Presidential Power 1.Domestic 2.War Powers

What does the president do?

Work with Congress Suggest bills Suggest a budget

What affects Congress’ willingness to work with the president? Party! Unified government: The presidency and Congress are controlled by the same party Divided government: The presidency and Congress are controlled by different parties

What affects Congress’ willingness to work with the president? Party Public opinion Personal and strategic skill

Lead the executive branch Appoint department heads Make political appointments Control content of regulations Executive Orders Direct the conduct of a war

Presidential War Power

Free-write Is the Constitution self-enforcing? Who ultimately decides how war power authority is allocated?

Commander in Chief

“The President shall be 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” ---Article I Section 2

The Congress shall have Power: “ To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia…”—Article I Section 8

Why put the war power in Congress’ hands?

Why? “The power of declaring war…is in its nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all of the councils of the nations. War, in its best estate, never fails to impose upon the people the most burthensome taxes and personal sufferings. It is always injurious, and sometimes subversive of the great commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. It is sometimes fatal to public liberty itself…” --Supreme Court Justice Joseph Story (Fisher p. 4)

Why put the power in the president’s hands?

What changed? General growth of Presidential prominence Precedents Military technology and the Cold War Secret agencies Alternative sources of legitimacy (UN, NATO) Congressional abdication of responsibility

In what ways can Congress fight back?

War Powers Resolution Consulting requirement: –“The President in every possible instance shall consult with Congress before introducing US Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress…”

War Powers Resolution Reporting requirement –In the absence of a declaration of war, when troops are introduced 1) into hostilities or imminent hostilities 2) into the territory of a foreign nation armed for combat 3) In numbers which substantially enlarge the forces in a nation or region…

War Powers Resolution Reporting –The President shall submit within 48 hours to the Speaker of the House and President of the Senate a report, in writing including The circumstances requiring forces The constitutional and legislative authority under which troops were introduced The estimated duration of the hostilities

War Powers Resolution Automatic removal –Within 60 days after the report is submitted or required to be submitted, the President shall terminate any use of United States armed forces unless the Congress Declares war Has extended by law the 60 day period Is physically unable to meet

Can the courts affect this balance of power?

Jackson on Presidential Power “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate… --Justice Jackson, Concurrence, Youngstown Sheet and Tube Co. v. Sawyer

Jackson on Presidential Power “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” --Justice Jackson, Concurrence, Youngstown Sheet and Tube Co. v. Sawyer

Jackson on Presidential Power “When the President acts in 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… --Justice Jackson, Concurrence, Youngstown Sheet and Tube Co. v. Sawyer

Small group discussion How should we proceed in the War in Iraq? Who should decide?