21.3 Executive Power in the 21st Century
6 min read•july 30, 2024
Executive power in the 21st century has expanded dramatically, especially after 9/11. Presidents now claim broad authority in , often bypassing Congress. This shift raises concerns about checks and balances and the concentration of power in the executive branch.
The growth of executive power impacts domestic and foreign policy. Presidents increasingly use and administrative regulations to shape policy without legislation. This trend challenges traditional notions of and democratic accountability.
Executive Power: Scope and Limits
Constitutional Basis for Executive Power
Top images from around the web for Constitutional Basis for Executive Power
The Division of Powers | American Government View original
Is this image relevant?
The President: Upholding, Implementing, and Enforcing the Law | United States Government View original
Is this image relevant?
The Division of Powers | American Government View original
Is this image relevant?
The President: Upholding, Implementing, and Enforcing the Law | United States Government View original
Is this image relevant?
1 of 2
Top images from around the web for Constitutional Basis for Executive Power
The Division of Powers | American Government View original
Is this image relevant?
The President: Upholding, Implementing, and Enforcing the Law | United States Government View original
Is this image relevant?
The Division of Powers | American Government View original
Is this image relevant?
The President: Upholding, Implementing, and Enforcing the Law | United States Government View original
Is this image relevant?
1 of 2
- The President's executive power is derived from of the Constitution
- Grants the President the authority to execute the laws, serve as Commander-in-Chief of the armed forces, and make treaties with foreign nations
- The President's power to respond to national emergencies and threats to national security has expanded in the 21st century
- Particularly in the aftermath of the September 11th attacks and the subsequent "War on Terror"
- The President has claimed broad authority to use military force, conduct surveillance, and detain individuals suspected of terrorism, often without explicit congressional authorization or judicial oversight
Expansion of Executive Power in Domestic and Foreign Policy
- The use of executive orders, presidential directives, and has become increasingly common
- Used as a means of asserting executive power and shaping policy without legislative action
- Examples include executive actions on immigration (), climate change (Paris Agreement), and healthcare (Affordable Care Act)
- The President's role in domestic policymaking has also grown
- Use of administrative regulations to advance policy goals
- Bypassing Congress and relying on executive branch agencies (EPA, HHS) to implement policies
- The limits on executive power are primarily derived from constitutional principles and specific legal provisions
- Separation of powers and checks and balances aim to prevent concentration of power
- The President's actions are subject to judicial review for constitutionality and compliance with existing laws
- Congress has the power to constrain executive authority through legislation, oversight, and the power of the purse (budget control)
Checks and Balances on Executive Authority
Congressional Checks on Executive Power
- Congress has the power to pass laws that limit or regulate the exercise of executive power
- Example: requires the President to seek congressional approval for the use of military force
- Can also use oversight hearings, investigations, and budget control to constrain executive actions
- The Senate has the power to provide "advice and consent" on presidential appointments and treaties
- Serves as a check on the President's ability to shape the executive branch and conduct foreign policy
- Can block or delay controversial nominees or international agreements
- The House of Representatives has the sole power to initiate impeachment proceedings against the President
- Provides a means of removing a President who abuses their power or violates the law
- Impeachment is a rare and politically charged process (only three presidents have faced impeachment: Andrew Johnson, Bill Clinton, Donald Trump)
Challenges to Effective Checks and Balances
- The effectiveness of these checks and balances has been challenged in the 21st century by several factors:
- Partisan polarization: Divided government and ideological divisions make it harder for Congress to act as a unified check on the executive
- Congressional gridlock: Legislative stalemates and filibuster use can prevent Congress from passing laws to constrain executive power
- Expansion of executive power in response to national security threats: Presidents have claimed broad authority to act unilaterally in the face of terrorism and other emergencies
- The erosion of norms and institutional constraints on executive power has also raised concerns
- Examples include the firing of inspectors general, the politicization of the Department of Justice, and the rejection of requests
- Scholars have debated whether the constitutional system of checks and balances is still functioning effectively in the modern era of expansive executive power
Judicial Interpretation of Executive Power
Supreme Court's Role in Constraining Executive Power
- The Supreme Court has the ultimate authority to determine the constitutionality of executive actions
- Can strike down presidential actions that exceed legal authority or violate individual rights
- Examples: (1952) - Court blocked President Truman's seizure of steel mills during the
- (1974) - Court ordered President Nixon to turn over Watergate tapes, leading to his resignation
- However, the Court has also shown deference to the executive branch in cases involving national security and foreign policy
- Examples: (1944) - Court upheld the internment of Japanese Americans during World War II
- (2018) - Court upheld President Trump's travel ban on several Muslim-majority countries
Lower Courts and Judicial Review of Executive Actions
- Lower federal courts also play a significant role in reviewing executive actions
- Can issue injunctions to block or modify presidential policies that are found to be unlawful or unconstitutional
- Examples include rulings on Trump administration policies related to immigration, asylum, and environmental regulation
- The effectiveness of judicial review as a check on executive power depends on several factors:
- Willingness of courts to assert their authority and rule against the executive branch
- Scope of the legal issues involved and the applicable standards of review
- Compliance of the executive branch with judicial orders and respect for the rule of law
- Critics argue that the judiciary has become increasingly politicized
- Appointment of conservative judges by recent Republican presidents may make courts more likely to uphold expansive claims of executive power
- Raises concerns about the erosion of judicial independence and impartiality
Expanding Executive Power: Implications for Separation of Powers
Concerns about Concentration of Power in the Executive Branch
- The expansion of executive power in the 21st century has raised concerns about the erosion of the separation of powers
- Concentration of power in the executive branch can undermine the checks and balances established by the Constitution
- Makes it more difficult for Congress and the courts to constrain presidential actions
- The use of executive orders, signing statements, and other unilateral actions by the President can bypass the legislative process
- Undermines the role of Congress in making laws and setting policy priorities
- Example: President Obama's use of executive orders to implement immigration policies (DACA) after Congress failed to pass comprehensive reform
Implications for Transparency, Accountability, and Civil Liberties
- The assertion of broad executive authority in areas such as national security and foreign policy can lead to a lack of transparency and accountability
- Potential for human rights abuses and violations of civil liberties
- Example: Bush administration's use of "enhanced interrogation techniques" (torture) on terrorism suspects and the establishment of the Guantanamo Bay detention camp
- The politicization of the Department of Justice and other executive agencies can undermine the rule of law
- Erosion of the impartial administration of justice
- Example: Trump administration's efforts to pressure the DOJ to investigate political opponents and overturn the 2020 election results
Precedents and Proposals for Reform
- The normalization of expansive executive power can set dangerous precedents for future presidents
- Makes it more difficult to restore constitutional limits on presidential authority
- Each successive administration builds upon the claims of executive power made by previous presidents
- Scholars and policymakers have proposed various reforms to strengthen checks and balances and prevent the abuse of executive power:
- Enhancing congressional oversight powers and enforcement mechanisms
- Reforming the war powers framework to require greater legislative involvement in military actions
- Depoliticizing the appointment of executive branch officials and protecting the independence of inspectors general
- Codifying norms and informal constraints on executive power into law
- Ultimately, the preservation of the separation of powers and the rule of law depends on the vigilance of all branches of government and the engagement of an informed citizenry
Key Terms to Review (20)
Article II: Article II of the U.S. Constitution establishes the executive branch of the federal government, outlining the powers, responsibilities, and limitations of the President. This article is crucial for understanding the authority of the President in executing laws, conducting foreign affairs, and serving as Commander-in-Chief of the armed forces, as well as other aspects like executive orders and privileges.
Congressional Oversight: Congressional oversight refers to the power and authority of Congress to monitor and review the actions and policies of the executive branch. This process ensures that the executive is held accountable, allows Congress to evaluate the implementation of laws, and provides a mechanism for investigating any potential misconduct or inefficiencies within the federal government. This oversight function is essential for maintaining the balance of power among the branches of government.
DACA: DACA, or Deferred Action for Childhood Arrivals, is a U.S. immigration policy established in 2012 that allows certain undocumented immigrants who were brought to the country as children to receive renewable two-year work permits and protection from deportation. This policy reflects the executive branch's use of discretion in immigration enforcement and has been a focal point in discussions about the limits of executive power and immigration reform.
Emergency Powers: Emergency powers refer to the special authority granted to government officials, particularly the executive branch, during times of national crisis or emergency. These powers enable leaders to act swiftly and decisively in response to threats, often bypassing normal legislative processes to ensure public safety and security.
Executive orders: Executive orders are directives issued by the President of the United States to manage the operations of the federal government. These orders have the force of law and can be used to implement policies, direct government agencies, or manage resources without the need for congressional approval. They play a significant role in shaping public policy and can affect various aspects of governance, from foreign relations to domestic affairs.
Executive privilege: Executive privilege is the power of the President and other members of the executive branch to withhold information from Congress, the courts, and the public. This privilege is rooted in the need for confidentiality in the executive branch's decision-making process, enabling effective governance while also balancing transparency and accountability.
Federalism: Federalism is a system of government in which power is divided between a central authority and constituent political units, such as states. This division of powers allows for a balance between national interests and local governance, creating a complex relationship that influences the regulation of activities, legal interpretations, and the interaction between different levels of government.
Inherent powers: Inherent powers are the authority and abilities of a government that are not explicitly outlined in the Constitution but are necessary for the government to function effectively and maintain order. These powers often arise from the nature of the state and its responsibilities, such as defending the nation, regulating immigration, and conducting foreign affairs. Inherent powers play a crucial role in understanding the scope of federal authority, especially in the contexts of legislative actions, executive directives, and international agreements.
Korean War: The Korean War was a conflict that lasted from 1950 to 1953 between North Korea, supported by China and the Soviet Union, and South Korea, backed by United Nations forces, primarily from the United States. This war marked a significant moment in Cold War tensions and highlighted the complexities of federalism in foreign affairs and the scope of executive power in wartime decision-making.
Korematsu v. United States: Korematsu v. United States is a landmark Supreme Court case from 1944 that upheld the government's decision to intern Japanese Americans during World War II, based on the claim of national security. This case raises significant questions regarding civil liberties in times of war, the balance between individual rights and governmental powers, and the implications of racial discrimination under the guise of national security. It serves as a pivotal example of judicial interpretation of constitutional rights and the extent of executive power during crises.
National security: National security refers to the protection and preservation of a nation's sovereignty, territorial integrity, and the welfare of its citizens from external threats. This concept encompasses military readiness, intelligence operations, and diplomatic strategies, playing a crucial role in shaping a country's policies and actions. The emphasis on national security can influence executive powers, particularly in times of crisis or conflict, highlighting the balance between authority and civil liberties.
New Deal: The New Deal was a series of programs and reforms implemented by President Franklin D. Roosevelt in response to the Great Depression, aimed at providing relief, recovery, and reform to the American economy and society. It marked a significant expansion of federal government involvement in the economy and introduced various social welfare measures that reshaped the role of the government in addressing economic challenges.
Separation of Powers: Separation of powers is a constitutional principle that divides government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. This framework creates a system of checks and balances, ensuring that power is distributed and preventing any branch from gaining too much authority.
Signing Statements: Signing statements are official pronouncements issued by the President of the United States upon signing a bill into law, often detailing the executive's interpretation of the law and how it will be implemented. These statements can assert the President's intent to enforce certain provisions, ignore others, or raise constitutional objections, playing a significant role in the relationship between the legislative and executive branches.
Take care clause: The take care clause is a provision found in Article II, Section 3 of the U.S. Constitution that mandates the President to 'take Care that the Laws be faithfully executed.' This clause underscores the President's responsibility to enforce and administer federal laws, highlighting the balance of power between the executive branch and other branches of government. It serves as a crucial check on executive authority and implies that the President must uphold the Constitution and laws passed by Congress.
Travel bans: Travel bans are official restrictions imposed by governments that prevent individuals from entering or exiting a country. These bans are often implemented for various reasons, including national security concerns, public health emergencies, or diplomatic relations, and they can significantly affect international movement and relations.
Trump v. Hawaii: Trump v. Hawaii is a landmark Supreme Court case from 2018 that upheld the Trump administration's travel ban targeting several predominantly Muslim countries. The decision is significant as it reflects the balance of executive power and judicial review in the context of national security and immigration policy.
United States v. Nixon: United States v. Nixon was a landmark Supreme Court case in 1974 that addressed the limits of presidential power and the principle of executive privilege. The ruling established that no person, not even the President, is above the law, and affirmed that executive privilege does not grant absolute immunity from judicial process.
War Powers Resolution: The War Powers Resolution is a federal law enacted in 1973 that aims to limit the President's ability to engage U.S. forces in hostilities without congressional approval. This law requires the President to consult with Congress before sending armed forces into combat and mandates that troops must be withdrawn after 60 days unless Congress authorizes their continued presence. The resolution represents a significant check on presidential powers, particularly in relation to military engagement and conflict management.
Youngstown Sheet & Tube Co. v. Sawyer: Youngstown Sheet & Tube Co. v. Sawyer is a landmark Supreme Court case from 1952 that limited the powers of the President of the United States to seize private property without Congressional approval. This case is significant as it clarified the boundaries of executive power, particularly in relation to national security and labor disputes, and showcased the checks and balances inherent in the U.S. government.