In the news & announcments

Liberal Democrats in Congress are worried about health care reform (that Obama will compromise with Rs on a public plan).

Correction from lecture Thursday on Catholics on the Supreme Court: there are five (Kennedy, Thomas, Scalia, Alito, and Roberts).

FBI background checks.

Nomination hearings

New Yorker article. Hearings as theater. Time to get rid of them? What purpose do they serve?– What types of questions are appropriate? Not

current cases, but general views on legal principles? The commerce clause, government regulation, the Voting Rights Act, etc.

– How to tell if they are lying? – How could the process be improved?

Judicial Review

Historical context: Marbury v. Madison– Silence of the Constitution on the subject of judicial review.– Facts of the case.

The Court has struck down more than 150 acts of Congress and about 1,400 state acts. But Congress passed more than 60,000 laws in its first 215 years. so only about .25% have been struck down by the Court.

Current debates about judicial review– Judicial restraint vs. activism. Is judicial review undemocratic?– Answer to this question usually depends on one’s political views.– Was it the landmark case that the common wisdom says it is?

The contrarian case: it was only a minor case involving judicial issues; it wasn’t cited by the SC until the late 19th century, judicial review itself did not come up again for another fifty years.

Relations between the Supreme Court and other branches

The “weakest branch?” Hamilton, Federalist #78, “Neither the power of the purse nor the sword.” Lack of enforcement power.

– Feud between John Marshall and Andrew Jackson– U.S. v. Nixon – Watergate tapes case– School prayer and desegregation

What can the Court do to get the other branches or the public to go along with its decisions?

– Unanimous decisions.– Sensitivity to public opinion

Reactions by Congress to decisions they don’t like: overturn decisions (if statutory interpretation), calls for impeachment, cut the pay of judges, limit jurisdiction of the courts, block nominations of judges they disagree with.

Fisher article: Congress is an equal partner in Constitutional interp.

Relations between the Supreme Court and other branches, cont.

Political questions: self-imposed limitation by the Court to stay out of political disputes. Boundary disputes, many foreign policy issues (but not all – Guantanamo case, Rasul v. Bush, 2004), internal congressional procedures, and until the 1960s, redistricting.

Should the Court operate in a counter-majoritarian way as protector of minority interests, or does it defer to the popular will? Examples of sticking up for politically unpopular causes: criminal defendants’ rights, school prayer, gay rights, and flag burning. Members of Congress are not willing to support these issues.

Congress and the Presidency

PS 426

April 21-28, 2009

Defining “executive power”?Defining “executive power”?

Is it merely an administrative duty?Is it merely an administrative duty?– Richard Neustadt – the President as “clerk.”Richard Neustadt – the President as “clerk.”

Relatively undefined power. There are two Relatively undefined power. There are two ways to understand executive power.ways to understand executive power.– Neustadt’s argument about informal power: the Neustadt’s argument about informal power: the

power to persuade.power to persuade.– John Locke’s “prerogative power.” Presidential John Locke’s “prerogative power.” Presidential

action in the absence of a specific authorization, action in the absence of a specific authorization, even when it may even when it may violate the lawviolate the law in order to achieve in order to achieve a higher goal – the public gooda higher goal – the public good..

Neustadt and presidential power

Governing within a separated system. What this means for presidential leadership and power? Presidents can rarely lead through commands.

Executive orders and executive agreements. Conditions under which commands can work are very limiting.

Presidential power is the “power to persuade.” Logic isn’t enough. Have to get other players to see that it is in their own interest to do what the president wants. “Tom Sawyer theory” of presidential leadership.

Neustadt, cont.

Professional Reputation (standing in Washington D.C.). Role of anticipated reactions.

Public Prestige (standing in the public). Much more difficult to bargain with Congress when you do not have the support of the public.

The two don’t always go together. Truman and Reagan. Clinton: separation between personal and professional.

Responsibility/responsiveness and reputation/ prestige.

Presidential Approval Ratings1946-2009

0

10

20

30

40

50

60

70

80

90

100

1946 1949 1952 1954 1957 1960 1963 1965 1968 1971 1974 1976 1979 1981 1984 1987 1990 1993 1995 2000 2004 2009

Truman

IkeJFK

LBJ

Nixon

Ford

Carter

Reagan

Bush 41

Clinton

Bush 43

Obama

Clinton's popularity, 1993-2001

0

10

20

30

40

50

60

70

801 5 9

13

17

21

25

29

33

37

41

45

49

53

57

61

65

69

73

77

81

85

89

93

97

10

1

10

5

Month

ap

pro

val ra

te

Presidential Approval Rating, George W. Bush, 2001-2008

(Source: CBS News/NY Times Poll)

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20

40

60

80

100

Public Prestige

Overall trends: declining support, after initial “honeymoon” period. Eisenhower and Clinton are the two biggest exceptions (Reagan to some extent as well).

Bush’s poll numbers: three periods: pre-911, 9/11/01 through Iraq invasion (3/03), and the period since then.

Obama already is experiencing some of the drop in the polls that is typical of a first term. A very short honeymoon!

Neustadt, cont.

“Making right choices.” Have to guard the long-term power stakes.

Gays in the military example in 1993 with Clinton and the U.S. attorneys mess with Bush – need to cut your losses.

Have to get the right information. Have to “teach reality.” Fight against unrealistic

expectations. Will immigration reform be Obama’s example of

a wrong strategic choice?

The range of possible outcomes

Inaction – gridlock/deadlock Congressional opposition (Congress dominant) Congressional opposition (pres dominant) Compromise – both give up something Consensus – agree on the basic policy, work together. flight – the President will anticipate that Congress will

not go along with the policy, so he will attempt to get some action on the policy proposal by going outside the legislative process. Will issue an executive order or attempt to get bureaucratic compliance. “Going public” is another possible angle on this.

The “two presidencies”

Aaron Wildavsky’s argument that there is one presidency for domestic policy and another for foreign policy.

Stakes are higher in foreign policy. Other actors (courts, Congress, public, interest groups) are more willing to defer to the president in foreign policy.

However, Congress has become more active in FP in the past 30 years. Also, issues are increasingly difficult to define as “foreign” or “domestic” – “intermestic” issues.

War Powers – Founders’ Intent

Intent of Framers is very clearIntent of Framers is very clear– giving power to declare war to Congress designed to take the giving power to declare war to Congress designed to take the

power away from any individualpower away from any individual– original language said “make war,” but changed to “declare” to original language said “make war,” but changed to “declare” to

give president the power to repel sudden attacksgive president the power to repel sudden attacks– Rejection of royal prerogative of war makingRejection of royal prerogative of war making

Presidents have initiated military action hundreds of times Presidents have initiated military action hundreds of times over historyover history

Constitution gives Congress the power toConstitution gives Congress the power to declare wardeclare war raise and support armies and naviesraise and support armies and navies

Founders’ views, cont.

Other congressional war powers:– ““make rules concerning captures on land and water,”make rules concerning captures on land and water,”– ““regulation of the land and naval forces.”regulation of the land and naval forces.”– ““provide for calling the Militia to execute the Laws of the Union, provide for calling the Militia to execute the Laws of the Union,

suppress insurrections and repel Invasions”suppress insurrections and repel Invasions”– Provide for organizing, arming, and disciplining the Militia.– Define and punish piracies and felonies committed on the high

seas. Should Nancy Pelosi and Harry Reid given the order to the Navy Seals in the Somalia case rather than Obama?

Stark contrast to the president’s “commander in chief” powers.

Questions About the War PowerQuestions About the War Power

Supporters of a strong interpretation of presidential power point to three things:

– President is commander in chief, – changing language from “make war” to “declare war,”– desire to separate the power of the purse from the power of the

sword. Wouldn’t want Congress to have both.

Is a war different from a use of military force?Is a war different from a use of military force? Is Congress’ continued appropriation of $ an implicit Is Congress’ continued appropriation of $ an implicit

authorization?authorization? How can Congress stop a president?How can Congress stop a president?

Presidential Use of ForcePresidential Use of Force

Only five congressionally declared wars: Only five congressionally declared wars: – War of 1812, Mexican-American War (1846), Spanish War of 1812, Mexican-American War (1846), Spanish

American War (1898), WWI (1917), WWII (1941). American War (1898), WWI (1917), WWII (1941).

Congressional authorization of use of force:Congressional authorization of use of force:– Vietnam (sort of, because of the Gulf of Tonkin Vietnam (sort of, because of the Gulf of Tonkin

Resolution), Persian Gulf (1991), Afghanistan (2001), Resolution), Persian Gulf (1991), Afghanistan (2001), Iraq (2003) and about 8 or 9 others.Iraq (2003) and about 8 or 9 others.

Cases of “unauthorized” use of forceCases of “unauthorized” use of force– Operation Just Cause (Panama, 1989), Korea (1950-Operation Just Cause (Panama, 1989), Korea (1950-

53), Grenada (1983), Persian Gulf (1990, 1993, 1998, 53), Grenada (1983), Persian Gulf (1990, 1993, 1998, 1999), list goes on – at least 125 cases.1999), list goes on – at least 125 cases.

Early History

The Neutrality Proclamation: In 1793, Washington The Neutrality Proclamation: In 1793, Washington issued a proclamation proclaiming that the U.S. would issued a proclamation proclaiming that the U.S. would be neutral in the war between France and Britain, and be neutral in the war between France and Britain, and that the U.S. would not come to the aid of any citizen that the U.S. would not come to the aid of any citizen who got involvedwho got involved

Question: if the president cannot “declare war,” can he Question: if the president cannot “declare war,” can he declare the declare the absence of war?absence of war?

Flying Fish case, Flying Fish case, Little v BarremeLittle v Barreme (1804). Early war (1804). Early war powers case that sided with Congress. Has never been powers case that sided with Congress. Has never been overturned.overturned.

Examples of prerogative power in the Examples of prerogative power in the context of warcontext of war

Lincoln, during Civil War:Lincoln, during Civil War:– suspended habeas corpus, increased the size of military without suspended habeas corpus, increased the size of military without

a congressional authorization, spent money without a congressional authorization, spent money without congressional appropriation, blockaded Southern ports (an act of congressional appropriation, blockaded Southern ports (an act of war), censored the mail.war), censored the mail.

Roosevelt, 1942:Roosevelt, 1942:– asked Congress to revise emergency economic legislation. If asked Congress to revise emergency economic legislation. If

they refused, FDR said he would just act as if Congress had they refused, FDR said he would just act as if Congress had given him the power he said he needed.given him the power he said he needed.

President Bush and the war on terror: extraordinary President Bush and the war on terror: extraordinary rendition, torture, and domestic surveillance. rendition, torture, and domestic surveillance.

Criticism of “Prerogative” Power

Inconsistent with concept of limited government.Inconsistent with concept of limited government. Very difficult to specify rules that distinguish Very difficult to specify rules that distinguish

valid vs. invalid cases.valid vs. invalid cases. Most of the time, we simply finesse the question.Most of the time, we simply finesse the question. However, very common during war time. Basis

for a more general understanding of presidential war power.

President’s Role in Foreign PolicyPresident’s Role in Foreign Policy

Clear trend: expansion of presidential foreign Clear trend: expansion of presidential foreign policy powers, in ways not anticipated by policy powers, in ways not anticipated by Framers.Framers.

War powers, again: presidents have assumed War powers, again: presidents have assumed power of committing military to combat action, power of committing military to combat action, without congressional declaration of war.without congressional declaration of war.

Presidential justification:Presidential justification:– commander in chief powercommander in chief power– president as “sole organ of foreign affairs”president as “sole organ of foreign affairs”– congressional clumsiness and inefficiency.congressional clumsiness and inefficiency.

Supreme Court CasesSupreme Court Cases

U.S. v. Curtiss WrightU.S. v. Curtiss Wright (1934) (1934)– President, acting pursuant to legislative authority, imposed an President, acting pursuant to legislative authority, imposed an

embargo on arms shipments to Paraguay and Uruguayembargo on arms shipments to Paraguay and Uruguay– obiter dictaobiter dicta (reasoning that has nothing to do with the case at (reasoning that has nothing to do with the case at

hand): president has plenary powers in foreign affairs, and certain hand): president has plenary powers in foreign affairs, and certain “extra constitutional” powers“extra constitutional” powers

– criticized as historically inaccurate and poorly reasoned, but often criticized as historically inaccurate and poorly reasoned, but often cited as support for presidential initiativecited as support for presidential initiative

Korematsu v. U.S. Korematsu v. U.S. (1944)(1944)– Internment of Japanese Americans upheld as valid exercise of Internment of Japanese Americans upheld as valid exercise of

military discretion (authorized by Congress).military discretion (authorized by Congress).– dissent held that it was an obvious violation of the 5th and 14th dissent held that it was an obvious violation of the 5th and 14th

amendments, since the exclusion was based on group amendments, since the exclusion was based on group membership, not any specific investigations.membership, not any specific investigations.

Reaching Too Far: TrumanReaching Too Far: Truman

During Korean War, Truman ordered Secretary of During Korean War, Truman ordered Secretary of Commerce to take control of steel mills. Truman Commerce to take control of steel mills. Truman claimed inherent, emergency powers:claimed inherent, emergency powers:– Q: Mr. President, if you can seize the steel mills under your Q: Mr. President, if you can seize the steel mills under your

inherent powers, can you, in your opinion, also seize the inherent powers, can you, in your opinion, also seize the newspapers and/or the radio stations? The President: Under newspapers and/or the radio stations? The President: Under similar circumstances the President of the United States has to similar circumstances the President of the United States has to act for whatever is for the best of the country. That’s the act for whatever is for the best of the country. That’s the answer to your question.answer to your question.

Use of power struck down in Use of power struck down in Youngstown Sheet and Youngstown Sheet and Tube v. SawyerTube v. Sawyer (1952). Established that there is no (1952). Established that there is no unlimited emergency prerogative, even in wartimeunlimited emergency prerogative, even in wartime..

Reaching Too Far: George W. BushReaching Too Far: George W. Bush

Hamdi v. Rumsfeld, (2004) Supreme Court reversed the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.

Rasul v. Bush, (2004), Supreme Court established that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned.

Hamdan v. Rumsfeld, (2006), Supreme Court held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay "violate both the UCMJ and the four Geneva Conventions."

Congressional Response: The War Congressional Response: The War Powers Act (1973)Powers Act (1973)

Congressional reaction to Vietnam, Nixon’s “imperial Congressional reaction to Vietnam, Nixon’s “imperial presidency,” and erosion of congressional war powerpresidency,” and erosion of congressional war power– Nixon expanded U.S. attacks into Cambodia in 1970, despite Nixon expanded U.S. attacks into Cambodia in 1970, despite

congressional restriction that specified that the U.S. was not congressional restriction that specified that the U.S. was not committed to its defensecommitted to its defense

– 1971: appropriations language stating that the U.S. should end 1971: appropriations language stating that the U.S. should end military operations “at the earliest practicable date”military operations “at the earliest practicable date”

requires president to consult “in every possible instance” requires president to consult “in every possible instance” before sending troops into combat.before sending troops into combat.

Limits use of troops to 60 days (with a 30 day extension), Limits use of troops to 60 days (with a 30 day extension), unless Congress approves the deployment.unless Congress approves the deployment.

War Powers Act, cont.War Powers Act, cont.

““In the absence of a declaration of war, in any case in In the absence of a declaration of war, in any case in which U.S. armed forces are introduced. . . The which U.S. armed forces are introduced. . . The President shall submit within 48 hours a report” detailing President shall submit within 48 hours a report” detailing the circumstances, authority, and scope of deployment.the circumstances, authority, and scope of deployment.

Consensus that the law is probably unconstitutional, Consensus that the law is probably unconstitutional, although it has never been tested in court.although it has never been tested in court.

No court likely to intervene in this dispute.No court likely to intervene in this dispute. Conclusive evidence that it has had no effect on Conclusive evidence that it has had no effect on

presidential commitment.presidential commitment. Congress attempting to use the power of the purse to

bring the troops home.

Sharing information, executive privilegeSharing information, executive privilege

Constitution is silent on question of whether president can Constitution is silent on question of whether president can keep information secret from Congress and the publickeep information secret from Congress and the public

Specifically allows Congress to keep its records secret, Specifically allows Congress to keep its records secret, requiring publication “excepting such parts as may in their requiring publication “excepting such parts as may in their judgment require secrecy”judgment require secrecy”

Supreme court: “in the area of basic national defense, the Supreme court: “in the area of basic national defense, the frequent need for absolute secrecy is, of course, self frequent need for absolute secrecy is, of course, self evident.”evident.”

However, However, U.S. v. NixonU.S. v. Nixon (1974) put limits on the claims of (1974) put limits on the claims of executive privilege. Current controversy over the U.S. executive privilege. Current controversy over the U.S. attorneys may help sort this out.attorneys may help sort this out.

Evolution of Presidential PowerEvolution of Presidential Power

While presidential power cannot be specifically While presidential power cannot be specifically defined, we can, however, make the general defined, we can, however, make the general argument that presidential power has grown argument that presidential power has grown since the Founding.since the Founding.

Reasons:Reasons:– doctrinal changes in interpreting executive powerdoctrinal changes in interpreting executive power– growth in size of federal governmentgrowth in size of federal government– delegation of power by Congressdelegation of power by Congress– growth in presidential agenda setting and public growth in presidential agenda setting and public

appeals powerappeals power– presidential advantages with respect to Congresspresidential advantages with respect to Congress

Important recent development: Signing Statements

Presidential signing statements are pronouncements issued by the president when he signs a law that, in addition to providing general commentary, identify provisions of the legislation with which the president has concerns and (1) provide the president's interpretation of the language of the law, (2) announce constitutional limits on the implementation of some of its provisions, or (3) indicate directions to executive branch officials as to how to administer the new law in an acceptable manner.

Practice has been common since the 1980s. Differences in counting; Bush issued between 150 and 750 signing statements, depending on how they are counted. Key difference is that a higher proportion of Bush’s statements raise constitutional questions.

Constitutionality of this practice is unclear: the Court will have to define its limits.

Frequency of signing statements

Number Percent Constitutional

Reagan 276 26% GHW Bush 214 68% Clinton 391 27% GW Bush 150-750 86%

Source: 2006 CRS report and Boston Globe data.

Divided Government

Historic patterns Causes

– Incumbency. Democrats in control when incumbency safety increased. Also, behavior that is linked to incumbency safety is more consistent with Democratic views of the role of government. But doesn’t explain the Senate or recent changes since 1994.

– Purposeful explanations: Fiorina, partisan balancing and Jacobson, party balancing. Some evidence to support this. A less sophisticated version of this approach is the “pox on both your houses” version: voters are disenchanted with the parties and want them to check each other.

Divided Government, cont.

Consequences– Responsibility / Accountability Nobody to blame when things

go wrong. “Blame game.”– Gridlock / efficiency. Evidence is not as clear here. Binder

says you have to look at the size of the agenda, not just the output. Other factors also important: ideological polarization, distance between the House and Senate in ideology, and public mood. Also, evidence for gridlock is not just major legislation but also confirmations, control of the bureaucracy, and other aspects of the daily political process.

– Impact on the budget deficits, political careers, approval of Congress.