Growth of National Government & Presidential Power

Growth of National Government

• After World War I, the U.S. became a global power, increasing presidential focus on foreign relations.
• Domestic government functions and presidential responsibilities significantly grew.
• The federal government increasingly regulated and funded services like agriculture, safety, and environmental protection, previously managed by state and local governments.
• The USDA manages agricultural policy, offering services from crop planting to marketing.
• Regulatory agencies like OSHA, EPA, SEC, and FDA regulate farm-related activities.
• The federal government's growing presence in almost every sector resulted in a large bureaucracy.
• Modern laws delegate broad powers to the president to oversee and modify existing programs, increasing presidential influence.

The President as an Independent Agent

• The president has statutory authority to execute laws and make policy adjustments, ensuring the faithful execution of laws through the “take care” clause.
• Congress delegates authority to the president to implement policy.
• Voters elect the president, unlike a typical agent under a principal, establishing presidential independence.
• Presidential policy interests may conflict with those of Congress, leading to struggles over national policy direction.
• Presidents often initiate legislation, and Congress must consider these proposals carefully, especially regarding budgets and adjustments to policy.
• Congressional leaders may prioritize political goals, such as preventing the president from achieving certain political aims over legislative collaboration.

Divided Party Control of Government

• Historically, party control was unified between the legislative and presidential branches, but a divided system of government transformed this.
• Divided government occurs when one party controls the executive branch (White House) and the other controls the legislative branch (one or both branches of Congress).
• Clashes typically arise between the House and the President if they are from rival parties.
• Each side thrives when the other fails, leading modern Presidents to become self-reliant and seek aid from the Courts.
• Between 1920 and 1946, divided government emerged only once when the Democratic party took control of the House of Representatives.
• After the Republican party’s “Contract with America” campaign, only 6 of 14 congresses have had one party control both the executive and legislative branches.

Executive Privilege

• The U.S. Constitution does not explicitly protect presidents from opposition efforts to discredit them or remove them via impeachment.
• Past presidents have used executive privilege to shield themselves from investigations.
• Executive privilege means certain presidential communications must remain confidential to preserve the separation of powers.
• The Supreme Court has upheld executive privilege but ruled that it does not apply when a president is accused of a crime/impeachable offense.
• Nixon’s administration attempted to cover up White House involvement in the break-in at the DNC headquarters in the Watergate building.
• The cover-up became a central issue, leading to Nixon’s resignation.
• Nixon refused to hand over Oval Office recordings, citing executive privilege.
• The Supreme Court ruled that executive privilege cannot be used to withhold evidence in criminal or impeachment conversations.
• Nixon was forced to release the tapes, revealing his role in the cover-up, leading to his impeachment and resignation.
• Bill Clinton was impeached by the House of Representatives but acquitted in the Senate.
• Clinton invoked executive privilege 14 times to resist providing information to the special prosecutor.
• Trump faced legal battles with the Democratic-led Congress regarding executive privilege.
• Congress sought documents and testimony during impeachment hearings.
• The Supreme Court revised the application of executive privilege, stating Congress must have a valid legislation or legal reason to demand information.
• If impeachment efforts fail, Congress cannot continue issuing subpoenas just for partisan purposes.
• The ruling placed new limits on Congress’s ability to investigate presidents once impeachment efforts have been exhausted.

Immunity from Prosecution

• Divided party control in Washington leads to congressional investigations, especially in the House, to expose mistakes or misconduct that could damage the president’s party in elections.
• Investigations have led to impeachment proceedings.
• Richard Nixon (1974) resigned before the House could vote on impeachment.
• Bill Clinton (1998) & Donald Trump (2019) were impeached but not removed.
• George W. Bush faced impeachment petitions over the Iraq invasion but was never formally impeached.
• Impeachment requires a House majority vote, but removal from office needs a two-thirds majority in the Senate.
• Political conflict has led opposition legislators and state attorneys general to file civil and criminal charges against presidents.
• Key legal questions include whether a sitting president can face civil or criminal prosecution, whether investigations can cover actions before taking office, and whether third parties can be sued for relevant information.
• In 2019, lawsuits against Trump resulted in mixed Supreme Court decisions.
• Congress must have a valid legislative reason to access a president’s private information.
• States (e.g., New York) had more legal freedom, and a lawsuit against Trump was allowed to proceed.
• Presidents have increasingly acted unilaterally when facing opposition-controlled Congresses.
• Strategies include executive orders to bypass Congress, centralized administration to exert more control over government agencies, broad assertions of executive privilege to limit congressional oversight, and going public to directly appeal to citizens for support on policies and legislative priorities.

Commander-in-Chief

• The Constitution declares the president to be commander in chief of the nation’s armed forces.
• The Framers input the check on the President’s power such that Congress can only declare war.
• In 1973, Congress approved the War Powers Act over President Nixon’s veto, granting new authority to itself.
• The president needs to inform Congress within forty-eight hours of committing troops abroad in military action.
• Operations must end within 60 days unless Congress approves an extension.

Head of State

• The Framers discerned that a single executive would enjoy an inherent advantage over Congress in conducting foreign policy.
• President George Washington interpreted the Constitution’s provision “to receive Ambassadors and other public ministers” to mean that he alone could decide whether the United States would recognize a new government and “receive” its ambassadors.
• The most important constitutional limitation on the president’s leadership in foreign affairs is the requirement that a two-thirds majority of the Senate ratifies treaties.
• The Senate has, at times, rebuffed a president’s leadership by rejecting a treaty negotiated by the White House.
• The Senate’s ratification authority has proven less consequential than the Framers envisioned
• To sidestep the difficulty in assembling a two-thirds majority of the Senate, presidents sometimes negotiate executive agreements, which are exempt from Senate ratification.
• Executive agreements is international agreements made by the U.S. president without the need for Senate approval, allowing for quick and flexible diplomatic actions
• Presidents use them at times to end-run the Senate altogether
• Treaties have the same legal standing of federal law, agreements can easily be undone or modified.
• Congress can pass laws removing or amending these agreements, the courts can void them as violating current law, and presidents can rescind them.

The President as Chief Executive

• Article II is general and not very detailed.
• Article II Section 2 states the president may appoint government officers “by and with the Advice and Consent of the Senate” (majority confirmation vote).
• Article II Section 2 basically gave Congress the authority to define the president’s role and does not include a provision for cabinet.
• To save time and resources, Congress delegated to the President some administration and discretion to adjust policy.
• It was usually the case that the same party controlled the legislative and executive branches during early 20th century.
• Modern divided party control makes for a more complicated situation.
• Congress can choose to delegate as much or as little rule making authority to the president as it thinks prudent.
• Sometimes more about politics than efficiency, deliberately making general policy to let the President and administration deal with specifics / take the blame.
• Unitary executive theory is the interpretation of the Constitution that the president can take whatever actions they think necessary within the law.
• Presidents have authority over government programs through executive orders, informal instruction to their appointees, and can replace department/agency executives that disagree with the president’s policies
• Presidential memorandum is an alternate administrative instruction to executive orders that directs agencies to take specific actions as if the president were supervising
• Presidential memorandum does the same thing as executive order: notifies public of a new regulation or administrative action
• The only differnce is the wording, memorandum usually used to avoid attention
• Executive action is not the same as a law
• Presidents can only act with powers given to them by existing laws and lack the permanence of laws
• Emergency powers relates to giving the president enough power without giving them too much power
• Framers were unwilling to delegate too much power to the president, but realized they would need to depend on an energetic executive during time of need.
• Over successive congresses and finally in 2020, 136 new laws temporarily expanded the president’s authority in time of need.
• It covers a vast array of circumstances, including military action, land use, agriculture, trade, and criminal law.
• Two examples from Trump’s presidency include the Insurrection Act of 1807 to call federal troops into Portland, Oregon, to quell continuing rioting and use of the Defense Production Act to produce hospital ventilators to deal with the surge of COVID-19 patients.
• Presidents are in charge of formulating and sending the annual budget to Congress concerning all federal programs.
• The annual budget sets national spending priorities
• Until the 1920s agencies sent their budget requests directly to the House Appropriations Committee, which deliberated on the requests and sent them to the chamber for further discussion and voting, and eventually to the Senate for consideration, and the president was not asked for his views
• This changed in 1921, when Congress passed the Budget and Accounting Act, which strengthened the president’s role in national policymaking by giving the president responsibility for compiling budgets from the executive departments and submitting them to lawmakers as a single package.
• The annual budget is submitted to Congress by the president on the first Monday in February.
• The budget supplies congressional committees with economic forecasts, projected tax revenues, baseline spending estimates for each program, and other essential information for spending legislation.
• Congress can either approve the budget, modify it, or completely throw it out and replace it with a congressional budget.

Veto

• The veto is defined by the constitution as the president's power to prevent the passing of bills; the president has a 10 day grace period
• This is the president’s most formidable tool in dealing with a Congress controlled by the opposition political party
• Line-item veto is An act from 1996 that proposed within 5 days of congress signing a bill into a law, the president/chief legislator could cancel specific (usually spending) provisions of legislation without having to veto an entire bill
• The president can not change part of a bill and must accept or reject it outright
• For decades, presidents have issued signing statements representing their view about the bill they were signing; most such statements are congratulatory, but during periods of divided government, presidents may include them to express their understanding of the legislation’s purpose.
• A signing statement reveals what a president thinks of a law and how it should be enforced.
• A veto threat is the most pervasive effort presidents take to remove objectionable provisions from otherwise acceptable legislation, and the president commits in advance to veto a particular bill if its missing the provisions wanted
• A blame game is a rare scenario when an opposition-controlled Congress will pass the threatened bill in order to elicit the veto and remind voters just where the president stands.

Going Public

• Presidents before the early 20th century satisfied their constitutional obligation (Article II, Section 3) by sending State of the Union (SOTU) to Congress by courier
• An officer of Congress read the address out to inattentive audience
• Now, the SOTU address is a prime-time event where presidents try to mold public opinion and steer legislative agenda on Capitol Hill
• Bush launched “Sixty Stops in Sixty Days” in his 2005 SOTU which was about establishing a grassroots campaign for an overhaul of Social Security
• The SOTU represents the strategy of going public
• Going public is Presidents engaging in intensive public relations to promote themselves and their policies to the voters
• If this succeeds, presidents can indirectly force Congress to support the president’s ideas, as Congress may fear voter’s reprisals
• Supported by extensive television advertising by the Republican National Committee and business groups
• Presidents going public has increased in the past half century
• Presidents spend a lot of time now appealing to the public, increasing the number of speeches and political travel days
• Use of prime-time television is used sparingly, as it is the most dramatic
• The 1960’s and 70’s considered a golden age for television, with only news channels such as NBC, CBS, and ABC were present
• Over time, as the number of channels grew, people had the choice to watch alternative channels
• As a result, the president has started to spend more time making appeals to target constituencies
• As a result, presidents occasionally delivering national televised addresses are shrinking
• Data shows how these minor addresses give presidents a better connection and traction for their communication
• Clinton made many domestic trips to fortify his votes and campaign, specifically those he barely lost or barely won
• Trump seemed to focus more on the appeals to his supporters which did not do much for expanding his support
• He focused more on his social media presence and sent out more than 2500 tweets to about 40 million followers
• Public approval of presidents has become increasingly critical over time, with initial "honeymoon" periods of high approval becoming shorter due to partisan polarization.
• Donald Trump was an exception, beginning his presidency with a historically low approval rating (45%) failing to gain broad public support despite a strong economy.
• Partisan division reached record levels during Trump’s presidency, with a Gallup poll in September 2020 showing only 6% of Democrats approving of his job performance compared to 88% of Republicans.
• Polarized opinions had both advantages and disadvantages for Trump—strong Republican support kept his party aligned but limited his ability to gain wider public backing.
• The White House receives an overwhelming volume of daily correspondence, with Obama’s administration handling 100,000 emails, 10,000 letters, 3,000 phone calls, and 1,000 faxes per day.
• Presidential communication is a two-way process; while presidents share their views with the public, citizens express theirs through voting, letters, emails, calls, and faxes.
• The modern presidency has grown in responsibility, with Congress delegating significant authority to the executive to manage bureaucracy and adapt policies.
• As presidential duties expanded, so has the need for a larger, more complex staff to assist in lobbying, public communication, and administrative functions.

Explore the post-WWI expansion of U.S. federal power and presidential influence. Learn about the growing regulatory role of agencies like USDA, OSHA and EPA. Discover how modern laws delegate broad powers to the president.