The Power of the Presidency in the United States and its Limits

By Ian Howarth

The Constitution of the United States of America under Article two invests in the Presidency, ‘Executive Power’ (US constitution Article 2, Section 1), article two also award’s the office of the presidency with the following positions ‘Head of State, Head of Government, Chief Executive, Leader of the National Party, Chief Diplomat, and Commander in Chief of the Army and Navy’. (US Constitution Article 2, Section 2)obama

The President is therefore the head of the federal government and responsible for the proposal and exclusive execution of federal laws, the appointment of ministers to his cabinet, and of civil servants, and the operation and appointment of hundreds of federal bodies from the FBI to the CIA.   Through these various federal agency’s the President can carry out and enforce federal law with little or no intervention from either Congress or the Supreme Court.  All this power has been invested in the presidency despite the fact that the American constitution was written to ensure that no one single body of government would hold absolute power over the American people, in short to stop the ‘perceived excesses of the British monarchy’. (Heywood, Andrew (1997) Politics, p321, Palgrave: Basingstoke)

The method by which the constitution attempted to achieve this dilution of power is through a separation of powers between the central bodies of the federal government, Congress, the Supreme Court and the Presidency.   As well as these three central bodies of the Federal government there are also the powers held by the state governments, within the offices of the state governors and legislatures.   This separation of powers succeeded in keeping the presidency in check throughout the 19th century with Congress developing and implementing policy when it was needed and leaving the presidency as something of a secondary institution.  ‘However the 20th century saw the development of two key factors that have led to the ascendance of the powers of the presidency, namely the development of a national economy, and the emergence of America as a superpower after the Second World War.  These two developments had the following effects; a national economy meant that the traditional laissez-faire approach had to be abandoned for much more interventionist policies.  The best example of this being President Franklin Roosevelt’s ‘New Deal’ in the 1930’s which not only saw an all-encompassing national economic plan but also the creation of a myriad of new federal agencies under Presidential authority, this had the effect of giving the Presidency the role of Chief Legislator, taking the power from Congress.’ (Heywood, Andrew (1997) Politics, p320-322, Palgrave: Basingstoke)

The emergence of America the superpower and leader of the free world post 1945 also had a dramatic effect on the powers of the presidency, as one of the few areas the constitution had given the presidency freedom of movement was as the Chief Diplomat.  During the 19th century this was of little use while the president led a minor power.   However, the emergence of the USA as the predominant military and economic power after 1945, gave the office of the presidency enormous powers.  This combined with the president’s position as Commander in Chief of the armed forces, and the presidential power to veto all congressional legislation, has meant a substantial growth in the powers of the presidency.  This ultimately led to President’s Johnson and Nixon being able to wage war in Vietnam without congressional approval.

Since Vietnam however there has been some regaining of powers by Congress primarily through the ‘War Powers Act which has sharply impaired the presidents capacity to commit American troops overseas’ (Kennedy, Paul (1988) The Rise and Fall of the Great Powers, p528, Fontana Press: London). At the same time the Supreme Court has grown in importance, becoming a much more political body, and a defender of liberal values against the American right.  This is achieved through the authority given to the Supreme Court by Judicial Review, that is the ability for citizens to challenge all presidential acts in the Supreme Court.   The chief example of the American judiciary exercising power against the will of Congress and to some degree the presidency of Lyndon B. Johnson is the civil rights movement of the 1960’s.  In this case the Supreme Court established the rights of black Americans and upheld the spirit of equality enshrined in the constitution.  Other such cases of broadly ‘liberal’ definitions of the constitution include abortion and IVF treatment, all pushed through by the Supreme Court in the face of an indignant right and in many cases an aggressive presidency.

It is this role that the Supreme Court holds as defender of the constitution and judge over Congressional and Presidential legislation that has been a major inhibitor of presidential power.  Despite the powers of the presidency to appoint the justices, their life long tenure has largely meant that presidents have rarely got their way in the face of opposition from the Supreme Court.

The role of Congress in restraining the powers of the presidency are two-fold, firstly as an institution.  The Senate and the House of Representatives each hold the power to propose and implement legislation and impeach a president. Alongside this is the requirement that all presidential acts be ratified by both houses of Congress. This is combined with the Congressional role of approving or rejecting all presidential federal appointments, and appointments to the Supreme Court.  These powers give the institution of Congress immense strength with which to restrain the presidency.

Secondly is the party political role of Congress, for example the Democratic President Clinton had to contend with a Republican Congress after the 1994 congressional elections. (Heywood, Andrew (1997) Politics, p321, Palgrave: Basingstoke) This meant that for all the dazzling performances of Clinton on the international stage after 1994 he was almost impotent as far as domestic policy was concerned.  A prime example of this can be seen in the Medicare bill, the centre of President Clinton’s attempt to provide a free and uniform access to healthcare for poor Americans, which in the end it was overwhelmingly defeated by the Republican Party in Congress.  However control of ‘the hill’ by a US president is not guaranteed even if their party is in the majority, as President Carter found out in the 1970’s when despite Congress being controlled by the Democrats he faced his legislation repeatedly being thrown out.

Even President’s like Clinton or Carter who retreat into international politics still have to contend with a bipartisan Senate which must ratify all treaties signed by the President before they become law.   We have all seen since George Bush’s presidential victory countless treaties signed by President Clinton being dropped by the new Republican White House.  The Kyoto accord being the best known example of this.  This is largely due to the fact that the Senate never ratified the treaties, because Clinton knew he couldn’t get them through a republican congress.

Therefore despite the massive growth in the powers of the presidency it is important not to overstate them.  The political colour of Congress, and the makeup of the Supreme Court (liberal/conservative) all play a major role in limiting the powers of the US presidency.  We must also not forget to allow for the constitution itself which clearly defines the powers of the presidency.  It does however remain the fact that the powers of the presidency have grown beyond what was initially intended.

The most important ability of the presidency is the power to persuade Congress or the American People that the course of action proposed is the correct one.  This has been facilitated by the growth of the media, giving the president the means by which to put his point straight to the nation on his terms.  This give presidents the ability to go over the heads of Congress and the Supreme Court and appeal directly to public opinion.  This power to influence the national debate has had the effect of making congressmen/women think twice before taking on the president, (they stand for re-election every two years), and Senators desperate to maintain support for the same reason’s despite their longer mandate.  A Congress that appears isolated from the public will face electoral defeat.

The use of the media by Presidents such as Regan, Clinton and Obama can work in the opposite direction.  With continuous twenty four hour scrutiny of the actions and policies of the presidency by not only the national but also the international media, one slip up can lead to a public relations disaster and even the fall of a president.  The Iran-Contra affair, Watergate and Monicagate, are all examples of presidents falling victim to what has been termed the ‘fourth pillar of government’ (Heywood, Andrew (1997) Politics, p321-322, Palgrave: Basingstoke) the media.

Another institutional and constitutional limitation on the presidency is the existence of limited government, which means that the powers of the presidency are limited to those granted to the federal government under the constitution.  This means that the president cannot act on matters which are the sole responsibility of the States.  Therefore only a State Governor can propose legislation to a state congress, and only the state congress can ratify or otherwise that legislation.  Finally there are the constraints of Popular Sovereignty, simply meaning that the presidential term is limited to four years, and a presidential candidate can only stand for election to that office twice.  Which is why President Clinton despite his popularity could not run for nomination in the 2000 presidential race.

The powers of the presidency within the federal government and as the Commander in Chief are considerable.  However, the effects of a strong Congress combined with a weak party political system, loyalty to one’s party is not guaranteed, and the separation of powers guaranteed by the constitution leave the president with little or no power in internal state politics.  This means that the office of the President of the United States is a fairly constrained institution, and with the rare exceptions of a national crisis such as war or economic collapse, it must barter and horse trade with the various other strands of government to achieve legislative success.  While at the same time rigidly observing the constitution or facing the Supreme Court for not doing so.  As President Truman said of his successor President Eisenhower ‘He’ll sit here and he’ll say ‘Do this! Do that!’ and nothing will happen.  Poor Ike – it won’t be a bit like the army.’ (Heywood, Andrew (1997) Politics, p322, Palgrave: Basingstoke)


Heywood, Andrew (1997) Politics, p320, 321,322, Palgrave: Basingstoke

The Constitution of the United States of America Article 2, Section’s 1 & 2:

Kennedy, Paul (1988) The Rise and Fall of the Great Powers, p528, Fontana Press: London