Presidential Powers: Inherent Powers, Unilateral Actions, and Executive Orders, Slides of Political Science

Download Presidential Powers: Inherent Powers, Unilateral Actions, and Executive Orders and more Slides Political Science in PDF only on Docsity! UNILATERAL POWERS AND THE MIDTERMS Professor Sharece Thrower Department of Political Science Vanderbilt University Osher Lifelong Learning Institute Elections 2018 – The Midterms October 31, 2018 Trump Targets Birthright Citizenship with Executive Order Constitutional Sources of Presidential Power 1. Expressed Powers 2. Inherent Powers 3. Delegated Powers Sources of Presidential Power Expressed Powers: Granted specifically by Article II of Constitution 1. Military (Article II, Section 2) 2. Judicial (Article II, Section 2) 3. Diplomatic (Article II, Section 3) 4. Executive (Article II, Section 3) 5. Legislative (Article I, Section 7 and Article II, Section 3) 1. Military (Article II, Section 2) “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States” 4. Executive (Article II, Sections 2 and 3) “…and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States…” “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session” “…he shall take Care the Laws be faithfully executed…” 5. Legislative (Article I, Section 7 and Article II, Section 3) “Every Bill…before it become a Law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it…” “If any Bill shall not be returned by the President within ten Days…the Same shall be a Law” “He shall from time to time give to the Congress information of the State of the Union and recommend to their consideration such Measures as he shall judge necessary and expedient” Sources of Presidential Power Delegated Powers: Granted to the president or executive branch by congressional statute Examples: • War powers • Executive Agreements • Unilateral Actions – e.g. executive orders, signing statements Greater reliance on the unitary executive theory What is the Unitary Executive Theory? The Unitary Executive Theory • The president has the sole responsibility over executive branch • Congress does not have the right to limit the president’s power What are unilateral actions? Unilateral Actions Unilateral Action: Any formal action of the president designed to influence policy that is performed outside of the traditional legislative process. Unilateral Directive: A written statement or order issued by the president (designed to influence policy) that is directed towards agencies, other government officials, or those outside of government and is performed outside of the traditional legislative process. Unilateral Actions • Unilateral directives are a subset of unilateral actions, but these terms are often used interchangeably (along with “unilateral powers”) • These unilateral powers are justified with the unitary executive theory • They are considered inherent powers, derived from Article II of the Constitution Executive Orders (EOs) An executive order is a unilateral directive issued by the president to executive branch officials and agencies, providing instruction on how to implement the law. Functions: 1. Ceremonial duties 2. Interpretation of the law 3. Policy initiatives 4. Response to economic crises 5. Response to international crises 6. Centralization of agency rulemaking Ceremonial Duties This can include: • Creation of seals, flags, or medals • Executive branch maintenance (e.g. holidays, days off or half days, salary increases) Example: EO 9586 – “Medal of Freedom” “There is hereby established a medal known to be the Medal of Freedom with accompanying ribbons…” - Harry Truman, July 6, 1945 Creation of Policy Initiatives EO 11249 – Equal Employment Opportunity (Lyndon Johnson, September 24, 1965) “All Government contracting agencies shall include in every Government contract hereafter entered into the following provisions…The Secretary of Labor shall be responsible for the administration and enforcement of…this Order” Response to Economic Crises EO 11615 – Providing for the Stabilization of Prices, Rents, Wages, and Salaries (Richard Nixon, August 15, 1971) “Prices, rents, wages, and salaries shall be stabilized for a period of 90 days from the date not greater than the highest of…Each person engaged in the business of selling or providing commodities or services shall maintain available for public inspection a record of the highest prices or rents…” Response to International Crises E.g. – Carter issued a series of executive orders during the Iran Hostage Crisis (from 1979 – 1981), placing sanctions on Iran and assisting in the final days of the crisis in releasing the hostages. “I hereby order all blocked property and interests in property of the Government of Iran, its instrumentalities and controlled entities and the Central Bank of Iran which are or become subject to the jurisdiction of the United States…” Interpretation of the Law • EOs instruct agencies on how to interpret the law • Interpretation of vague or ambiguous statutes • Expansion of authority Example: Drug Shortage Crisis in the United States 0 50 100 150 200 250 2005 2006 2007 2008 2009 2010 2011 61 56 90 110 157 178 250 Number of Drug Shortages, by Year “A growing shortage of important chemotherapy drugs, anesthetics and antibiotics, which has compromised or delayed care for some US patients and have led to at least 15 deaths, represents a ‘pressing public health problem,’ a top federal health official said today.” -ABC World News (Sept. 2011) Shortages due to manufacturers suddenly discontinuing the production of these critical drugs without advanced notice. Source: Food and Drug Administration. “Six Month Check Up: FDA’s Work on Shortages.” The Drug Shortage Crisis and FDA Authority • Food and Drug Administration (FDA) does not have enough authority under the Food, Drug, and Cosmetic Act (FDCA) to enforce prior notification “‘Right now we just don’t have any authority at all to require companies to increase production or require other firms to come on the market,’ [FDA associate director] Jensen says. FDA also can’t require firms to continue making a drug, and drug makers aren’t required to report shortages or discontinuances…” – Daily Finance (Jan. 2011) Presidential Response to the Drug Shortage Crisis • On October 31, 2011, Obama issued Executive Order (EO) 13588 • More broadly interpreting FDCA reporting requirement • Allowing FDA enforcement authority “…the FDA shall use all appropriate administrative tools to interpret and administer the reporting requirement in 21 U.S.C. 356c, to require drug manufacturers to provide adequate advance notice of manufacturing discontinuance that could lead to shortages of drugs that are life supporting or life sustaining, or that prevent debilitating disease.” – Obama, EO 13588 —K Implications of Executive Orders Myth #1: Presidents (especially the most recent ones) have increasingly issued more EOs over time. Number of Executive Orders, 1820 – 2017 0 100 200 300 400 500 600 700 800 900 1000 1 8 2 0 1 8 2 4 1 8 2 8 1 8 3 2 1 8 3 6 1 8 4 0 1 8 4 4 1 8 4 8 1 8 5 2 1 8 5 6 1 8 6 0 1 8 6 4 1 8 6 8 1 8 7 2 1 8 7 6 1 8 8 0 1 8 8 4 1 8 8 8 1 8 9 2 1 8 9 6 1 9 0 0 1 9 0 4 1 9 0 8 1 9 1 2 1 9 1 6 1 9 2 0 1 9 2 4 1 9 2 8 1 9 3 2 1 9 3 6 1 9 4 0 1 9 4 4 1 9 4 8 1 9 5 2 1 9 5 6 1 9 6 0 1 9 6 4 1 9 6 8 1 9 7 2 1 9 7 6 1 9 8 0 1 9 8 4 1 9 8 8 1 9 9 2 1 9 9 6 2 0 0 0 2 0 0 4 2 0 0 8 2 0 1 2 2 0 1 6 Myth 2: Presidents issue more EOs under divided government than under unified government aa Pe An Unconstrained President? aay Ea SUR TEC Ug Rae eae = Qype re seit execitine ORDER STARING \ -ous® \ efor eines) F ANTE Sled! nl a € Bee eel ad e | EXECUTIVE | e @ eid ET No matter how you see it we have cs os AN IMPERIAL PRESIDENT hy “While much of the items on President Obama’s wish list appear dead or stalled in Congress, Obama could still cement his legacy on one of his key issues by use of executive orders and bypassing the legislative branch.” -US Finance Post “But should the GOP stand in the way, the president indicated he’s willing to use executive orders to accomplish his aims.” -The Washington Times Average Number of EOs under Unified v. Divided Government, 1945 - 2017 0 10 20 30 40 50 60 70 80 Divided Gov't Unified Gov't 50 73 Why Do Presidents Exercise Restraint? • Ways Congress can punish the president: • Defunding programs • Block president’s legislative agenda • Confirmation process • Oversight • Limiting Why Do Presidents Exercise Restraint? • Executive actions based on discretion • i.e. leeway given to president and agencies by Congress to implement the law • Courts can overturn or uphold executive actions based on discretion • Youngstown v. Sawyer (1952) • Trump v. Hawaii (2018) Why Differences During the Term? • Early in term: • Active agenda • Policy reversals • Middle in term: • Loss of seats in Congress • Declining approval • Late in term: • Lame duck • Legacy Early in Presidential Term Immigration Reform • Travel ban (EO 13769, 1/27/2017) • Struck down by federal courts • Revised travel ban (EO 13780, 3/6/2017) • Revokes previous order, revises content • Struck down by federal courts • Federal funding cuts to sanctuary cities (EO 13768, 1/25/2017) • Blocked by federal court • Orders agencies to look into building the wall (EO 13767, 1/25/2017) • Still needs congressional funding Ways to Change Executive Orders • Revoke – nullifies legal status of order; reverts policy back to status quo • Amend – alters content of order, which remains part of the law; small to large shifts in status quo • Supersede – suspends the legal status of an order; small or large shifts in the status quo Average # of EOs Revoked, Amended, and Superseded by Presidents in their First Year 0 5 10 15 20 25 30 Reagan H.W. Bush Clinton W. Bush Obama Trump Revoke Amend Suspend Examples of Policy Revisions • Repealed flood readiness requirements for infrastructure projects (EO 13807; 8/15/2017) • Repealed labor law requirements for gov’t contracts (EO 13782; 3/27/2017) • Revokes climate change executive actions (EO 13783; 3/28/2017) a 44 Democrats * "6. Republicans 50 p | Ea | Ree) EI 4 6 o hd 51 Seats Needed For Majority (Create Your Own Map) PA: Casey (D) MI: Stabenow (D) ‘AZ: Open (R) TN: Open (R) MS2: Hyde-Smith (R) OH: Brown (D) MN2: Smith (D) FL: Nelson (D) TX: Cruz (R) ND: Hettkamp (D) WV: Manchin (D) Nu: Menendez (D) Safe GOP Seats Safe Dam Seats WI: Baldwin (D) MO: McCaskill (D) MT: Tester (D) NV: Heller (R) DEMOCRATS: REPUBLICANS Battle for the Senate, 2018 mist Fite _ |e _ Fmt WP ick-ups: @™ Pick-ups (ND) Source: realclearpolitics.com * Sen. Bernie Sanders (I-VT) and Sen. Angus King (I-ME) currently caucus with the Democrats. Current Senate: 49* Democrats | 51 Republicans  204 Democrats 32 Republicans 199 m2 1 146 2 rm 2118 Seats Needed For Majority (Recent Race Changes) TE Ea Ma CAM FLISCAZT SCD CAMO GAD OASDSCARDSSCCAG]SCFLSG~SSCKALSS SARA i WH?MESs cass MMS GMB. Gae=Ssn?Ss tas. Gaat ca wut NWS onia asus For ‘aster ORGS oes pas pes NT eZ... ito Pheer WSN BR? we Wig) NE NYT ORY NCB OD ino WNT MAL =oNC? vary? Wis ‘Wr NM®Pto tea APP Scr Ws Wve ONY WAR WAS Waa we oer Ws Qo Um vas var WA X % Battle for the House, 2018 Source: realclearpolitics.com WLikely Hl Lecns Toss up MllLikely Hl Leans MllToss up  Presidential Approval 100% —S Truman— Eisenhower - Kennedy-Johnson- Nixon — Ford - Carter- Reagan — H.W. Bush — Clinton — W. Bush — 80 70 WM 5 40 ‘5 0 85 a5 => => 30 a a l ‘50 | | ! 95 «2000 = ‘05 Source: The Wall Street Journal Summary: Predictions after Midterms • President will lose seats • Shift to divided gov’t • Decline in public approval • Less push for new policy agenda • Decrease in EOs • Increase in other unilateral actions? Presidential Memoranda • Written pronouncements directed at executive branch or White House officials • Unilateral directive, with similar functions as executive order • Gives specific instructions • Initiate policy processes • Establish WH offices and taskforces • Often used in conjunction with EOs Memoranda v. Executive Orders Executive Orders • Viewed as legally valid by the courts • Must be published in the Federal Register, mandated by the law • Generally used for larger policy purposes • More well known Memoranda • Does not have the same legal status as EOs • President decides whether to publish them in FR • Generally used for more perfunctory purposes • Less well known Average Number of Memoranda, 1945 - 2017 30 31 32 33 34 35 36 Divided Gov't Unified Gov't 36 32 Avg. Memos Executive Orders and Memoranda by Presidents in their First Year Reagan H.W. Bush Clinton W. Bush Obama Trump N u m b er o f D ir ec ti v es 0 1 0 2 0 3 0 4 0 5 0 EOs Memos Government and Regulatory Reform • Explore ways to streamline regulations (1/24/2017) • Federal hiring freeze (1/23/2017) • Reorganize National and Homeland Security Councils (1/28/2017; 4/4/2017) • Review fiduciary rule (2/3/2017) Proclamation A proclamation is a directive issued by the president that declares the law, states a condition, recognizes an event, or calls for obedience or response. While executive orders are directed at government officials and agencies, proclamations are directed at those outside of government. Proclamations are also seen as legally valid policy tools by the courts. Citizenship EO: Why now? • Congressional support? • Mobilize conservative base? • Unintended consequences: • Mobilize liberal base • GOP opposition • Attention to constitutional problems