US Executive - Direct Authority & Foreign Policy with the President

What Are Executive Orders:
  • An official document issued by the executive branch with the effect of law, through which the POTUS directs federal officials to take action
  • Known as an ‘extra-constitution power’ - a power outside the Constitution. They do not require Congress’s approval
  • Often drafted in the departments and agencies of the federal government and in OMB.
    • OMB ensure that they fit with the POTUS’s policy interests and existing law.
  • Not a new function, Roosevelt issued over 3000 of them.
    • Whilst easy to put through, it’s just as easier for the successor to remove them. Clinton removed one of Regan’s orders just days into his presidency.
Executive Orders Under Obama:
  • When running for the presidency he stated that he was not a fan of executive orders, but when Congress was delaying things for him, he developed a liking for them.
  • One of the first policy areas he used them in was for gay rights: People with HIV were no longer barred from entering the country and federal housing rules were changed so any discrimination towards homosexual people was stopped and married same-sex couples could take time off upon the birth of a child.
  • In 2011, a partial government shutdown happened when Obama claimed that Congress was “dysfunctional” whilst saying “where they won’t act, I will”. Soon after he took steps to ensure that this never happened again. After the SOTU address in 2011, he signed a few more orders to ensure that the federal minimum wage was increased and to restrict greenhouse gas emissions.
  • Whilst orders aren’t checked by Congress, they can be deemed unconstitutional by the SC. Obama gave an order that illegal immigrants can be deterred from the country for a short while – meaning they would not be full residents of the USA. The SC deemed it unconstitutional and a vote in the SC happened and ended 4-4.
Executive Orders Under Trump:
  • In his first week, he seemed to be signing lots. He signed one that took the States out of the Trans-Pacific Partnership and a freeze on federal government hiring.
  • At the end of his first week in office, he decided to place a 4-month ban on predominantly Muslim countries and this was deemed unconstitutional by the SC. Trump fired some staff after they did not agree with it and has since been quiet about it.
What Is Signing Statements:
  • A statement issued by the POTUS on signing a bill which may challenge specific provisions of the bill on constitutional or other grounds.
  • Clinton and Carter used them the most whilst W Bush and Obama did not use them often as they were deemed controversial.
  • The main question with them is: Is it proper for a POTUS to sign a bill into law but at the same time to state that they will not enforce part of it because they believe it violates the Constitution or other federal laws.
    • Critics will argue that this is an overuse of the POTUS’s power, and the POTUS should either wait to see if the SC agree or veto it altogether.
  • Signing statements allow for the POTUS to do 3 things with a bill once Congress has agreed to it: Veto, pocket veto or sign. The signing would mean that the POTUS would only sign certain parts of the bill – known as a line-item veto.
  • Members of Congress are not happy with signing statements as it usually means blocking parts of a bill that Congress actually passed. It creates another gap between Congress and the POTUS.
Recess Appointments:
  • A temporary appointment of the federal official made by the POTUS to fill a vacancy whilst the Senate in is recess.
    • Usually a position in the federal government.
  • The POTUS can do this because the Senate is in recess and therefore they cannot ratify the decision. They expire when Senate returns.
  • Senate has tried to stop this by having a few Senate members present in the Senate every few days so the POTUS cannot use this loophole.
  • It rose to the spotlight in 2012-2014 in the recess during Xmas and the new year. Obama made three appointments to the National Labor Relations Board. The group then ruled against them as they had not been ratified by the Senate. The SC then agreed with the board and not the POTUS. Obama stopped using them after this.
Executive Agreements:
  • An agreement reached between the POTUS and a foreign nation on matters that do not require a formal treaty.
  • An average of just 300 under Carter, Reagan and W Bush – a low number.
  • They can cover matters such as basing American troops overseas or resolving citizens claims from one country to the other.
  • POTUS use them instead of treaties to circumvent Senate as they do not need Senate approval (unlike treaties). Useful when in divided government.
  • Members of Congress can get upset though, this happened in 1994 when Clinton signed a deal about North Korea and members of Congress got upset and told him he should have asked Congress. A few months later Clinton signed NAFTA through an executive agreement.
  • Again, this is just another of the things which widen the gap between the POTUS & Congress.
Theories Of Presidential Power:
  • Neustadt spoke of the power of the power to be persuasion but three years later he wrote: “Weakness is still what I see – weaknesses in the sense of a great gap between what is expected of a man (or someday a woman) and assured capacity to carry through”
The Imperial Presidency:
  • A presidency characterised by the misuse of presidential powers, especially excessive secrecy – especially in foreign policy – and high handedness in dealing with Congress.
  • In 1970, Nixon bombed Cambodia without even the knowledge, let alone the authorisation of Congress
  • Nixon began to use it for domestic policy as well as foreign policy with riots over the Vietnam War. His presidency seemed to be more of an emperor’s court than a helper with Congress.
  • Watergate made critics think that the imperial presidency did not exist. The fact remains that it was Congress that pushed out Nixon whilst Nixon himself said that “I no longer have enough political base in the Congress.
  • He claimed that the imperial presidency had been created by Congressmen who wanted a strong POTUS and now they were having second thoughts.
The Imperilled Presidency:
  • A term coined by President Gerald Ford to refer to a presidency characterised by ineffectiveness and weakness, resulting from congressional over-assertiveness.
  • Congress’s answer to the imperial presidency by passing lots of foreign policy
  • Ford argued that Congress was meddling with presidential powers.
    • “Under today’s rules, which included some misguided ‘reforms’, the presidency does not operate effectively”
The Post-Imperial Presidency:
  • Regan changed the shift into a programme that would restore America’s damaged self-confidence abroad and won the next election by a landslide.
  • His promise that it was “morning again” in America changed the country.
  • He directly called the Soviet Union “the evil empire” and he even went to the Berlin Wall and said, “Mr Gorbachev, open this gate”. The wall was eventually broken, and the Soviet Union collapsed.
  • The USA was the world’s only superpower and presidential power was back!
  • Whilst Clinton was POTUS, the economy boomed but the Lewinsky scandal rocked the presidency yet he survived impeachment
    • “Clinton’s lack of dignity, not to mention his sexual recklessness, was an assault on the office itself” – Elizabeth Drew
  • Bush sort to “unite” America and not divide the country. After winning the election in controversial means his approval ratings shot up the roof following the 9/11 attacks
  • Afterwards, he became a divisive figure by committing to Iraq and lots of incompetence over the federal government's response to Hurricane Katrina. What was an imperial presidency became a lame duck presidency
  • When Obama took office, he had lots of crisis on his hands: the deep economic crisis at home and a world facing terror threats. Whilst he had the Democrat majority in both houses he achieved lots by using his power of persuasion a lot. He worked with Congress to achieve his goals and it worked.
  • Once he became a lame duck, he found himself to be limited and had to use executive orders which meant that in the end, he was an imperial president.
  • David Mervin noted that “the imperial presidency is something of a cliché as It summons up images of the POTUS as an emperor” “POTUS are leaders not rulers which means that they are of course not imperial at all”
    • The FF intended that POTUS power to be limited because that is what makes a successful POTUS.


In What Sense And Evidence Is There, That Suggests The POTUS Controls Foreign Policy:
  • Looking at two iconic pictures (WH Chief-Of-Staff telling Bush about 9/11 & The Obama Administration looking at a monitor with progress on the killing of Bin Laden) you will note that the it is actually the POTUS not Congress who is in charge.
  • Edward Corwin noted that “The Constitution is an invitation to struggle for the privilege of directing American foreign policy. It gives power over foreign policy to both branches of government and a number of constitutional provisions are somewhat vague”
The Constitution And Control Of Foreign Policy:
  • Given two powers: Power of being commander-in-chief and to negotiate treaties
    • Subject to approval e.g Congress can only declare war
    • These checks are open to question e.g Congress have not declared war since 1941, the power of the purse is open to questions as once the POTUS says he wants to send troops, Congress cannot do much about it.
  • The ratification of official appointments are open to Senate approval but this is good because it shows that the USA holds them as a “legitimate state” as these ambassadors e.g Directior of the CIA will be helping in nation states and in international organisations such as the UN.
Setting The Tone:
  • The POTUS is an influencer of foreign policy by set-piece speeches such as the inaugural address or the state of the union.
  • Kennedy said in his inaugural address that “America would pay the price, bear any burden… in order to ensure the survival and success of liberty.” This set the tone of the foreign policy he would implant to in order to end the cold war.
The Bush Doctrine:
  • Following the 9/11 attacks, in the SOTU in 2002 Bush set the tone of the foreign policy when talking about an ‘axis of evil’. What America had gone through allowed him to formulate and announce a new foreign policy doctrine – The Bush Doctrine.
  • The right to wage pre-emptive war would allow America to strike first by defeating communism and fascism by the “virtue of American primacy”
  • They would impose this model on unwilling nations but would seek to “a shape of balance of power that favours human freedom”
  • Essentially, Bush wanted America to play the offensive rather than defensive
Obama’s ‘Soft Power’:
  • Obama went for a more soft power where you can get what you want by attraction rather than coercion.
    • He said that “We will extend a hand if you are willing to unclench your fist”.
  • The promised closure of Guantanamo Bay never went anywhere whilst he increased the use of Drone attacks and attacked Libya. But he withdrew from Iraq and Afghanistan.

Congress & Foreign Policy:
  • Can: Declare war, agree to budgets and confirm appointments. In the 1970s to bring some power back to Congress regarding foreign policy, some laws were passed.
  • One of these laws was the War Powers Act passed over Nixon’s veto in 1973 but this was ineffective because Bush still allowed troops to be sent to Iraq.
    • Gene Healy said “When it comes to matters of war and peace, Congress now occupies a position roughly analogous to that of a student council in university. It is important for the administration to show pro forma respect but there can be no doubt where the real authority lies”
  • Even when the Democrats controlled both houses in Jan 2007, they did not make headway into foreign policy. “Now Congress must use its main power, the power of the purse to put an end to our involvement in this disastrous war” but when the Democrat majority tried to do this, Bush vetoed the bill and the Democrats could not gain enough votes to override the vote.
  • Whilst Congress do have some power e.g the Senate’s Armed Services Committee and can carry out investigation into some foreign policy by the POTUS, their ability to change the direction of policy was negligible
  • Gerald Ford put it “our forefathers knew you could not have 535 commanders-in-chief and secretaries of state. It would just not work”

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