theexecutive - florida state...

The Executive

John N. Lee

Florida State University

Summer 2010

John N. Lee (Florida State University) The Executive Summer 2010 1 / 20

Evolution of the Presidential Election System:

Originally Vice President was the candidate who received the secondhighest number of electoral votes.

1796: John Adams is elected President and Thomas Jefferson iselected Vice President. First time VP and President were fromdifferent parties.

Twelfth Amendment: Separates the offices of Vice President andPresident. Both received individual votes.


Qualifications to be President:

1 President must be a natural born citizen.

2 President must be thirty five years old.

3 President must have been resident of United States for fourteen years.


Electoral College:

Designed to allow general electorate to have some say in choice ofPresident but not actual choice.

States usually have popular elections to determine which way theirelectoral college members should vote.

President does not need to win the most popular votes, just the mostelectoral votes (e.g. Bush/Gore 2000).


Removal By Impeachment:

Two-Stage Process

House of Representatives investigates charges against the President. Ifconvinced of sufficient evidence Congress passes Articles ofImpeachment authorizing impeachment trial by Senate.Trial takes place in Senate where chief justice presides. Convictionrequires two-thirds of the voting senators.

Congress can only remove President from power no other penaltiesmay be imposed.

Congress has never removed a President from power.


Term Length and Limit

Terms are four years long.

Term limit is two terms.

Twenty-third Amendment: President may not serve more than twoterms or six years in office.


Executive Power

The President has the power to:

“make treaties, provided two thirds of the Senators present concur.”“nominate, and by and with the Advice and Consent of the Senate,shall appoint Ambassadors, other public Ministers and Consuls, Judgesof the supreme Court, and all other Officers of the United States.”


Executive Power

“The Executive Power shall be vested in a President.”

Two points of view on what this means:

1 Mere Designation View suggests that the above sentence summariespowers listed later on in Article II.

2 General Grant of Power View suggests that as long as theconstitution or congress have not restricted the president, they havethe powers within Article II as well as any other power they need to runthe nation.

In Re Neagle (1890) President authorizes protection for court Justicewho had been threatened. Neagle (the Justices protection) killssomeone while on duty. Supreme Court rules that President can makethis authorization even though it is not explicitly in the Constitution.


Executive Power:

How far does the General Grant of Power go?

Unitary Executive:

General Grant of Power on Steroids.“when a President claims prerogative to attach signing statements tobills and asserts their right to modify implementation or ignorealtogether provisions of a new law that encroaches on theirconstitutional prerogatives as ‘the chief executor (KGK, )”’


Limits on Executive Power:

1 Congressional Limit President cannot act against the will ofcongress.

Youngstown Sheet and Tube Company v. Sawyer (1952) UnitedStates at war with Korea. Workers at steel mill threaten to go on strikeand shut mill down. Truman seizes plant and keeps it running tosupport war effort. Supreme Court strikes down action on the groundsthat Congress had not authorized it (Taft-Hartley Act).

2 President must enforce laws on the book.


Veto Power:

If a bill is passed the President has three options:1 Sign it (it becomes law)

Signing Statement − “A statement issued by the President that isintended to modify implementation of a new law (KGK, ).”

2 Veto it (Congress can override with 23 vote).

3 Do nothing

1 If after ten days the Congress is in session and the President has notsigned the bill it becomes law by default.

2 If after ten days the Congress is out of session and the President hasnot signed the bill it is vetoed. This is called a Pocket Veto.


Line Item Veto

Line Item Veto Act (1996) − Gave President authority to removesome tax and spending benefits of legislative after the bill was signedinto law. Bill was designed to remove pork-barrel legislation.

Pork Barrel Legislation “legislation that provides members ofCongress with federal projects and programs for their individualdistricts (KGK, 790).”

Clinton v. City of New York (1988) − Supreme Court strikesdown the Line Item Veto Act as unconstitutional.


The Power to Appoint Executive Officers

Two types of Executive Officials:

Principal Officials − Must be appointed by the President andapproved by the Senate.Inferior Officials − Can be appointed through some other procedureapproved by Congress.

Buckley v. Valeo (1976) − Congress creates FEC and createdcongressional committee to control the agency. Supreme Court rulesthat the leaders of the FEC were principal officials and thus had to beappointed by the President and approved by the Senate.


The Power to Remove Executive Officials

No set guidelines in the constitution.

Two points of view:1 Let the President remove without congressional approval. The logic

behind this argument is the President needs to be able to remove thosewho do not meet/prevent his goals.

2 The President needs congressional approval to remove. The logicbehind this argument is, if the Senate is required to appoint theofficials then they should be required to remove.

Myers v. United States (1926) − President tries to firepostmaster. Supreme Court rules that this action is constitutional.

Humphrey’s Executor v. United States (1935) − President triesto change head of FTC. Supreme Court rules this unconstitutional.The ruling argues that the President can only remove thoseindividuals who serve purely executive jobs.


Executive Privilege

Not explicitly in constitution.

Generally accepted that Congress cannot compel the President totestify.

Executive privilege claims rarely succeed unless it involves amilitary/security issue.

United States v. Nixon (1974) − Nixon tapes himself talking aboutcriminal actions. Supreme Court ruled that Nixon was not protectedby executive privilege, that the interest of the public outweighed.


Executive Immunity

President cannot be sued.

Mississippi v. Johnson (1867) − Mississippi sues President toprevent him from enforcing law. Supreme Court rules that Presidentcannot be sued.

Georgia v. Stanton (1868) − While the President cannot be sued,members of his executive administration can be sued.

Nixon v. Fitzgerald (1982) − Ruled the President cannot be suedafter he leaves office.

Clinton v. Jones (1997) − Ruled that the President can be suedwhile in office for actions undertaken before he was President.


The Power to Pardon

The President “shall have Power to grant Reprieves and Pardons forOffenses against the United States, except in Cases of Impeachment.”

Pardon − erases the penalties imposed on an individual for a crime inthe United States.

Ex Parte Grossman (1925) − Ruled that the President has thepower to pardon someone for judicial contempt.

Murphey v. Ford (1975) − Ruled that the president can pardonindividuals for crimes they have not been indicted of yet.


The Legislative President

Unified Government − Same political party controls both theexecutive and legislative branches of government.

Divided Government − Different political parties control theexecutive and legislative branches of government.

Example: Democrats control congress and Republicans control thePresidency.


Divide Government

Gridlock − “government accomplishes little and may even come to ahalt (KGK, 339).”

Going Public −

Presidential strategy to get legislation passed.When the President engages “in intensive public relations to promotethe president’s policies to the voters and thereby induce cooperationfrom other elected officeholders in Washington (KGK, 344).”


Executive Orders

Executive Order − “A presidential directive to an executive agencyestablishing new policies or indicating how an existing policy is to becarried out (KGK, 785).”

Executive Orders have force of law until:1 Congress eliminates it.2 The President retracts it.3 The Supreme Court rules against it.


Executive Orders

Executive Orders start being published daily in 1907. Since then13,500+ executive orders have been written.

Why Executive Orders?1 Enforce existing laws.2 Take Care Clause − “The provision of Article II, Section 3, of the

Constitution instructing the President to ’take care that the laws befaithfully executed (KGK, 793).’ ”


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