The Imperial Presidency Arthur Schlesinger s s The Imperial Presidency (1973) suggested that presidential power had grown excessive ( imperial( imperial ) Theodore Lowi responded: economic growth necessitated strong executive; Congress itself delegated strong powers to executive branch, especially in areas of foreign policy Term Imperial Presidency widely used in reference to growth of strong executive with broad, sweeping powers A. War Powers 1. Constitutional conflict of Congress s s power to declare war with POTUS power as Commander in Chief 2. In 18 th century, Congress had more time to deliberate war issues; in modern era, POTUSes argue need more flexibility to respond to rapidly changing conditions 3. POTUS has sent troops without Congressional declaration of war >125 times, very frequently since 1945 A. War Powers (cont.) 4. Congress has generally gone along with troop deployments and funded them as well; however, when public opinion turns against operations, Congress has often responded 5. Congressional incentive to support deployment without declaration: declaring war carries with it transfer of great emergency powers to the President 1
B. Emergency Powers Examples: suspension of habeas corpus mail censorship Control of manufacturing Control of communication & transportation Declaration of martial law Patriot Act Analysis of citizens phone records by NSA C. Use of executive agreements EAs: : deals between POTUS and leader of another nation Treaties require Senate ratification (executive agreements do not) Since WWII, >4100 executive agreements and <200 treaties Treaties often relatively trivial (archaeological artifacts in Mexico) while EAs concern matters of great national importance (military commitments) D. Use of executive privilege EP: right of POTUS to not divulge conversations between himself and his advisers POTUSes complain that without privilege, aides would not give straightforward advice Critics claim that POTUS has abused privilege by claiming under guise of national security U.S. v. Nixon: : Supreme Court ruled that POTUS is entitled to exercise executive privilege, but not in criminal cases 2
E. Impoundment Impoundment: Refusal of POTUS to spend money appropriated by Congress (in past, done when obvious need existed i.e. reducing defense $$ when war ended) Without line item veto, POTUS must either sign or veto entire bill. Therefore, they may have to approve bills including programs they do not wish to fund Nixon famously impounded for political objectives; highly controversial F. Veto Mere threat of veto can create changes in legislation Difficulty of mustering 2/3 supermajority to override gives POTUS great advantage; more than 93% of vetoes sustained (not overridden) Vietnam War, Watergate, Nixon resignation led Congress to reassert authority in mid- 1970s A. War Powers Act of 1973 POTUS can send troops overseas to area where hostilities are imminent without congressional declaration of war only under these circumstances: 1. Must notify Congress within 48 hours 2. Must withdraw troops after 60 days (can be extended another 30 if troop safety requires) 3
War Powers Act (cont.) 3. Must consult with Congress if troops are to engage in combat 4. Congress can pass a resolution, not subject to Presidential veto, to withdraw troops Criticisms: 1. Unconstitutional usurping POTUS CIC role 2. Too inflexible ties hands of President 3. Makes it easy on enemy just wait 60-90 days for troops to withdraw * POTUSes have claimed unconstitutional, but no lawsuits have been filed to determine B. National Emergencies Act of 1976 Response to use of emergency powers POTUS must inform Congress in advance of powers to be used in emergencies State of emergency automatically ends after 6 months POTUS can declare another 6 months of emergency, subject to congressional review C. Congress & the CIA Past CIA abuses (coups in Guatemala and Iran in 1950s; operations in Chile in 1970s, domestic operations) Church Committee investigations of abuses in 1970s Hughes-Ryan Amendment (1974) established eight congressional oversight committees (later reduced to two) 4
C. Congress & the CIA (cont.) Foreign Intelligence Surveillance Act (1978): established FISA court to authorize electronic surveillance of telephone, etc. for foreign intelligence purposes. Requires federal government to go through FISA court if it wants to conduct such surveillance (Dubya( controversy) D. Foreign Affairs Use of appropriations power to influence foreign policy in 1970s and 1980s: cut off aid to South Vietnam, Angola, and Contras; funded 1999 action in Kosovo; tried to force W into troop withdrawal deadline from Iraq by using funding as a lever Iran-Contra hearings in 1980s Extensive debate over U.S. involvement in Gulf War Bush 41 did not use War Powers Act, but did seek Cong. approval for U.S. action D. Foreign Affairs (cont.) Strong Cong. support for war on terror Extensive debate over involvement in Iraq in 2003; Bush did not use War Powers Act, but went to Congress for approval for U.S. action Increasing criticism of war in Iraq Criticism of Patriot Act, domestic surveillance programs of NSA 5
E. Budget & Impoundment Control Act (1974) Response to impoundment If POTUS impounds funds temporarily (deferral), either house can override If POTUS impounds funds permanently (recission), act automatically voided unless both houses of Congress approve within 45 days Established Congressional Budget Office (CBO) as response to OMB E. Budget & Impoundment Control Act (cont.) Congress given three additional months to consider President s s proposed budget Establishment of Budget Committees in each house F. Legislative Veto After law passed by Congress, executive agency issued regulations to enforce; Congress had option to analyze regulations & veto if desired to force bureaucracy to conform to Congressional intent INS v. Chada (1983): Supreme Court declared legislative veto unconstitutional violation of separation of powers Congressional Review Act (1996): Congress can repeal regulations with POTUS approval 6
G. Confirmation of Presidential appointments Long-established practice of senatorial courtesy before POTUS makes an appointment within a state, will seek approval of two senators from that state Much closer scrutiny given by Senate to recent appointments Controversy over recess appointments Appointment Confirmations (cont.) Rule of fitness no longer sufficient; policy priorities fair game for much more senatorial scrutiny than before Long confirmation delays (through holds ) for years in Clinton era; Senate Dems in Bush years returned favor; 2005: SML Frist threatened nuclear option of lowering cloture margin to simple majority to stop filibusters November 2013: Senate passed a rule eliminating filibuster as an option for executive and judicial appointees (except for SCOTUS) The Imperial Congress Argument 1. Congress engages in extensive investigations (Watergate, Iran-Contra, Whitewater) 2. Excessive Senate scrutiny of appointments 3. Use of holds & filibusters to delay judicial appointments 4. Congress gutted CIA through oversight & restrictions, creating vulnerability to terrorism 7
The Imperial Congress Argument (cont.) 5. Excessive use of independent counsel to conduct witch hunts in executive branch (authorization expired in 2000 & Congress did not renew, but can still demand POTUS appointment of special prosecutor. However, unlike independent counsel, special prosecutor can be fired by POTUS) 6. Congress overuses oversight powers; excessive micromanagement of government 8