US Executive - The Waxing and Waning of Presidential Power

President Obama Waxing & Waning of his Presidential Power:

• Waxing: Growing powers
• Waning: Shrinking powers.
• Obama felt this during his single presidency over two terms.
• His power was waxing after being elected on a wave of optimism in 2008, welcomed by Black Americans. He also had control of both Houses of Congress.
• Following the economic crisis, but Obama used his first 100 days and was rewarded with the highest approval ratings for that period since the 1970s.
  • Economic stimulus, support for automobile industry and Obamacare.
• In 2010, the Republicans won a majority in the House and Obama’s power was waning as Conservatives loathed who thought Obamacare expanded the role of federal government too far into people lives.
• Obama fought back with his waxing powers by using executive orders to avoid becoming a lame duck President.
• His powers to protect illegal immigrants from deportation was deemed unconstitutional by the courts.
• Finally his power had been waxed to fill a vacancy on the Supreme Court was blocked by the Senate which refused to consider his nominee.

Executive Orders:

• Under Obama: Used a lot in terms of LGBT rights – people with HIV were no longer barred from entering the country and would not be discriminated against in terms of buying a house. Finally, same-sex couples could now take family and medical leave.
• Can go back and forth in terms of can be revoked. Family planning clinics were stopped by Regan, re-introduced by Clinton and stopped by Bush in his second day of office before being re-introduced by Obama. Presidential Ping-Pong.
• Can be deemed unconstitutional by the courts. In 2014, DAPA allowed an indefinite delay in their deportation but Texas along with Republican governors claiming that such a programme could not happened without Congress approval.

US Executive - Comparing the Two Executives with Theories

• Executive: The branch of government that implements, directs and administers laws and governs a nation.
  • In the UK: PM, Cabinet and top Civil Servants
  • In the USA: POTUS & VPOTUS, Cabinet, EXOP, and White House Office Staff.
    • Structurally: In the USA, the executive is merely whoever the POTUS wishes, in the UK this is more set in stone.
• Structural: The Cabinet in the USA is not powerful, it is merely advisory. POTUS who sets the tone of politics in America.
  • The Cabinet “may give advice and opinions in writing”
  • Constitution structurally puts a check on the POTUS. Congress also does this.
    • This is to avoid tyranny.
  • Even though the POTUS can set the policy agenda, Congress can merely decide not to give the money and thus end that bill or action e.g Congress vetoing the budget.
    • Supreme Court may also strike down actions or legislation proposed by the POTUS e.g Trump’s “Muslim” ban 2017
• Mandate: The authority and legitimacy given by an election e.g May currently has a poor mandate whilst Blair and Thatcher had big majorities hence a bigger mandate and more control overall.
• Structurally: The UK have always had a King or Queen therefore they remain head of state thus limiting the powers of the PM. Though this has decreased in recent years with the rise of prerogative powers.

Powers of the PM:

• Patronage: Act of appointing someone to a post e.g life peer, honour system and to the cabinet.
  • This is important because it rewards loyal ministers. This is a way of keeping people on side and happy. Important so you don’t not get ousted by the party as the PM have helped them.
• Treaties: Agreement with a country about anything but usually on war, trade and peace.
• Commander-in-Chief: Head of the army but recently held by Parliament – a convention – political norm
• Heading up Foreign Policy: The PM’s moral authority in other nations e.g Blair and the Euro 2003
• Setting up the Overall Agenda: Thatcher’s neo-liberalism approach to remove trade unions and remove the post-war consensus. Can also be done through taking their seat in Parliament and voting – done on party lines.

PM Relationship with the Legislature:

• As long as he or she holds a majority the PM effectively controls the legislature.
• HOL can delay for up to one year but this does nothing to thwart the will of PM
  • Structurally: This makes the PM more powerful as passing legislation is easier as he/she is less subject to scrutiny and also means the PM is likely to get their way with foreign policy.
• Scrutiny is provided by select committees, opposition days and PMQs.

Powers of POTUS:

• Patronage: Appointments to Cabinet and SC
• Commander-In-Chief: For example, Bush played a role in the War on Terror
• Represents the Nation Abroad: Meeting other leaders e.g G20 summit.
• Enact laws and Veto them: Trump removed Obamacare and removed America from the Iran and Paris agreement.
• Dependant on party support and control in both houses to pass laws.
• POTUS can pass Congress through executive orders, standing statements and recess appointments.
• Power is bound by the Constitution.
  • Structurally, this sets up the POTUS as a weaker player as Congress is first mentioned in the Constitution.

POTUS Relationship with Legislature:

• POTUS is directly elected and is thus not part of the legislature meaning he has less control over Congress.
  • True if he becomes a lame duck e.g Trump in 2018 losing the HOR to the Democrats.
• Structurally: The Senate is much more powerful than the Lords in the UK.
  • Senate is elected and has exclusive powers e.g rejecting SC nominees.
  • Equally, Congress has limited power to remove a POTUS unless they choose to impeach this but this is hard.
  • HOL is not elected and has very little power.

Rationally:

• Both PM and POTUS act in a self-serving way in order to pursue their own interests and protect their positions.
  • Manifesto promises especially if seeking re-election.
• POTUS usually wants to get major policies through in the first two years in order to minimise problems following the mid-term elections.

Structurally:

• POTUS is more constrained by the separation of powers leading to checks and balances meaning they must check their powers before acting.
• PM can dominate politics in the UK as they are part of the legislature but they must ensure the loyalty of MPs.

Culturally:

• Both PM and POTUS are members of a political party and so have to act within the party line as both rely on support in legislature.
• POTUS enjoys his own mandate and so are less constricted by their party.
  • History and culture of US politics also mean a POTUS has to face two elected chambers rather than the weaker, unelected second chamber in the UK – the House of Lords.

US Executive - Comparing the UK And US Executive

POTUS & PM Roles & Powers:
POTUS:	PM:
Elected as POTUS	Elected as party leader
Chief executive and head of state	Head of government only
Legislation: initiating and veto powers	Draws up government’s legislative programme with cabinet
Appoints the cabinet but subject to Senate’s approval	Appoints cabinet with no confirmation
Commander-In-Chief of the Armed Forces, but only Congress can declare war	Can use royal prerogative to declare war and deploy troops abroad but recently subject to Parliament approval
Has a VPOTUS	May appoint a deputy PM
Has a large executive office of the POTUS	Has a small number 10 staff and cabinet office
Variety of means to pursue policy unilaterally: executive orders, signing statements etc	More likely to purse policy collective, through either cabinet or cabinet committees
Limited to two full terms in office	No term limits

POTUS & PM Relationship With Legislature:
POTUS With Congress:	PM With Parliament:
State of the union address	Queen’s speech
Dependant on the Senate for confirmation on numerous appointments	Makes appointments without the need for Parliament to consent
Possibility of divided government	May not have a majority in both houses
Budget may be significantly amended or defeated in Congress	Budget subject to Parliament scrutiny
No executive branch members in Congress	Executive branch members in both houses and dominate HOC
Not subject to personal questioning by member of Congress	Prime Minister’s Question Time
Gets agreement in Congress mostly by persuasion and bargaining	Gets agreement in Parliament mostly through party discipline and reliance on the payroll vote in the HOC
POTUS is subject to impeachment	PM and government are subject to ‘no confidence’

POTUS & PM Relationship With Cabinet:
US Cabinet:	UK Cabinet:
Serving members of the legislature barred from serving	Membership executive to Parliament
POTUS appointments are subject to Senate confirmation	No formal limit on cabinet appointments
POTUS decides frequency and regularity of meetings	PM obliged to maintain frequency and regularity of meetings
POTUS is “first among equals”	Collective decision-making body
Members recruited for policy specialisation – they do not move department	Policy generalists hence cabinet reshuffles
Strangers to the POTUS – no shadow cabinet	Made up on long serving parliament colleagues and shadow cabinet
Some members only see the POTUS in meetings	Meets cabinet every week
No collective responsibility	Collective responsibility is present

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”

US Executive - What Makes A Successful President

Letter:	What It Stands For:	How:	Successes:	Failures:
P	opularity	Poll ratings	Clinton	W Bush, Obama
U	nderstanding Of Washington Politics	Be in the Senate before you become POTUS	Obama, Bush Nixon	Trump
M	oral Authority	Family man? Charming?	Obama, Bush, JFK	Clinton
P	ower Of Persuasion	Only with the majority in both houses	Reagan	Almost all POTUS
U	nderstanding Of International Politics	Good relationship with counterparts	Johnson, Regan	Obama
P	arty Control In Congress	Winning the mid-terms	Regan	Almost all POTUS

Informal & Formal Checks On The POTUS:
Congress:	Supreme Court:	Other:
Amend, delay or reject the POTUS legislative proposals	Can deem anything the POTUS does ‘unconstitutional’	Interest groups show their opinion directly to the POTUS
Override the POTUS veto		The public show their opinion by voting
Power of the purse and war
Ratifying treaties
Reject nominations
Impeachment

Five Factors That Affect The POTUS Success:

1. Electoral Mandate: Larger electoral mandates usually leads to greater success. Regan had a very powerful mandate in his second term as he won every state bar 1 (49).
   1. It is very unlikely that you can sweep the whole nation, Regan came close. Experts doubt, anyone will come close again.
2. Public Approval: Elections are short term ways to see who the nation likes but poll ratings are a very good indicator of how well a POTUS is doing in the public’s eye.
   1. Bush’s approval ratings shot out of the roof after the 9/11 attacks. They went from 53% to 90% the day after the attacks. They remained at 90-70% for up to 4 months after. They went down during the Iraq war.
      1. The fact that Clinton had high approval ratings likely helped him not to get impeached. It was unlikely that the Democrats would risk removing a POTUS who was popular.
3. First/Second Term: POTUS tend to have to easy during their first term and they tend to propose their more “radical” policies.
4. Divided/Undivided Government: The POTUS can do more if they have control of both houses.
   1. Control of both houses = higher success and you’re not a lame duck
   2. Hard to do because most POTUS end up as lame ducks. The country wants change.
5. Crisis: After 9/11, Bush’s approval ratings shot out of the roof after a “rallying effect” when the country decided to support him. It helped that he addressed the nation 3 times in a week, at Primetime each time.

US Executive - Relationship between the President & Congress

Neustadt’s Famous Remark:

• The President’s power is the power to persuade”
  • Obama tried to persuade the Speaker of Congress for a joint-meeting with HOR and the Senate to introduce a new bill which could be agreed on but he said no to Oct 7^th and no to Oct 8^th. The 7^th was the first Republican primary debate (Obama thought he could take attention from it by making a statement at primetime to the nation) whilst the 8^th Oct was the opening day of the AFL. This is the first time the speaker has denied

Why Does He Need This Power:

• He needs this power to succeed as he Congress’s agreement in anything in does
• Party links do not help as the POTUS usually finds themselves a lame duck towards the end of their presidency
• “What the Constitution separates, the political parties do not combine” – Neustadt

The President Persuading Through People:

• VPOTUS: The 7 VPOTUS have all been in Congress. Joe Biden quickly became Obama’s right-hand man due to vast experience in the Senate (36 years). When people had trouble, they went to Biden not Obama.
• Members Of The Office Of Legislative Affairs: Members of the White House Office who work as full time lobbyists. They meet Congressmen as well as senior members of the their staff. The staff is organised in such a way that the relationship between the House and the Senate works and it works well.
• Cabinet Officers: Deployed by the White House to talk with members of Congress in their own policy areas. W Bush used education secretary Rod Paige to sell his education reform package to Congress in 2001.
• Party Leadership In Congress: The house speaker, the leaders of both houses. It helps if the POTUS and both houses are in the same party. Obama had this for 6 years but for not his last 2 (lame duck). Personality also plays a key factor in this, if you speak well and are more gregarious like Bill Clinton, you had a good relationship with the speaker and could get things done.

The President Persuading Through Perks:

• Phone Calls: In an important budget vote in the House in August 1993, Clinton phoned Democrat House member, Marjorie to ask her to vote on way, her vote was crucial as Clinton won the vote by 2. Don’t do what Ileana Lehtinen did in 2008 when she told POTUS-elect Obama “you’re a better impersonator than that guy who does Obama on Saturday Night Live”
• Inviting Members To The White House: This is more personal than a phonecall and can make members vote in certain ways. If the member helps the POTUS and they’re part of the same party, the POTUS will help them with their re-election campaign at the mid-term elections. A very popular POTUS doesn’t even have to invite members, he can just speak to them on the TV at Primetime. This is what President Johnson called “putting Congress’s feet to the fire”

Mervin’s Quote:

• In 1993, he described the POTUS as “bargainer-in-chief”
  • He argued that a POTUS is fighting for their legislation to be passed, their appointments confirmed and their budget approved.
  • Mark Peterson described the POTUS as “Leaders are those who makes things happen”.

The Graphic On POTUS’s Support Scores:

• POTUS support tends to decline during a term. Having one’s party control in both houses of Congress usually drives the support score up. Loss of control of Congress usually results in a dip in the POTUS support score: Seen for Clinton, Bush and Obama.

3 Reasons Why The POTUS Finds It Hard To Build Support For Legislation:

1. Members of Congress are much more aware of the constituents wishes through emails and are less willing to go along with the POTUS’s wishes.
2. Changes in the methods of choosing Presidential candidates. Clinton, Bush and Trump don’t know much about Congress than POTUS who have actually worked in Congress like Nixon and Ford and as such do not have a special relationship with certain members of Congress.
3. Divided government is a significant factor. A POTUS who is in control of divided government is less likely to get anything done. Obama’s Economic Package in 2009 received no Republican votes in the House and just three in the Senate.
   1. The type of legislation could mean one party could vote in favour of it e.g Obama’s ‘Every Student Succeed’ Act received the support of 12 Republicans in the Senate and 64 in the House despite Obama being part of a divided government.