legislation dealt with by Congress is drafted at the initiative of the executive branch. And the president also may personally put forward legislation in annual and special messages to Congress, including the annual State of the Union address and joint sessions of Congress.

Regarding the appointment of federal officials, this task ranges from top officials at US government agencies, to the White House Staff, and members of the United States diplomatic corps. The president appoints many of these positions with the advice and consent of the Senate. That is the case within the judicial branch. The president not only appoints justices of the Supreme Court but also federal judges, such as members of the US courts of appeals.

Another critical aspect of the Presidency is the emergency powers. The constitution doesn’t grant the president additional powers in times of national emergency. Yet, in American history, there have been several exceptional situations that permitted him extraordinary powers. However, that has been very controversial, and Congress is the only institution that has the authority to grant such powers to the president.

As part of the presidential powers is the executive privilege. It gives the president the ability to withhold information from the public, Congress, and the courts in national security and diplomatic affairs. Nevertheless, this privilege is not absolute, as the Supreme Court ruled in United States v. Nixon.

So far, we’ve seen the most important constitutional powers, and now it’s time to move on and take a look at the implied powers of the Presidency.

Implied powers

Implied powers historically have been the cause of bitter quarrels in American politics. That’s because powers authorized by the constitution that, while not stated, seem implied by powers that are expressly stated. So, the difficulty here is to define what these powers encompass.

Indeed, this issue is really fascinating because it tells a lot about the political evolution of the US, and explains one of the leading causes of the secession war. But let’s focus on its implications in constitutional terms.

The implied powers theory has its roots in the political debates at the end of the eighteenth century. They reflected the very different ways of considering the nature of the Union, and more specifically, the role of the federal government. There were two opposite political models and projects for the US, and they revolved mostly around the powers of the executive branch. I don’t want to go into this in-depth, but some comments are necessary.

Aside from the disagreements that arose during the elaboration of the second constitution in 1787, the debate about implied powers started when George Washington asked Alexander Hamilton to defend the constitutionality of the First Bank of the United States against those who claimed its unconstitutionality.

Then, Hamilton devised the classic statement for implied powers. He argued that the sovereign duties of a government involved the right to use means adequate to its ends. Although the United States government was sovereign only as to certain objects, it was impossible to define all the means it should use because it was impossible to anticipate all future contingencies. This reasoning led Hamilton to develop the “general welfare clause” and the “necessary and proper clause” to give elasticity to the constitution.

It would take too much time to explain both clauses, so, for now, I’ll set forth some general ideas about them to make clear the concept of implied powers.

The general welfare clause has been very controversial. The dispute over the clause revolves around two particular disagreements. The first is related to the nature of the clause, whether it grants an independent spending power or, on the contrary, is a restriction upon the taxing power. And the other disagreement is about what exactly means the expression “general welfare.”

There are two conflicting interpretations of this clause that James Madison and Alexander Hamilton set forth. The winning argument is Hamilton’s. He argued for a broad interpretation that considered spending as an enumerated power that Congress could exercise independently to benefit the general welfare. That’s because the expenditure is general and doesn’t favor any specific section of the country over any other.

Regarding the necessary and proper clause, also known as the elastic clause, it’s present in Article I, Section 8 of the constitution. It says: “The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Consequently, this clause expressly confers incidental powers to the executive branch, which includes the Presidency. That means some powers are not explicitly stated in the constitution, but which are necessary to the execution of Congress decisions. So, these powers are mainly instrumental, and they follow the principle of effectiveness to fulfill Congress’ will.

This clause was controversial insofar as its inclusion during discussions of the proposed constitution became a focal point of criticism for those who opposed the constitution’s ratification. In this way, Anti-Federalists showed concern over the consequences of this clause by granting the federal government boundless power. The winning argument was set forth by Alexander Hamilton by stating the clause would only permit the execution of power already given by the constitution.

Although it’s not essential for the current discussion, I want to mention a notable Anti-Federalist such as Patrick Henry who claimed the clause would lead to limitless federal power that would inevitably threat individual freedom.

In brief, implied powers are those powers that the president enjoys, but the constitution doesn’t explicitly state them. For this reason, they’re difficult to enumerate because they’re instrumental in implementing Congress’ decisions.

Soft Power

The president also has soft power. What is it? In contrast with hard power, which is based on coercion, soft power is the ability to attract and co-opt. Therefore, soft power is the ability to shape the preferences of others through appeal and attraction. Indeed, it has more to do with influence.

Soft power includes a wide range of different means, and the president uses them at his will when he needs it. The target may be members of the federal government or the public.

Bargain, concessions, appointments, meetings, public statements, announcements, interviews, press conferences, and so on, are typical in soft power practices. By these means, the president influences those who are of his interest to get their consent or support. In general, we’re speaking about informal procedures in which the prestige and credibility are the main assets to achieve goals. In this case, the Presidency’s reliability and reputation are the driving force of its influence on all social and political levels. It helps change minds, attract wills, and even deter possible enemies.

Therefore, soft power resources are the assets that produce attraction that often leads to acquiescence. They entail a kind of seduction, regardless of the way they appear. For this reason, they usually work at the level of ideas, values, symbols, representations, prospects, images, gestures, and so on.

Let me give an example. When it’s necessary to implement a specific public policy, the president uses his influence to introduce bills in Congress. For this purpose, he deals with representatives, has meetings, makes concessions, and so on, to pass the bill.

Hence, the president resorts to soft power instruments to get his goals by indirect means, that is, by shaping the environment for policy. It normally involves the use of critical resources outside of the president’s control. Yet, soft power works well if it’s intelligently combined with different elements such as culture, values, or policies. In addition to this, it turns out to be very effective when it’s part of a comprehensive political communication strategy. 

In brief, soft power is a specific kind of power that allows the president to achieve his goals by using seduction and persuasion. In this way, he attracts and co-opts to get collaboration and support.

Is the Presidency a powerful institution?

It seems the Presidency is a powerful institution. The constitutional powers, besides the wide range of implied powers, and the influence of soft power, make it look overwhelming. The mass media attention and the periodical remarks of the president put him in the spotlight. But there is a dark side, out of the public sight, that hides the big picture. Let’s take a look at it.

The Presidency is not an almighty institution. Indeed, it has many different constraints in the legislative and judicial branches. They limit the scope of the president, as I discussed on another occasion.

Furthermore, the Presidency itself is just a small part of a broader impersonal power structure. That structure has a life of its own because thousands of laws and other rules organize its working and internal dynamics. Because of that, the president is constrained within the executive branch. In fact, he’s just another bureaucrat in a complex organization with more than 3 million officials.

So, this bureaucratic structure accumulates a vast amount of human and economic resources with a nearly 4 trillion dollars budget. Such social and financial wherewithal makes the executive branch an organizational juggernaut. For this reason, the president can’t manage it by himself, and that makes him dependant on what is supposed to be an instrument at his service.

I have to stress that the federal administration doesn’t work as an army, and it isn’t an autocracy either. That means the powers of the president are more theoretical than real. For instance, when a president-elect takes office, his transition team must appoint people to more than 6,000 federal positions. Naturally, most of them are unknown to the president. But he has to sign these appointments or give his approval. Indeed, the president spends a considerable amount of time immersed in paperwork. He just follows the rules and his counselors’ advice.

The situation is even gloomier if we take a look at the overwhelming power of the national security bureaucracy. That is very clear when we look at the changes boosted by the National Security Act of 1947. Since then, the military has been in theory under the authority, direction, and control of the secretary of defense, but the reality is the opposite, and it controls itself.

President Truman didn’t hesitate to state in his memoirs that generals and admirals, rather than working for and under the secretaries, succeeded in having the secretaries act for and under them. In addition to this, he regretted how his elected successor, Dwight Eisenhower, would be surprised by the bureaucratic inertia when he realized his lack of authority as president.

The president doesn’t have the final decision of most issues his administration has to face. He’s surrounded by many people, such as counselors, legal advisors, experts, bureaucrats, high-rank officials of all departments, directors of federal agencies, generals, diplomats, and so on. People we’ve never heard their names or seen their faces, who operate out of the public sight. They all take part in important decisions and, in fact, determine the decision-making process by selecting the possible alternatives. They pre-cook such choices and guide the president to get his consent. If the president doesn’t consent, he gets into trouble with dangerous people.

So, what is the role of the president? It’s simple. He legitimates the power structure that, in theory, is under his authority. And he does it by signing and consenting those decisions made by bureaucrats. Then, he has to sell these decisions to the public by explaining and justifying them. His function is to keep the faith of the people in their institutions. The president plays his role in a play written by somebody else.

Presidents come back and forth, they are, as elected officials, temporary occupants of their posts. If something goes wrong, they take on responsibility and are sacrificed for the good of the establishment. They are, all in all, expendable.

Question of the day

Question of the day! Do you think there is a solution to this situation? If so, post it in the comments section below, and I’ll check it out.

Bibliography used:

Woods Jr., Thomas E., 33 Questions About American History You’re Not Supposed to Ask

Syrett, Harold C. et alii (eds.), The papers of Alexander Hamilton Vol I Vol. II

Dawson, Joseph G.  (ed.), Commanders in Chief: Presidential Leadership in Modern Wars

Fairlie, John, “The Administrative Powers of the President” in Michigan Law Review 2 (3), 1903, pp. 190–210

Morgan, Edmund S., The Birth of the Republic

Watkins Jr., William J., Reclaiming the American Revolution

Nye Jr., Joseph S., Soft Power: The Means to Success in World Politics

Waller, Michael J. (ed.), Strategic Influence: Public Diplomacy, Counterpropaganda and Political Warfare

Carroll, James, House of War

Glennon, Michael, National Security and Double Government

Mills, Charles W., The Power Elite

Bagehot, Walter, The English Constitution

Graeber, David, The Utopia of Rules

Burnham, James, The Managerial Revolution

Truman, Harry S., Years of Trial and Hope

Neustadt, Richard E., Presidential Power: The Politics of Leadership

Disclosure: Some of these links are affiliate links where I’ll earn a small commission if you make a purchase at no additional cost to you. As an Amazon Associate I earn from qualifying purchases.