Presidents have a wide range of powers, but they must always exercise these carefully. They also have to follow the Constitution, as well as statutory laws and court decisions.
A president’s power can be enhanced or constrained by history and the circumstances of the time. Presidents often expand their authority during periods of war or economic crises.
Power to Appoint
The Appointments Clause gives the President the power to appoint ambassadors, federal judges and other “principal officers” of the United States, subject to Senate confirmation. However, Article II, section 2, clause 2 also provides that Congress may by law vest the appointment of “inferior officers” in the President alone, in the courts of law or in the heads of departments.
In a majority of cases, the Supreme Court has held that the President has the power to remove any of his appointees, without requiring Senate approval. This is despite the fact that many federal offices are covered by the Civil Service. For instance, members of the Cabinet cannot be removed without a showing of good cause.
Historically, the issue of presidential removal was one of the most controversial issues in congressional debates. Senators argued that Presidents should have to obtain the Senate’s concurrence before removing federal officers, especially those who had required Senate confirmation. Others argued that the Constitution required removals to follow the appointing power, which would mean that an executive officer could remove any person, regardless of their appointment status or judicial or legislative qualifications.
This theory of presidential power of removal became popular in the early 19th century, largely due to the controversy over President Andrew Johnson’s decision to remove his Secretary of War. But the Supreme Court soon limited this power, holding that presidential removals must be confined to officers performing purely executive functions, such as appointing or firing members of the cabinet.
This interpretation of the Appointments Clause is a critical part of the constitutional separation of powers framework. It is important because it protects the President’s independence and ensures that all executive branch officials are appointed and fired in a fair, impartial manner. It also limits the President’s ability to retaliate against an appointee when that office is performing duties that are primarily legislative or judicial in nature. The Supreme Court has explained that this requirement of a clear distinction between the legislative and judicial branches prevents the President from abusing his removal power by retaliating against an appointee who is not performing a task that is directly connected with governing the country.
Power to Remove
In the United States, Congress and the courts have had to define the president’s power to remove officials. The Constitution, Article II, says the President “shall nominate, and by and with the Advice and Consent of the Senate, appoint officers…”
But the Constitution does not say whether a president may fire these appointees. The question has been a topic of constitutional controversies throughout American political development.
One of the most controversial issues was the Tenure of Office Act, which required the Senate to approve a replacement before a president could remove an executive officer. This act was enacted in the wake of Reconstruction, when President Andrew Johnson and Congress disagreed over the extent to which the president could control the execution of Reconstruction policy.
The Supreme Court’s first major decision on the issue was Myers v. United States, 295 U.S. 602 (1935). The majority ruled that the president may fire any officer, including those appointed by Congress or department heads. Chief Justice John Roberts termed the ruling the “landmark decision” and argued that it established a general rule of unencumbered presidential removal authority for all executive officers.
However, a major problem with the majority’s opinion was its vague standard for determining whether statutory provisions limiting the president’s removal authority are constitutional. While the opinion does not cite any cases, its standard was based on the idea that any restrictions that are imposed on the president’s Constitutional powers “unduly trammels” those powers, thus interfering with the president’s performance of his constitutional duties.
A dissent by Justice Antonin Scalia, in particular, accused the majority of treating a restriction, such as the for-cause provision at issue in Bowsher v. Synar, as an empowerment that interferes with the President’s Constitutional responsibilities.
The dissent’s critique, however, was a little hyperbolic. The dissenters argued that the president has some say over when executive officials are removed, but only in situations where the president would have preferred to keep the officials.
The dissenters criticized the majority for ignoring the fact that the Take Care Clause of the Constitution gives the President certain powers to oversee the performance of federal agencies. This Clause requires the President to take care that federal laws are faithfully executed.
Power to Make Treaties
The President has the power to make treaties, which are legally binding agreements between the United States and another country. These agreements are either submitted to the Senate for advice and consent to ratification or adopted by congressional action using existing legislation as a basis.
The treaty power is usually exercised through a process known as “treaty negotiation.” This procedure is an exclusive prerogative of the President and may be influenced by the President’s own personal negotiating expertise and by the advice of senators.
Once a treaty has been negotiated, the President can sign it into law or veto it. A veto may be overridden by a two-thirds vote in both houses of Congress.
In addition to creating treaties, the President also has the power to create executive agreements. These are akin to contract negotiations and can include agreements on matters of national security or other significant foreign policy matters. The President can negotiate an agreement to impose or remove sanctions on other countries, settle claims between U.S. citizens and foreign nationals, and extend pardons and clemencies for federal crimes.
Nevertheless, even though the President has the authority to enter into these agreements, constitutionally speaking, he is unable to change the meaning of fundamental treaty provisions without Senate or congressional approval. This has prompted a number of debates over the constitutional limits on presidential interpretation power.
One common argument, based on the Necessary and Proper Clause of Article I, SS 8, is that Congress has the power to pass legislation that implements duly made treaties. This theory has been supported by the Supreme Court in several cases, including Medellin v. Texas (1998).
Although the Necessary and Proper Clause is often construed to authorize Congress to pass any laws necessary to implement treaties, a more narrow view suggests that only those provisions of a treaty which are self-executing will be enforceable by Congress through enacting legislation. The President may, however, reinterpret or alter the terms of a treaty under certain circumstances, with or without Congress’s consent.
The question of reinterpretation power is not a simple one and may involve a complex analysis of the Constitution’s Treaty Clause and other executive powers. Professors Gary Lawson and Guy Seidman have argued that the President’s treaty power should be limited by other executive powers, not by his Treaty Clause power alone. This may track similar structural concerns as a Tenth Amendment limit on the President’s reserved state sovereignty power, but it does not answer the central questions of whether or not a Treaty Clause-granted President can unilaterally change the interpretation of fundamental treaty provisions.
Power to Veto Bills
The President of the United States has the power to veto bills that pass through Congress. This power is part of the separation of powers, or “checks and balances” in American government.
The veto is a power that has been used by presidents since 1792. The president has the authority to veto a bill when he feels that the legislation is not in the best interests of the United States. However, a veto can be overridden by Congress if two-thirds of the members of the chamber vote in favor.
Vetoes are usually accompanied by a message from the President, which explains his reasons for vetoing the bill. A veto may be “regular” (where the president sends the bill back to Congress), or it can be a “pocket veto” (where the president does not return the bill before the end of a session in which Congress passes it).
Pocket vetoes are very rare. If the president vetoes a bill and it is not returned to Congress by ten days after the end of the legislative session, then that bill is considered a pocket veto and does not become law. This means that the legislature must reintroduce the bill and enact it again.
In addition to regular vetoes, some presidents have the authority to veto items contained in appropriations bills. This power is often referred to as the amendatory veto, because it gives the executive branch a stronger role in the legislative process.
These vetoes are a form of presidential disapproval, and have been used as a policy tactic by some presidents. Other presidents have vetoed a bill because they felt that it was ineffective or did not meet their standards for legislation.
A veto can be overridden by the Congress when it approves the same bill again in the House and Senate with at least two-thirds of both chambers voting in favor of it. A successful override is very rare. Historically, only about one-third of all presidential vetoes have been overridden by Congress.