By Mark Strand and Timothy Lang
If the President of the United States of America, the most powerful politician on Earth, can’t pass legislation, what’s wrong with Washington?
Not much actually. The system works. Ok, this might be an overstatement, but not by much. Here’s why.
In certain countries, such as Great Britain, the head of the legislature’s majority party (or coalition) controls the power of practically the whole government. In the American presidential system, the President must share power with the legislature and the judiciary and work with them to lead the nation. This is the way it was supposed to work, and this is how is has generally worked for over 200 years.
The early patriots were suspicious of vesting power in a single, strong ruler or entity. Patrick Henry famously refused to participate in the Constitutional Convention because he feared that it would establish a monarchy. As we all know, the Framers did not enthrone a king. In fact, in the Federalist Papers, tracts written in favor of the ratification of the Constitution, Alexander Hamilton argues that the President was then weaker than the King of Great Britain and perhaps even less powerful than the Governor of New York–one wonders what he would say about today’s Chief Executive! On the other hand, in another paper, he did assume that “all men of sense will agree in the necessity of an energetic Executive”.
As Hamilton suggests, the Constitution does provide the President with significant powers, which are listed in Article II. Among them are the power to veto legislation, the ability to nominate people for certain government positions, the authority over the armed forces as the commander-in-chief, and the authority to negotiate treaties. These are not the only formal, explicit powers he has, but these days, exercising them can be the cause of major battles with Congress.
The Congress, on the other hand, has much authority over the President. It can pass a bill over a veto if two-thirds of both Chambers agree to it. The Senate has the power to ratify treaties and to approve nominations for appointed offices. The Congress–not the commander-in-chief–has the power to declare wars. The Congress, and the Congress alone, can disburse money from the Treasury, via legislation. As if to signify the supremacy of Congress, Article I, which establishes the legislative branch, is twice as long as Article II, which establishes the presidency. As suggested in Surviving Inside Congress, the Founding Fathers had in mind that “the legislative, executive and judicial branches would be equals–but the legislative would be more equal than the others”.
Although the Founders limited the Executive’s authority, over time, Presidents have developed a number of different tools to advance their policies. These are, in the description of Surviving Inside Congress, “pseudo-legislative powers”. The primary example of this is the executive order. Executive orders, to use the definition provided by the White House, “direct executive offices or clarify and further existing laws”. Presidential memoranda and proclamations are also ways for the President to work his will. Like executive orders, memoranda do have significant effects. For example, in the first week of his presidency, President Obama issued a controversial memorandum revoking the Mexico City Policy, which prohibited funds from going to non-governmental organizations that vigorously promote abortion as a method of birth control overseas. Presidential proclamations, on the other hand, are often less consequential. For example, he declared October 11 as “General Pulaski Memorial Day” and urged “all Americans to commemorate this occasion with appropriate programs and activities” to honor the Polish general who fought for American Independence. Many proclamations celebrate the accomplishments of great Americans or call to mind the dreadful effects certain diseases have on the population. Others, however, actually contain significant ideological and policy statements. President Obama, for instance, rehashed his implementation of pro-gay policies in his proclamation declaring June gay pride month. Another proclamation he has issued has restricted the entry into the United States of people who have committed certain human rights violations. The President has other powers not explicitly listed in the Constitution, but these are some of the President’s most useful tools to implement policy without explicit legislative sanction.
The various presidential actions described above are ways that the President can effect the policies he desires despite Congressional opposition. President Obama’s press secretary has indicated that he intends to employ such powers to pursue his economic policies. The Republican-controlled House could try to counteract this by passing legislation to the contrary effect. However, it would never pass the Senate, and if it did, we all know who would have to sign the law…the President whose policies Congress would like to reverse. So, this President should be fairly confident knowing that his policies will stand–at least for the time being, since what he gives, he can take away. The next President–or even Obama himself–could easily reverse these decisions. For instance, the first thing Ronald Reagan did after being sworn in was rescind 39 Executive orders issued by President Jimmy Carter. That just goes to show you that an Executive order is often only guaranteed for the time that the issuing President is in office. If President Obama desires for his policies to stand for years to come, he should simply produce a plan acceptable to Congress.
Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.