Informal Powers of the President
Executive Orders
An executive order is a specific power of the president and the executive branch as provided
by the US Constitution in Article II, Section 1. This power allows the president of the United
States (POTUS) the authority to create laws or determine how existing laws should be carried
out. It always has to do with domestic affairs; executive agreements govern foreign affairs.
Pretty much any issue in domestic affairs is fair game for such an order, except for those
things that would impinge upon congressional powers, like the regulation of interstate
commerce. Executive orders can be simple things like declaring a new National Holiday or a
day designated to a special event, like “Take your Child to Work Day.” Since Bill Clinton’s
presidency, these noncontroversial orders have been given a new name: Presidential
Decision Directives.
Not all executive orders are simple or ceremonial, and some put the president in direct
conflict with Congress. Some famous examples of the past include President Eisenhower’s
order to enforce the desegregation of schools. Sometimes, states are — or Congress is —
unwilling to enforce a law that is controversial, and under these circumstances, the president
moves by executive order to see the law enforced. John F. Kennedy used these orders in a
manner similar to Eisenhower, to attempt to abolish discrimination based on race for people
who sought jobs, housing, or equal pay.
While the power of such an order seems
broad, there are checks to it. One check is
Congress's ability to overturn them, much
in the same way that it can overturn a
presidential veto. A two-thirds vote of
both houses (the Senate and the House of
Representatives) is required to overturn
an executive order. This means that they
can be extremely hard to overturn, since
most members of Congress typically vote
along party lines.
Another check to the broad power of
the executive order is the Constitution.
Figure 1: Desegregation in Little Rock (taken from
That is, the Supreme Court may review the order
and weigh its constitutionality. Essentially,
http://iipdigital.usembassy.gov on 2/10/14)
both the legislative and judicial branches of the government have the potential power to
check or dismiss a directive, but their ability to do this may be based on the degree to which
party affiliation of Congress or the courts aligns with the president.
Though use of this power has existed since the first president of the US took office, it
remains a controversial one. It potentially gives the POTUS an opportunity to act in a very
autocratic fashion, and checks and balances to the power through the legislative and judicial
branches are only effective if these branches aren’t stacked with supporters of the president.
It also gives the people of the US little recourse if they are unhappy with an order, since they
have no vote or say on which orders the POTUS can pass. The only recourse given to the
people is to lobby their representatives in Congress to support defeating an order and to
make certain they vote for a different presidential candidate in the next election.
Executive Agreement
An executive agreement is an arrangement established by the President of the United States
between the US and another foreign nation or agency. It is one of the primary tools in the
arsenal of the executive branch when dealing with foreign affairs. Although it may be
considered a treaty by international standards, according to the US Constitution, the
President does not have treaty power, thus an executive agreement is more of a general
provision used by both sides to come to terms with an important issue.
Traditionally, all treaties established by the US relied on approval by the legislative branch.
According to the Treaty Clause in the Constitution, the President can work with other nations
and foreign representatives to establish the conditions of treaties, but it takes an act of
Congress to ratify the treaty. The provisions must be debated and then approved by the
Senate with a two-thirds vote.
Since the end of World War II, official treaties have become an exception to the rule rather
than standard operating procedure. This is partly due to the fact that executive agreements
are able to be instituted quickly and successfully, setting up deals with other countries with
limited interference from other politicians. Another reason for the prevalence of executive
agreements in modern times is the fact that it provides near complete control of foreign
relations to the President. This also allows the executive branch, particularly the Secretary of
State, the ability to secure internationally-recognized treaties that provide for national
security. Sometimes these are even conducted in secret without the knowledge of the public.
Another method of executive agreement can be undertaken in unison with Congress.
Although these legislative-executive agreements are not mentioned in the US Constitution,
they still act as treaties with other countries. Both houses of Congress still vote on the
measure, which is usually established through a presidential administration official. The US
Supreme Court has heard arguments contradicting the constitutionality of this form of
executive agreement and upheld them as legal.
There are numerous examples of executive agreements
established by the President. Famous historic examples include
the mutual protection deal struck with the United Kingdom at the
onset of World War II, the postwar agreements with the Soviet
Union at Yalta and Potsdam in 1945 and the peace treaty
established with Vietnam in the early 1970s. Modern examples
include the North American Free Trade Agreement from 1994 and
membership in the World Trade Organization. These were all
brokered by executive agreement with no oversight by the
Figure 2: NAFTA Symbol
legislative
branch.
Executive Privilege
Executive privilege is a concept invoked by the President of the United States to avoid
disclosing information which the President feels could compromise the workings of the
executive branch of government. In strict point of fact, there is no Constitutional basis for
this privilege, and some Presidents have lost their attempts to invoke it, including President
George Washington, the first to attempt to use this concept.
The justification for executive privilege is that it is guaranteed by the separation of powers
clause in the Constitution. According to this logic, if the President was compelled to reveal
certain sensitive information by the judicial or legislative branch, this would be a breach of
the separation of powers. Furthermore, executive privilege is also supposed to protect
national security and the Presidential administration itself by ensuring that executive officials
feel free to communicate with each other and the President about issues of importance.
The term “executive privilege” was coined by President Dwight Eisenhower, but he was far
from the first or last to invoke this concept to evade testimony. In addition to the President,
this privilege is also assumed to protect key members of the administration, including the
Vice-President and other executive officials. In cases where officials evade testimony,
executive privilege tends to be more widely accepted, under the blanket of executive
immunity. In instances where Presidents and their administrations invoke it to resist warrants
and avoid surrendering subpoenaed materials, they can face a battle.
In 1974, President Nixon attempted to invoke executive privilege and
he failed. In addition to failing, he also brought the issue to the
forefront of the American mind and to Congress, leading to the
passage of a law which was designed to more clearly define and
restrict this privilege. The concept continues to be invoked by
Presidential administrations of all stripes, and it continues to be
fought by the legislative and judicial branches of the American
government.
Figure 3: Watergate
Scandal (taken from
without
it, the executive
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om on 2/10/14)
Some people feel that executive privilege is appropriate, and that
branch could be too exposed. Others feel that it is sometimes evoked to avoid the exposure
of illegal activities in the White House, and that Presidents and other executive officials
should be compelled to testify, submit to warrants, and comply with subpoenas. Like many
contentious legal issues in the United States, the matter will probably never be satisfactorily
resolved, much to the delight of the lawyers and judges who are paid to wrangle about such
issues.
Taken from http://www.wisegeek.com on 2/10/14.