The Imperial Presidency
Arthur
Schlesinger’
Schlesinger’s The Imperial Presidency
(1973) suggested that presidential power had
grown excessive (“
(“imperial”
imperial”)
Theodore Lowi responded: economic growth
necessitated strong executive; Congress itself
delegated strong powers to executive branch,
especially in areas of foreign policy
Term “Imperial Presidency”
Presidency” widely used in
reference to growth of strong executive with
broad, sweeping powers
Imperial Presidency – Areas of Abuse
A. War Powers
1. Constitutional conflict of Congress’
Congress’s power
to declare war with POTUS power as
Commander in Chief
2. In 18th century, Congress had more time to
deliberate war issues; in modern era,
POTUSes argue need more flexibility to
respond to rapidly changing conditions
3. POTUS has sent troops without
Congressional declaration of war >125
times, very frequently since 1945
Imperial Presidency – Areas of Abuse
A. War Powers (cont.)
4. Congress has generally gone along with
troop deployments and funded them as
well; however, when public opinion
turns against operations, Congress has
often responded
5. Congressional incentive to support
deployment without declaration:
declaring war carries with it transfer of
great emergency powers to the President
1
Imperial Presidency – Areas of Abuse
B. Emergency Powers
Examples:
suspension of habeas corpus
mail censorship
Control of manufacturing
Control of communication & transportation
Declaration of martial law
Patriot Act
Analysis of citizens’
citizens’ phone records by NSA
Imperial Presidency – Areas of Abuse
C. Use of executive agreements
EAs:
EAs: deals between POTUS and leader of
another nation
Treaties require Senate ratification
(executive agreements do not)
Since WWII, >4100 executive agreements
and <200 treaties
Treaties often relatively trivial
(archaeological artifacts in Mexico) while
EAs concern matters of great national
importance (military commitments)
Imperial Presidency – Areas of Abuse
D. Use of executive privilege
EP: right of POTUS to not divulge
conversations between himself and his advisers
POTUSes complain that without privilege,
aides would not give straightforward advice
Critics claim that POTUS has abused privilege
by claiming under guise of “national security”
security”
U.S. v. Nixon: Supreme Court ruled that
POTUS is entitled to exercise executive
privilege, but not in criminal cases
2
Imperial Presidency – Areas of Abuse
E. Impoundment
Impoundment: Refusal of POTUS to spend
money appropriated by Congress (in past,
done when obvious need existed i.e.
reducing defense $$ when war ended)
Without line item veto, POTUS must either
sign or veto entire bill. Therefore, they may
have to approve bills including programs
they do not wish to fund
Nixon famously impounded for political
objectives; highly controversial
Imperial Presidency – Areas of Abuse
F. Veto
Mere threat of veto can create changes in
legislation
Difficulty of mustering 2/3 supermajority to
override gives POTUS great advantage; more
than 93% of vetoes sustained (not
overridden)
Imperial Presidency – Congressional Response
A.
1.
2.
Vietnam War, Watergate, Nixon resignation
led Congress to reassert authority in midmid1970s
War Powers Act of 1973
POTUS can send troops overseas to area
where hostilities are imminent without
congressional declaration of war only under
these circumstances:
Must notify Congress within 48 hours
Must withdraw troops after 60 days (can be
extended another 30 if troop safety requires)
3
War Powers Act (cont.)
3. Must consult with Congress if troops are to
engage in combat
4. Congress can pass a resolution, not subject to
Presidential veto, to withdraw troops
Criticisms:
1. Unconstitutional – usurping POTUS CIC role
2. Too inflexible – ties hands of President
3. Makes it easy on enemy – just wait 6060-90
days for troops to withdraw
* POTUSes have claimed unconstitutional, but no
lawsuits have been filed to determine
Imperial Presidency – Congressional Response
B. National Emergencies Act of 1976
Response to use of emergency powers
POTUS must inform Congress in advance
of powers to be used in emergencies
State of emergency automatically ends
after 6 months
POTUS can declare another 6 months of
emergency, subject to congressional
review
Imperial Presidency – Congressional Response
C. Congress & the CIA
Past CIA abuses (coups in Guatemala
and Iran in 1950s; operations in Chile
in 1970s, domestic operations)
Church Committee investigations of
abuses in 1970s
HughesHughes-Ryan Amendment (1974)
established eight congressional
oversight committees (later reduced to
two)
4
Imperial Presidency – Congressional Response
C. Congress & the CIA (cont.)
Foreign Intelligence Surveillance Act
(1978): established FISA court to
authorize electronic surveillance of
telephone, etc. for foreign intelligence
purposes. Requires federal government
to go through FISA court if it wants to
conduct such surveillance (Dubya
(Dubya
controversy)
Imperial Presidency – Congressional Response
D. Foreign Affairs
Use of appropriations power to influence
foreign policy in 1970s and 1980s: cut off aid
to South Vietnam, Angola, and Contras; funded
1999 action in Kosovo; tried to force W into
troop withdrawal deadline from Iraq by using
funding as a lever
IranIran-Contra hearings in 1980s
Extensive debate over U.S. involvement in Gulf
War – Bush 41 did not use War Powers Act,
but did seek Cong. approval for U.S. action
Imperial Presidency – Congressional Response
D. Foreign Affairs (cont.)
Strong Cong. support for war on terror
Extensive debate over involvement in
Iraq in 2003; Bush did not use War
Powers Act, but went to Congress for
approval for U.S. action
Increasing criticism of war in Iraq
Criticism of Patriot Act, domestic
surveillance programs of NSA
5
Imperial Presidency – Congressional Response
E. Budget & Impoundment Control Act (1974)
Response to impoundment
If POTUS impounds funds temporarily
(deferral), either house can override
If POTUS impounds funds permanently
(recission),
recission), act automatically voided unless
both houses of Congress approve within 45
days
Established Congressional Budget Office
(CBO) as response to OMB
Imperial Presidency – Congressional Response
E. Budget & Impoundment Control Act (cont.)
Congress given three additional months to
consider President’
President’s proposed budget
Establishment of Budget Committees in each
house
Imperial Presidency – Congressional Response
F. Legislative Veto
After law passed by Congress, executive
agency issued regulations to enforce; Congress
had option to analyze regulations & veto if
desired to force bureaucracy to conform to
Congressional intent
INS v. Chada (1983): Supreme Court declared
legislative veto unconstitutional violation of
separation of powers
Congressional Review Act (1996): Congress
can repeal regulations with POTUS approval
6
Imperial Presidency – Congressional Response
G. Confirmation of Presidential appointments
LongLong-established practice of senatorial
courtesy – before POTUS makes an
appointment within a state, will seek
approval of two senators from that state
Much
closer scrutiny given by Senate to recent
appointments
Controversy over recess appointments
Appointment Confirmations (cont.)
“Rule of fitness”
fitness” no longer sufficient; policy
priorities fair game for much more senatorial
scrutiny than before
Long confirmation delays (through “holds”
holds”)
for years in Clinton era; Senate Dems in Bush
years returned favor; 2005: SML Frist
threatened nuclear option of lowering cloture
margin to simple majority to stop filibusters
November 2013: Senate passed a rule
eliminating filibuster as an option for
executive and judicial appointees (except for
SCOTUS)
The Imperial Congress Argument
1.
2.
3.
4.
Congress engages in extensive
investigations (Watergate, IranIran-Contra,
Whitewater)
Excessive Senate scrutiny of
appointments
Use of holds & filibusters to delay
judicial appointments
Congress “gutted”
gutted” CIA through
oversight & restrictions, creating
vulnerability to terrorism
7
The Imperial Congress Argument (cont.)
5. Excessive use of independent counsel to
conduct “witch hunts”
hunts” in executive branch
(authorization expired in 2000 & Congress did
not renew, but can still demand POTUS
appointment of special prosecutor. However,
unlike independent counsel, special prosecutor
can be fired by POTUS)
6. Congress overuses oversight powers; excessive
“micromanagement”
micromanagement” of government
8