Thepowers of thepresident of the United States include those explicitly granted byArticle II of theUnited States Constitution as well as those granted byActs of Congress,implied powers, and also a great deal ofsoft power that is attached to the presidency.[1]
The Constitution explicitly assigns the president the power to sign orveto legislation, command thearmed forces, ask for the written opinion of theirCabinet, convene or adjournCongress, grant reprieves andpardons, and receive ambassadors. The president takes care that the laws are faithfully executed and has the power to appoint and remove executive officers; as a result of these two powers, the president can direct officials on how to interpret the law (subject tojudicial review) and on staffing and personnel decisions. The president may maketreaties, which need to be ratified by two-thirds of theSenate, and is accorded those foreign-affairs functions not otherwise granted to Congress or shared with the Senate. Thus, the president can control the formation and communication of foreign policy and can direct the nation's diplomatic corps. The president may also appointArticle III judges and some officers with theadvice and consent of the U.S. Senate. In the condition of a Senate recess, the president may make atemporary appointment.
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The president is thecommander-in-chief of theUnited States Armed Forces as well as all federalizedUnited States Militia and may exercise supreme operational command and control over them. The president has, in this capacity,plenary power to launch, direct and supervisemilitary operations, order or authorize thedeployment of troops, unilaterally launchnuclear weapons, and form military policy with theDepartment of Defense andHomeland Security. However, the constitutional ability todeclare war is vested only in Congress.[2]
Article II of the U.S. Constitution expressly 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[3]
U.S. ranks have their roots in British military traditions, with the president possessing ultimate authority, but no rank, maintaining a civilian status.[4] Before 1947, the president was the only common superior of the Army (under thesecretary of war) and theNavy and Marine Corps (under thesecretary of the navy).[5] TheNational Security Act of 1947, and the 1949 amendments to the same act, created theDepartment of Defense and the services (Army, Navy, Marine Corps and Air Force) became subject to the "authority, direction and control" of thesecretary of defense.[6][7] The present-day operational command of the Armed Forces is delegated from the president to the Department of Defense and is normally exercised through its secretary. Thechairman of the Joint Chiefs of Staff and thecombatant commands assist with operations as outlined in the presidentially-approved Unified Command Plan (UCP).[8][9][10]
The exact degree of authority that the Constitution grants to the president as commander-in-chief has been the subject of much debate throughout American history, with Congress at various times granting the president wide authority and at others attempting to restrict that authority.[11] There is consensus that theframers of the Constitution intended Congress to declare war and the president to direct the war;Alexander Hamilton said that the president, although lacking the power to declare war, would have "the direction of war when authorized or begun", further explaining inFederalist No. 69 that "The President is to be commander-in-chief of the army and navy of the United States. ... It would amount to nothing more than the supreme command and direction of the military and naval forces ... while that of theBritish king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all [of] which ... would appertain to the legislature".[12]
Pursuant to theWar Powers Resolution of 1973, Congress must authorize any troop deployments longer than 60 days, although that process relies on triggering mechanisms that have never been employed, rendering it ineffectual.[13] Additionally, Congress provides a check to presidential military power through its control over military spending and regulation. Presidents have historically initiated the process for going to war,[14][15] but critics have charged that there have been several conflicts in which presidents did not get official declarations, includingTheodore Roosevelt's military move intoPanama in 1903,[14] theKorean War,[14] theVietnam War,[14] and the invasions ofGrenada in 1983[16] andPanama in 1989.[17]
The amount of military detail handled personally by the president in wartime has varied dramatically.[18]George Washington, the first U.S. president, firmly establishedmilitary subordination under civilian authority. In 1794, Washington used his constitutional powers to assemble 12,000 militiamen to quell theWhiskey Rebellion—a conflict in western Pennsylvania involving armed farmers and distillers who refused to pay excise tax on spirits. According to historianJoseph Ellis, this was the "first and only time a sitting American president led troops in the field", althoughJames Madison briefly took control of artillery units in thedefense of Washington D.C. during theWar of 1812.[19]
PresidentAbraham Lincoln was deeply involved in strategy development and day-to-day military operations during theAmerican Civil War, 1861–1865; historians have given Lincoln high praise for his strategic sense and his ability to select and encourage commanders such asUlysses S. Grant.[20] On the other extreme,Woodrow Wilson paid very little attention to operational military details ofWorld War I and had very little contact with the War Department or with GeneralJohn J. Pershing, who had a high degree of autonomy as commander of the armies in France.[21] As president duringWorld War II,Franklin D. Roosevelt worked closely with his generals and admirals, and assigned AdmiralWilliam D. Leahy as "Chief of Staff to the Commander in Chief".[22]Harry S. Truman believed in a high amount of civilian leadership of the military, making many tactical and policy decisions based on the recommendations of his advisors—including the decision to useatomic weapons on Japan, to commit American forces in theKorean War, and toterminateDouglas MacArthur from his command.[23]Lyndon B. Johnson kept a very tight personal control of operations during theVietnam War, which some historians have sharply criticized.[24]
The Iraqiinvasion of Kuwait in 1990 and the ensuingGulf War in 1991 sawGeorge H. W. Bush assemble and lead one of the largestmilitary coalitions of nations in modern times. Confronting a major constitutional issue of murky legislation that left the wars in Korea and Vietnam without official declarations of war, Congress quickly authorized sweeping war-making powers for Bush.[25] The leadership ofGeorge W. Bush during theWar in Afghanistan andIraq War achieved mixed results. In the aftermath of theSeptember 11 attacks byal-Qaeda, the subsequentWar on Terror that followed, and the2003 invasion of Iraq due to Iraq's alleged sponsorship of terrorism and possession of weapons of mass destruction, the speed at which theTaliban andBa'ath Party governments in both Kabul and Baghdad were toppled by an overwhelming superiority of American and allied forces defied the predictions of many military experts. However, insufficient post-war planning and strategy by Bush and his advisors to rebuild those nations were costly.[26][27]
During the 20th century, certain regional commanders came to be called "commander-in-chief".[28] Before 2002,combatant commanders were referred to as commanders-in-chief on a daily basis (e.g. Commander in Chief ofU.S. Central Command), even though the positions were in fact already statutorily designated as "combatant commander" (CCDR).[29] On 24 October 2002, Defense SecretaryDonald H. Rumsfeld announced his decision that the use of the commander-in-chief title would thereafter be reserved for the president only.[30]
As the purpose of a military is to combat foreign invaders and adversaries, U.S. troops cannot be deployed on U.S. soil. There is only one exception to this rule: if the president invokes theInsurrection Act of 1807 to quell civil turmoils, rebellions and insurrections.
The president can – with certain limitations – call into federal service all or individual units of theNational Guards andnaval militias ofthe states to either supplement regular forces, assist state governments in the case of rebellion or insurrection, or to enforce federal law when such enforcement is impracticable by normal means. Additionally, the president also maintains direct control over theDistrict of Columbia National Guard. As opposed to military forces, militia units can operate on American soil.
In times of war or national emergency, the Congress may grant the president broader powers to manage the national economy and protect the security of the United States, but these powers were not expressly granted by the Constitution.[31]
Suffice it to say that the President is made the sole repository of the executive powers of the United States, and the powers entrusted to him as well as the duties imposed upon him are awesome indeed.
Within theexecutive branch itself, the president has broad powers to manage national affairs and the priorities of the government. The president can unilaterally issue a variety of rules, regulations, and instructions, whose impact and visibility vary widely.Memoranda and other informal orders may not be published. National security directives may be classified. Public proclamations and international agreements are more easily tracked, as areexecutive orders, which have the binding force of law upon federal agencies but do not require approval of the United States Congress.[32]
Early examples of unilateral directives to enact politically controversial policies includeGeorge Washington'sProclamation of Neutrality (1793),Andrew Jackson'sNullification Proclamation (1832), andAbraham Lincoln'sEmancipation Proclamation (1862).[32]
TheBudget and Accounting Act of 1921 put additional responsibilities on the presidency for the preparation of theUnited States federal budget, although Congress was required to approve it.[33] The act required theOffice of Management and Budget to assist the president with the preparation of the budget. Previous presidents had the privilege ofimpounding funds as they saw fit, however theUnited States Supreme Court revoked the privilegein 1998 as a violation of thePresentment Clause. The power was available to all presidents and was regarded as a power inherent to the office. TheCongressional Budget and Impoundment Control Act of 1974 was passed in response to large-scale power exercises by President Nixon. The act also created theCongressional Budget Office as a legislative counterpoint to the Office of Management and Budget.
Executive orders are subject tojudicial review andinterpretation. Nonetheless, acting independently, a president can heavily influence and redirect the nation's political agenda and reshape its public policies.[32] As early as 1999,Terry M. Moe andWilliam G. Howell suggested that presidential capacity to pursue objectives unilaterally, rather than through Congress, "virtually defines what is distinctively modern about the modern American presidency."[34]: 133 This shift can be linked to other changes, in particular the polarization of political parties, increasing tendencies for congressional dysfunction, and the delegation of authority to the executive branch to implement legislative provisions.[32]
The president has several options when presented with abill from Congress. If the president agrees with the bill, he can sign it into law within ten days of receipt. If the president opposes the bill, he canveto it and return the bill to Congress with a veto message suggesting changes (unless Congress is out of session, in which case the president may rely on apocket veto).
Presidents are required to approve all of a bill or none of it;selective vetoes have been prohibited. In 1996, Congress gave PresidentBill Clinton a line-item veto over parts of a bill that required spending federal funds. TheSupreme Court, inClinton v. New York City, found Clinton's veto ofpork-barrelappropriations for New York City to be unconstitutional because only a constitutional amendment could give the president line-item veto power.[35]
When a bill is presented for signature, the president may also issue asigning statement with expressions of their opinion on the constitutionality of a bill's provisions. The president may even declare them unenforceable but the Supreme Court has yet to address this issue.[36]
Congress mayoverride vetoes with a two-thirds vote in both theHouse and theSenate. The process is inherently difficult and relatively rare. The threat of a presidential veto has usually provided sufficient pressure for Congress to modify a bill so the president would be willing to sign it.
Much of the legislation dealt with by Congress is drafted at the initiative of the executive branch.[37] In modern times, the "executive communication" has become a prolific source of legislative proposals. The communication is usually in the form of a message or letter from a member of the president's Cabinet, the head of an independent agency, or the president himself, transmitting a draft of a proposed bill to the speaker of the House of Representatives and the president of the Senate.[38] The president may personally propose legislation in annual and special messages to Congress including the annualState of the Union address andjoint sessions of Congress. If Congress has adjourned without acting on proposals, the president may call a special session of the Congress.
Beyond these official powers, the U.S. president, as a leader of his political party and the United States government, holdsgreat sway over public opinion whereby they may influence legislation. Legislation might have to follow up assertive executive actions in order to validate them.[39]
To improve the working relationship with Congress, presidents in recent years have set up anOffice of Legislative Affairs. Presidential aides have kept abreast of all important legislative activities.
After winning election to office, thepresident-elect and histransition team must begin the selection process for nominees to more than 6,000 federal positions, who will be appointed after inauguration.[40] The appointments range from top officials at U.S. government agencies, to the White House staff, and members of the United Statesdiplomatic corps. Many, but not all, of these positions at the highest levels are appointed by the president with theadvice and consent of theUnited States Senate.[41]
The president also nominates persons to fill federal judicial vacancies, includingfederal judges, such as members of theUnited States courts of appeals and theU.S. Supreme Court. These nominations require Senate confirmation, and this can provide a major stumbling block for presidents who wish to shape the federal judiciary in a particular ideological stance.
As head of theexecutive branch, the president appoints the top officials for nearly all federal agencies.[discuss] These positions are listed in thePlum Book which outlines more than 7,000 appointive positions in the government. Many of these appointments are made by the president. The president is also free to appoint a new agency head of ten agencies. For example, it is not unusual for theCIA'sdirector orNASA'sadministrator to be changed by the president. Other agencies that deal with federal regulation such as theFederal Reserve Board or theSecurities and Exchange Commission have set terms that will often outlast presidential terms. For example, governors of the Federal Reserve serve for fourteen years to ensure agency independence. The president also appoints members to the boards of directors forgovernment-owned corporations, such asAmtrak. The president can also make arecess appointment if a position needs to be filled while Congress is not in session.[1]
In the past, presidents could appoint members of theUnited States civil service. This use of thespoils system allowed presidents to reward political supporters with jobs. Following theassassination of President James Garfield byCharles J. Guiteau, a disgruntled office seeker, Congress instituted a merit-based civil service in which positions are filled on a nonpartisan basis.[42] TheOffice of Personnel Management now oversees the staffing of 2.8 million federal jobs in the federalbureaucracy. In 2020, theTrump administration attempted to partially override this change via Executive Order, creating the job classification ofSchedule F appointments.[43] TheBiden administration removed the classification prior to its full implementation.[citation needed]
The president must also appoint hisstaff of aides, advisers, and assistants. These individuals are political appointments and are not subject to review by the Senate. All members of the staff serve "at the pleasure of the President".[44][45] Since 1995, the president has been required to submit an annual report to Congress listing the name and salary of every employee of theWhite House Office. The 2011 report listed 454 employees.[46]
Article II of theUnited States Constitution gives the president the power ofclemency. The two most commonly used clemency powers are those ofpardon andcommutation. A pardon is an official forgiveness for an acknowledged crime. Once a pardon is issued, all punishment for the crime is waived. A person seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine shall execute a formal petition. The petition shall be addressed to the president of the United States and shall be submitted to the pardon attorney, Department of Justice, Washington, D.C. 20530, except for petitions relating to military offenses. A person accepting the pardon through execution of a formal petition must, however, acknowledge that the crime did take place.[47] The president can only grant pardons for federal offenses.[48] The president maintains theOffice of the Pardon Attorney in the U.S. Department of Justice to review all requests for pardons. The president can also commute a sentence which, in effect, changes the punishment to time served. While the guilty party may be released from custody or not have to serve out a prison term, all other punishments still apply.
Most pardons are issued as oversight of the judicial branch, especially in cases where theFederal Sentencing Guidelines are considered too severe. This power can check the legislative and judicial branches by altering punishment for crimes. Presidents can issue blanketamnesty to forgive entire groups of people. For example, President Jimmy Carter granted amnesty toVietnamdraft dodgers who hadfled to Canada. Presidents can also issue temporary suspensions of prosecution or punishment in the form ofrespites. This power is most commonly used to delay federal sentences of execution.
Pardons can be controversial when they appear to be politically motivated. PresidentGeorge W. Bush commuted the sentence of White House stafferLewis "Scooter" Libby and PresidentDonald Trump commuted the sentence of and later pardonedRoger Stone.[49]
Under the Constitution, the president is the federal official that is primarily responsible for the relations of the United States with foreign nations. The president appoints ambassadors, ministers, and consuls (subject to confirmation by the Senate) and receives foreign ambassadors and other public officials.[31] With thesecretary of state, the president manages all official contacts with foreign governments.
On occasion, the president may personally participate in summit conferences where heads of state meet for direct consultation.[50] For example, PresidentWilson led the American delegation to theParis Peace Conference in 1919 afterWorld War I; PresidentFranklin D. Roosevelt met withAllied leaders duringWorld War II; and every president sits down with world leaders to discuss economic and political issues and to reach agreements.
Through theDepartment of State and theDepartment of Defense, the president is responsible for the protection of Americans abroad and of foreign nationals in the United States. The president decides whether to recognize new nations and new governments,[51] and negotiate treaties with other nations, which become binding on the United States when approved by two-thirds of the Senate. The president may also negotiateexecutive agreements with foreign powers that are not subject to Senate confirmation.[52]
The Constitution does not expressly grant the president additional powers in times of national emergency. Some scholars think that the Framers implied these powers because the structural design of the Executive Branch enables it to act faster than the Legislative Branch. Because the Constitution remains silent on the issue, the courts cannot grant the Executive Branch these powers when it tries to wield them. The courts will only recognize a right of the Executive Branch to use emergency powers if Congress has granted such powers to the president.[53]
Emergency presidential power is not a new idea. However, the way in which it is used in the twenty-first century presents new challenges.[54]
A claim of emergency powers was at the center of President Abraham Lincoln's suspension ofhabeas corpus without Congressional approval in 1861. Lincoln claimed that the rebellion created an emergency that permitted him the extraordinary power of unilaterally suspending the writ. With Chief Justice Roger Taney sitting as judge, the Federal District Court of Maryland struck down the suspension inEx parte Merryman, although Lincoln ignored the order.[55]
President Franklin Delano Roosevelt similarly invoked emergency powers when he issued an order directing that all Japanese Americans residing on the West Coast be placed into internment camps during World War II. The U.S. Supreme Court upheld this order inKorematsu v. United States.[56]
Harry Truman declared the use of emergency powers when he nationalized private steel mills that failed to produce steel because of a labor strike in 1952.[57] With the Korean War ongoing, Truman asserted that he could not wage war successfully if the economy failed to provide him with the material resources necessary to keep the troops well-equipped.[58] The U.S. Supreme Court, however, refused to accept that argument inYoungstown Sheet & Tube Co. v. Sawyer, voting 6-3 that neither commander-in-chief powers nor any claimed emergency powers gave the president the authority to unilaterally seize private property without Congressional legislation.[59]
President Nixon claimed in 1976 that the powers of the president to decide the constitutionality of government actions concerning national security was absolute and exclusive: "if the President does it, that means it is not illegal".[60]
Congressional legislation gives the president powers to commandeer states and governors of states, if the president deems they are engaged in insurrection.[61][62][63]
According to research conducted by theBrennan Center atNew York University Law School, administrations since Eisenhower have drafted secretPresidential Emergency Action Documents (PEADs) that assert what one government document described as "extraordinary presidential authority in response to extraordinary situations." These secret powers appear to be exempt from congressional oversight. PEADs undergo periodic revision, and although their current contents were not known as of 2020, previous PEADs included emergency powers to detain "alien enemies" and other "dangerous persons"; invoke various forms of martial law; authorize a general warrant permitting search and seizure of persons and property; suspend production of theFederal Register; and censor news reports. The Brennan Center found that 56 PEADs were in effect as of 2018.[64]
Executive privilege gives the president the ability to withhold information from the public, Congress, and the courts in national security and diplomatic affairs.[65]George Washington first claimed privilege when Congress requested to seeChief JusticeJohn Jay's notes from an unpopulartreaty negotiation with Great Britain. While not enshrined in the Constitution, Washington's action created the precedent for privilege. When Richard Nixon tried to use executive privilege as a reason for not turning over subpoenaed audio tapes to a special prosecutor in theWatergate scandal, the Supreme Court ruled inUnited States v. Nixon that privilege was not absolute. The Court reasoned that the judiciary's interest in the "fair administration of criminal justice" outweighed President Nixon's interest in keeping the evidence secret.[66] Later President Bill Clinton lost in federal court when he tried to assert privilege in theClinton–Lewinsky scandal. The Supreme Court affirmed this inClinton v. Jones, which denied the use of privilege in cases of civil suits.[67]
Because of the vast array of presidential roles and responsibilities, coupled with a conspicuous presence on the national and international scene, political analysts have tended to place great emphasis on the president's powers. Some have even spoken of "the imperial presidency", referring to the expanded role of the office thatFranklin D. Roosevelt maintained during his term.[68]
PresidentTheodore Roosevelt famously called the presidency a "bully pulpit" from which to raise issues nationally, for when a president raises an issue, it inevitably becomes subject to public debate.[69] A president's power and influence may have limits, but politically the president is certainly the most important power in Washington and, furthermore, is one of the most famous and influential of all Americans.[32]
Though constrained by various other laws passed by Congress, the president's executive branch conducts most foreign policy, and their power to order and direct troops as commander-in-chief is quite significant (the exact limits of a president's military powers without Congressional authorization are open to debate).[3][70]
The Separation of Powers devised by the founding fathers was primarily designed to prevent the majority from ruling with an iron fist.[71] Based on their experience, the framers shied away from giving any branch of the new government too much power. Theseparation of powers provides a system of shared power known as "checks and balances". For example, the president appoints judges and departmental secretaries, but these appointments must be approved by the Senate. The president can approve bills or veto (deny) them. If he does that, the bill is sent back to Congress, which can override the veto.[32]
An essential factor, then, to counter the abuse of unilateral executive power, is presidential accountability:[32][72]
[T]he American Constitution...envisages a strong Presidency within an equally strong system of accountability. When the constitutional balance is upset in favor of Presidential power and at the expense of Presidential accountability, the office can be said to become imperial. –Arthur M. Schlesinger Jr.[72]
Political scientists have attempted to develop theoretical approaches to describe the use and control of unilateral power, but such theories have not been clearly substantiated by empirical evidence. Some theoretical perspectives emphasize the importance of institutional constraints and the separation of powers. Unilateral action can be seen as a strategic way of circumventing Congressional authority, or as a way to act complicitly with the tacit approval of the majority party. Other formal theories focus on agency and relationships between the president, other bureaucratic actors, and the public. Comparative perspectives suggest that factors such as partisan support, ideological polarization, and divided government, may be closely linked to unilateral policy making. No one theoretical approach addresses all important issues.[32]
Empirical research on executive power and its uses is limited, and results are not always consistent. Available results may not align with predictions from separation-of-powers theories: "presidents routinely change status quo policies that theories predict they should not."[32] Evidence suggests that presidents are more likely to exercise unilateral power with the tacit support of the majority party in Congress, rather than against a hostile Congress.[32][73]
With respect to judicial review it appears that presidents may be more likely to issue executive orders when they differ ideologically from the courts. However the courts overwhelmingly tend to support such directives, upholding 83% of the executive orders that were challenged in federal court between 1942 and 1998.[32][74][75]
Predictions about the relationship between presidential popularity and numbers of unilateral directives issued are inconclusive. It has been theorized that less popular presents will issue more presidential directives, but results on this question are mixed.[32]In terms of how the public responds to the president's actions, there is some evidence to suggest that "individuals are less likely to approve of the president following the use of unilateral power" possibly because it is used in place of legislation.[32][76]
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water
No clear mechanism or requirement exists today for the president and Congress to consult. The War Powers Resolution of 1973 contains only vague consultation requirements. Instead, it relies on reporting requirements that, if triggered, begin the clock running for Congress to approve the particular armed conflict. By the terms of the Resolution, however, Congress need not act to disapprove the conflict; the cessation of all hostilities is required in 60 to 90 days merely if Congress fails to act. Many have criticized this aspect of the Resolution as unwise and unconstitutional, and no president in the past 35 years has filed a report "pursuant" to these triggering provisions.
Presidents have sent forces abroad more than 100 times; Congress has declared war only five times: the War of 1812, the Mexican War, the Spanish–American War, World War I and World War II.
President Reagan told Congress of the invasion of Grenada two hours after he had ordered the landing. He told Congressional leaders of the bombing of Libya while the aircraft were on their way.
It was not clear whether the White House consulted with Congressional leaders about the military action, or notified them in advance. Thomas S. Foley, the Speaker of the House, said on Tuesday night that he had not been alerted by the Administration.
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