Are contemporary Presidents over-powerful?

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The presidency of Franklin Roosevelt was to mark the rise of presidential government in the United States of America. The powers that had been delegated to Congress under Article I of the American constitution began to shift to the executive office, thus the President was no longer inferior to Congressional government and reforming the founding fathers ideal that ‘in republican government, the legislative authority necessarily predominates’1. Since this transformation of power and throughout the post-war presidency, there had been an ongoing debate as to whether the commander in chief is becoming vastly over-powerful and contradicting the powers entrusted to him under Article II of the constitution. In order to understand this rise in modern presidential government and whether they have become over-powerful, it is important to analyse the powers that they hold and how this has been extended in the twentieth century, before drawing a conclusion as to the question in debate.

The first, arguably the most important power due to the nations world status, of the American president, assigned to his office under Article II Section Two of the constitution, is the role of commander in chief of the nations navy and army forces, a characteristic that, in particular since 9/11, has come under much scrutiny. Previous to the World Trade Centre attacks, this privilege was largely perceived as a symbolic power, similar to that of a monarchical state where the president was ‘ceremonially head of the armed forces…like the British monarchy’2. The deployment of American troops and navy was therefore controlled by Congress who had the power to prevent the president’s decision of sending troops into combat, although once this has been passed through the legislature, it is the president who ‘determines military strategy and tactics’3. This constitutional right of Congress has been transformed in the twenty first century through the Bush Doctrine, where power has shifted away from the house to the executive office, but firstly it is important to analyse the progression of this bypassing

of the legislature since 1930, leading to the rise in presidential government and the huge

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1 C. Rossiter, ed., The Federalist Papers (New American Library, New York, 1961) page 13

2 C.V. Crabb and P.M Holt, Invitation to Struggle: Congress, the President and Foreign Policy (Congressional Quarterly Press, Washington, 1992) page 12

3 ibid

power that George W Bush has brought to his administration.

The founding fathers of the constitution attempted to control the president through restraints, that that is aforementioned of declaring wars and also through control of the purse, this outlined in Article I, Sections Eight and Nine. Despite this limitation on the executives power, in the history of the American constitution there have been ‘125 undeclared wars’4, these being where, despite Congressional disapproval and prohibition, conflict has been authorised by the commander in chief. These were rare occurrences before the Franklin Roosevelt administration and are largely occurrences in the aftermath of World War Two and throughout the Cold War, examples being in 1945 when Harry Truman personally declared that two nuclear bombs be dropped on Japan to end hostilities, and the deployment of troops to Korea in 1950 during the hype and fear of communism. These instances are clear examples of how the power of the president was developing and becoming much more powerful as he was able to bypass Congress. In comparison to the executive office in the first 150 years, presidents were therefore transforming the laws laid down in the constitution.

Post 1945 politics, I would argue, has also become a period where public opinion has, to some degree, mattered less to a president. Although a controversial statement and can be argued against with much conviction, due to the growth of media scrutiny, the president has shifted away from a representative democracy, where he should be acting not only in the interest of the nations population but reflecting the majority view of them also. The most prolific example of where this has occurred is through the Bush Doctrine. After the 9/11 attacks, Bush passed two acts through Congress that were to consolidate his position of having total control over the legislature in American government, these being the Patriot Act and the Bush Doctrine. The latter, is the more important as Bush can order troops to be deployed whenever and wherever he likes in the War on Terrorism to prevent countries from becoming a threat to

democracy, without Congressional support. There is no doubt that this is a huge power and a major reform of the executive office and although is an action defending democracy in the

world, it has taken away the democratic diplomacy that was central to the American

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4 Crabb, page 12

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democracy, without Congressional support. There is no doubt that this is a huge power and a major reform of the executive office and although is an action defending democracy in the

world, it has taken away the democratic diplomacy that was central to the American

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4 Crabb, page 12

constitution, so therefore the president has become over powerful in the defence of global democracy. The most obvious example of Bush acting in such away against the wishes of the people is the invasion of Iraq, as he decided to leave the idea of drawing together of a Second Resolution in the United Nations and declaring war in the Middle East alone. Therefore the argument prevails that not only has the president, in particular Bush, become over-powerful in his own country, but in the world as a whole as he is able to bypass the United Nations that was established to ensure that involvement in conflicts abroad were agreed upon first. This gives light to the argument that has evolved in recent years that no longer is the United Nations the world’s policeman, but the United States of America.

The theme that has arisen and is a major cause for dispute between the White House and Congress is who has the supreme right of legislating. Under Article I of the constitution, two legislative institutions were created, the House of Representatives and the Senate, these creating the Congressional body. However there also exists two legislative powers assigned to the executive office and these were relatively unknown to American politics until the presidency of Franklin Roosevelt in the 1930’s. The first right of the president is the power to recommend legislation to Congress, this being determined through the State of Union address. On being sworn into office in 1933, FDR, immediately ‘called the seventy third Congress into special session to pass the Emergency Banking Act’5, this being in attempt to control the Great Depression that had taken hold of American society as a result of the Wall Street crash in 1929. This was a landmark for the executive office and for the first time a president controlled the legislative agenda with the following 100 days consisting of ‘a flurry of laws meant to deal with the economic crisis’6. There was nothing that could be done by Congress to oppose Roosevelt’s bills, so this can be seen as the foundations for the rise of presidential government. The most significant stage of Roosevelt’s implementations was the fact that the federal government was now taking responsibility for economic matters so therefore handing

new powers to the executive office in controlling the country. Pre 1930 presidents were

unable to implement major economic decisions in domestic or foreign policy without support

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5 J.P. Pfiffner, The Modern Presidency (Bedford/St. Martins, Boston, 2000) page 137

6 ibid

imperialistic. Through the following decades it has been seen that Congress has had little impact on president actions, especially if the party in the executive office is the controlling ideology of the houses. This understanding explains how Johnson was able, in 1964, to pass with ease his Great Society legislation, with only ‘three of the eighty three major bills’7 being opposed by Congress. Similarly in 1981, Reagan in his attempt to revive a country that had been neglected domestically by the administration of Jimmy Carter, achieved vast legislative victories by increasing defence spending whilst making the largest tax cut seen to date in American history. Clearly, despite the restraints imposed by the founding fathers on the executive office, the post war presidencies have been able to bypass Congress, thus consolidating a greater control on the legislative structure in government, consequently leading to the claim that they have become over powerful.

Personalities of contemporary presidents have differed somewhat in contrast to pre 1930 administrations, this mainly due to the growth of the media, thus the president himself being in the spotlight constantly. This growth of media interest has placed a huge emphasis upon presidential performance and in particular can focus upon Richard Neustadt's claim that central to presidential power is the ‘power to persuade’8, the underlying meaning to this being that the president cannot simply make orders, this leading to nothing being achievable. Neustadt’s theory can be applied to many contemporary presidents, two in particular being prominent. The first is that of Eisenhower in the 1950’s, and being a successful general of the Second World War is was widely speculated that he would be unable to govern efficiently due to the fact that he was used to giving orders, rather than negotiating or persuading. Truman himself was aware of this, claiming that Eisenhower would have to consider changing his style once in office if he was to be successful. Through his ability to do this, thus supporting Neustadt's theory, Eisenhower was able to take a grip of the legislature, the prime example being when he ordered state troops into Arkansas in order to maintain order and allow black

students to attend Little Rock High School. Secondly is the presidency of Lyndon Johnson

who, on the death of Kennedy, was adamant that the legacy of JFK should be continued in,

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7 Pfiffner, page 139

8 R.E. Neustadt, Presidential Power (John Wiley & Sons, New York, 1980) page 15

particular the Civil Rights movement. Johnson, helped with the powers aforementioned that allowed him to pass his Great Society legislation relatively unappeased, has also been noted as one of the most powerful presidents in terms of having the ability of power to persuade. It was said that he was in fact a bully and he managed to meet with senators alone, standing with them and talking straight. These factors gave him the ability to control the legislature, thus increasing his power as a president.

The second right of the president in legislation is assigned to him under Article I Section Seven of the constitution and is the power of the veto, the founding fathers stating ‘Every order, Resolution, or vote…shall be presented to the President…and shall be approved by him, or disapproved’9. It is therefore his final decision as to whether an item shall be made law. A law that is vetoed by the President is not necessarily thrown out as it is returned to the House of Representatives where there is required a majority of two thirds in favour to forward the bill to ‘the other house, where it will be reconsidered, and if approval by two thirds of that house, shall become law’10. Despite the fact that a presidential veto can therefore be overridden by the house this is ‘very difficult to muster’11. The ideals laid down here in the Constitution have given opportunities for post war presidents to furthermore consolidate their power and the prime example of such an occurrence was in the Clinton administration who used such a power as a bargaining tool. Clinton faced arguably the worst possible occurrence for a president, dominance of Congress by the opposing party. This was therefore assumed to hinder progress in his Education and Heath Care reforms. However Clinton managed to use the presidential power of the veto in his favour by threatening to use it and thus was able to ‘win funding for the programmes he favoured’12. Through this rise in modern presidential government, it is clear that the executive office has been capable of using the restraints that have been placed upon them by the constitution to their advantage, them not proving in this

new era to be much of an obstacle. In relation with taking advantage of the powers that have been delegated to them, it has become a much more powerful office and to some extent taking

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9 C. Rossiter, ed., The Federalist Papers (New American Library, New York, 1961) page 16

10 N. Bowles, Government and Politics of the United States (Macmillan, Basingstoke, 1998) page 128

11 ibid

12 Pfiffner, page 136

democracy away from American government and transforming it, but not to a major extent, into a mild dictatorship.

It would appear from the aforementioned, that the past fifty years has only been a period where power has been taking away from the legislature, shifting to the executive. However it is important to understand that there have been various key acts passed that do decrease the power of president to a certain degree, thus allowing some scope to the question in debate, arguing against the idea that contemporary presidents have become over powerful. These restraints on the president to control his power derive from Arthur Schlesinger’s claim that we live in an era of ‘imperial presidency’13, due to the actions of the commander in chief where he was able to bypass Congress, deploying troops at his own discretion and be capable of passing acts unopposed. The first of such actions to prevent an all-powerful president occurred in 1973 with the introduction of the War Powers Act. During the struggle in Vietnam and fight against communism, President Nixon ordered a secret bombing campaign of Cambodia, which Congress subsequently ‘denied appropriations’14 to, deeming that Nixon’s command was not within his rights as a president. Therefore the Bill was passed that ensured the president was kept in check and unable to repeat such actions, Congress demanding and stating in law that they were to be consulted before American troops were deployed in the future. The resolution also deemed that if felt appropriate, the Houses’ had the power to vote and thus withdraw troops within sixty days if deemed necessarily, this hindering and demoting the idea that this was an age of imperial presidency. Despite the implication of such an important act to control presidential power, predecessors of Nixon ignored its existence shown by the rescuing of US citizens from Saigon in 1973, Ford ordering military force to achieve this aim and similarly Carter made the same decision in 1980 when Americans were held hostage in Tehran. On both occasions Congress claimed that the president had acted without the right to do so, but the Supreme Court refused to

intervene and denounce the executive office as there was a doubt of the constitutionality of the War Powers Act. Although this bill therefore had little impact on presidential power, if

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13 A. Schlesinger, The Imperial Presidency (Mariner Books, 2004) page 10

14 Pfiffner, page 101

anything intensifying it as the executive was able to bypass Congress without hindrance, events at Watergate did lead to the implementation of the 1974 Budget and Impoundment Act whereby the president was prevented from ‘impounding funds that had been allocated for a particular purpose by Congress’15. Seeing the failure of the War Powers act to control and check the Executive office, the resolution was followed by the establishment of Budget committees, their role being to influence policy making. In order to control the claim made by Schlesinger of presidential power in the post 1945 environment, it is evident that Congress attempted to redefine constitutional rights that had created a separation of powers, this being undermined by the strength of the executive office. However this has to some degree failed with the 1974 act being the only real example of power for the president being restrained. The Bush Doctrine is an example of how Congress in the twenty first century differs to that of the 1970s as it has allowed Bush the constitutional right to deploy troops, thus being a contradiction of the 1973 War Powers Act.

Despite the evident rise in presidential power over the legislature through the past six decades, it has never been an issue in relation to the Supreme Court, this keeping its own individual and defining role in the Separation of Powers. In fact in contrast to Congress, the Judiciary has maintained its powers set out in the constitution, capable of declaring presidential actions unconstitutional and having the right to sue a sitting president, this almost occurring in the Clinton administration with the Paula Jones issue. The only power that the president has of the Supreme Court is the ability to appoint its judges but only if there is a death or retirement during that administrations term of office. This to a certain degree is not a significantly strong power as the Court has the right to block any requests that they see as unsuitable, this almost occurring under the current administration where is was obviously apparent that Bush’s nomination of Harriet Miers was likely to be rejected, thus she withdrew her bid to succeed Justice Sandra Day O'Connor. The powers of the Supreme Court are established under

Judicial Review by the Supremacy clause and Article III of the Constitution, ‘the judicial power shall extend to all cases, in law and equity, arising under the constitution’16. It is clear

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15 A. Grant and E. Ashbee, The Politics Today companion to American government (Manchester University Press, Manchester, 2002) page 108

16 T.J. Lowi and B. Ginsberg, American Government (W.W. Norton & Company, New York, 2002) page 212

therefore that the Court significantly keeps the presidents power in check in its constitutional rights, thus depriving any such claim that contemporary presidents are over powerful in the judiciary.

I have analysed the question of Are contemporary presidents over-powerful by understanding the Separation of Powers in United States governments and the constitutional checks and balances that exist between them. It has been established that the Executive office does hold considerable power over Congress that was written down by the Alexander Hamilton and the co-authors. The late twentieth century saw presidents such as Roosevelt and Johnson being able to legislate, with ease, domestic issues, Nixon and Carter achieving similar actions through foreign policy. It appears that this has been able to occur in the wake of major events where implementation is necessarily such as Roosevelt’s Great Depression crisis in 1933. The wake of the Cold War gave rise to nuclear diplomacy and allowing the American President the psychological advantage of knowing that they are one of the worlds greatest powers, acting as a mild dictator, the rise of the media influence intensifying this. Clever diplomacy from Presidents such as Clinton has also allowed for the power to legislate being strengthened in the executive office. However I would argue that contemporary Presidents have not become over powerful as little has changed between the White House and Supreme Court, thus the rise of modern Presidential government has become powerful but not to the extent that the question suggests due to the restraints that are still in place constitutionally between these two bodies.

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