1. Unit 9 Executive Control

2. Unit 9 Any questions before we begin?

3. Unit 9 This is our last seminar together! Remember, all work is due by the end of Unit 10. NO EXCEPTIONS OR EXTENSIONS!

4. Unit 9 Executive Control The President’s Ability to Control Administrative Agendas

5. Executive Control Presidential administrations are all about setting an agenda or a course of action for the government, and by extension, the country. This agenda is reflected in the policies that presidents pursue. Sometimes those policies are a continuation of the previous administrations and sometimes those policies represent a clean break with the past. In this seminar, we will discuss the president’s ability to control administrative agendas by the policy preferences that he pursues.

6. Executive Control Some powers include: – power to appoint the heads of agencies – power over the budget – power to issue executive orders – power to set policy – power to veto legislative bills – power to direct litigation – power of reorganization – power to pardon

7. Executive Control As your reading notes, with respect to the president, there is no specific provision of the Constitution that can be cited for executive authority over administrative agencies. Over the years, presidents have cited the following provisions of Article II as their constitutional authority. – Article II, Section 1, invests the president with executive power. – Article II, Section 2, provides that the president is the commander-in-chief of the armed forces. – Article II Section 2, gives the president the appointment power. – Article II, Section 3, obligates the president to take care that the laws be faithfully executed. – Article II, Section 2, authorizes the president to require the opinions in writing of the heads of the executive departments.

8. Executive Control Appointment and Removal Power The president is given the power in Article II, Section 2, in what is known as the appointments clause, to appoint people to the federal government. The appointments clause states that the president shall “nominate and by and with the Advice and Consent of the Senate, shall appoint Ambassadors... Judges of the supreme Court, and all other Officers of the United States.” Further, Congress “may by Law vest Appointment of such inferiors Officers, as they may think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Distinction between principal officers and inferior officers

9. Executive Control Power over the Budget Although under Article I of the Constitution Congress has the power to spend, the president plays an important role in formulating the budgets of the agencies. The president, through the Office of Management and Budget (OMB), submits an annual budget to Congress. The OMB is an agency inside the Executive Office of the President. Most agencies must submit their budgets to the OMB for clearance before the overall budget is submitted to Congress. Budget requests will reflect the policy choices of the president and governors. Domestic concerns and even international issues can cause a president to ask for more money for an agency.

10. Executive Control Executive Orders An executive order is a directive issued by the president or a governor that implements a policy but need not be passed by a legislature. Presidents and governors use executive orders to gain influence over agencies and to assure that most agencies of the government are in compliance with administrative policy. Presidents issue hundreds of executive orders during the course of their administration. Many executive orders have significant effects on a broad range of policies affecting how agencies operate. – For example, President Johnson issued an executive order prohibiting discrimination in public employment. President Ford also issued an executive order prohibiting assassination of foreign leaders by any agencies of the United States. Executive orders are issued by number and are published in the Federal Register. Executive orders are a powerful tool of the president because they do not have to be approved by Congress. However, to be a valid exercise of power, the executive order must be based on the president’s constitutional powers stemming from Article II or be based on power delegated to the president by Congress. If a president were to issue an executive order without such authority, the president would be encroaching on the powers of Congress and violating principles of separation of powers because Article I of the Constitution vests legislative power only in Congress

11. Executive Control Executive Orders cont. Three-category framework to review validity of presidential actions (an enumerated by Justice Jackson: – 1. When the President acts pursuant to an express or implied authorization from Congress, his authority is at its maximum, for it includes all that he possesses in his own right, plus all that Congress can delegate.... – 2. When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.... – 3. When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can only rely upon his own constitutional powers minus any constitutional powers of Congress over the matter. – Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–637 (1952) (Jackson, J., concurring).

12. Executive Control Control by Policy Setting Every president comes into office with an agenda, priorities, and a set of policy goals and objectives. The policies are reflected to a great degree in the campaign promises articulated in the presidential campaign and are generally consistent with the platform of the political party of which he is a member. The programs and policies cover the whole range of government activities including international affairs, domestic policy, and the direction of the agencies. Presidents set administrative policy through the issuance of directives to various agencies of the government. Examples?

13. Executive Control Power to Veto The president and most governors have the power to veto bills passed by the legislature. If the president does not like a bill that creates an agency or one that modifies the powers of an agency, the president can stop it with a veto. If Congress passes a law that rescinds a regulation of an agency, the president can stop this law by the veto. However, Congress can override the veto with a two- thirds (2/3) vote of both Houses, but this is extremely difficult to do.

14. Executive Control Power Over Litigation The Department of Justice is headed by the Attorney General of the United States, who is appointed by the president with the approval of the Senate. The Attorney General is charged with enforcing federal law. Recall from Chapter 6 (of the text book) that a person or business can challenge the legality of a regulation in a court. Most agencies rely on the Department of Justice to represent them if the legality of a regulation is litigated. A presidential administration can exert influence over administrative agencies in the selection of the regulations it chooses to defend and the enthusiasm with which it defends them. Examples?

15. Executive Control Reorganization In an attempt to make the numerous and varied agencies of the government more efficient and to promote better management of the agencies, Congress has from time to time delegated to the president the power to reorganize the agencies of the executive branch. A good example of presidential reorganization was the creation of the Environmental Protection Agency or the creation of the Department of Homeland Security

16. Executive Control Power to Pardon The president, under Article II, Section 2 of the Constitution, can pardon people who have or may have committed federal crimes. The governor can pardon persons convicted of state crimes. One of the most famous pardons in history was the pardon by President Ford of ex–President Nixon in 1974, in the aftermath of the Watergate scandal. The pardon is the last word because a pardon is not reviewable by a court.

17. Executive Control Any questions?

18. Executive Control Can you think of any other examples of Executive Control of Administrative Agencies?

19. Unit 9 That’s all folks! Thanks for participating this quarter! I hope you all learned something. It has been my pleasure to be your professor. Please do email with any questions, etc., you may have. Please remember all assignments, etc., are due by the end of Unit 10, NO EXCEPTIONS!!!