Executive Power

 

Executive Power: An Overview

In its first three articles, the U.S. Constitution outlines the branches of the U.S. Government, the powers that they contain and the limitations to which they must adhere. Article II outlines the duties of the Executive Branch.

The President of the United States is elected to a four-year term by electors from every state and the District of Columbia. The electors make up the Electoral College, which is comprised of 538 electors, equal to the number of Representatives and Senators that currently make up Congress. The citizens of each state vote for slates of electors who then vote for the President on the prescribed day, selected by Congress.

To become President, a person must be a natural born citizen of the United States. Naturalized citizens are ineligible, as are persons under the age of 35. In the case that the President should be unable to perform his duties, the Vice-President becomes the President. Amendment XXII placed a two-term limit on the presidential office.

The President:

War Powers

Congress holds the power to declare war. As a result, the President cannot declare war without their approval. However, as the Commander in Chief of the armed forces, Presidents have sent troops to battle without an official war declaration (which happened in Vietnam and Korea). The 1973 War Powers Act attempted to define when and how the President could send troops to battle by adding strict time frames for reporting to Congress after sending troops to war, in addition to other measures, however it has not had much effect (see "War Powers Resolution" section in the Commander in Chief Powers  article).

Nominations

The President is responsible for nominating candidates for the head positions of government offices. The President will typically nominate cabinet officials and secretaries at the beginning of his or her presidency and will fill vacancies as necessary. In addition, the President is responsible for nominating Federal Circuit Court judges and Supreme Court justices and choosing the chief justice. These nominations must be confirmed by the Senate. While the President usually has broad appointment powers, subject to Senate approval, there are some limitations. In National Labor Relations Board v. SW General Inc. (2017), the Supreme Court found that the "Federal Vacancies Reform Act of 1998[FVRA], which prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity, applies to anyone performing acting service under the FVRA."

Further, the President is constitutionally allowed to make recess appointments when Senate is not in session (which means that such appointments are not subject to Senate approval until the end of the session). However, In National Labor Relations Board v. Noel Canning, the Supreme Court found that "for purposes of the clause, the Senate is in session whenever it indicates that it is, as long as – under its own rules – it retains the capacity to transact Senate business." As such, the Senate can claim to always be in session, therefore preventing the President from making any recess appointments. 

Executive Orders

In times of emergency, the President can override Congress and issue executive orders with almost limitless power. Abraham Lincoln used an executive order in order to fight the Civil War, Woodrow Wilson issued numerous ones related to US involvement in World War I, and Franklin Roosevelt approved Japanese internment camps during World War II with an executive order

Pardons

The U.S. Constitution gives the President almost limitless power to grant pardons to those convicted of federal crimes. While the President cannot pardon someone impeached by Congress, he or she can pardon anyone else without any Congressional involvement.

The Extent of the President's Powers 

Article II of the Constitution contains the vesting clause, which states: "The executive Power shall be vested in a President of the United States of America." This has historically been interpreted to mean that the President is the head of the Executive Branch, but that he is still subject to limits within that Branch (i.e. if the President fires members of the Executive Branch, Congress would have oversight and would be able to investigate the firings.) Some scholars, however, have interpreted the Vesting Clause under a much stronger lens, finding that the President has full power over the entire Executive Branch. Under this theory, commonly referred to as the Unitary Executive Theory, any decision that the President makes regarding the Executive Branch would not be subject to any sort of review or oversight (i.e. Congress would not be able to investigate the President's firings of any members of the Executive Branch). While the Supreme Court has not directly embraced or rejected this theory, Justice Alito has made comments which have caused some to think that he endorses the theory: "The president has not just some executive powers, but the executive power — the whole thing."