Formal sources of presidential power in the US Constitution

Topics on this page

  • How the Constitution sets out the President's formal powers

  • The role of the head of state

  • The role as the head of government-the President is Chief Executive

How the Constitution sets out the President's formal powers

The structure of constitution place Congress first and clearly saw the president to be subordinate to Congress. Congress would make the laws and keep the president in check. The president was not expected to be busy.

But the constitution was flexible and allowed the presidency to develop to the extent that it is now routinely referred to as the most powerful elected office in the world.

The president's powers are nearly all set out in Article 2, and following the principle of checks and balances, the more significant ones are all checked by Congress. In section 2 of Article 2, the powers are:

  • commander-in-chief of the armed forces — Congress has the check of the sole power to declare war

  • to make treaties — Congress has the check of ratification with a two-thirds majority

  • to appoint senior government officials, ambassadors, Supreme Court justices and justices of the lower federal courts — Congress has the check of confirmation

The only powers in section 2 without a congressional check are:

  • · to require in writing the opinion of the principal officer of each of the executive departments

  • · to grant pardons

In section 3 the president's powers are:

· to make the State of the Union speech and recommend legislation 'from time to time' — Congress has the check of rejecting such legislation

  • to take care that the laws 'be faithfully executed' — Congress has the check of the total control of revenue and expenditure

The only powers in section 3 without a congressional check are:

  • to convene extraordinary sessions of Congress

  • to receive ambassadors

The president's only significant power not in Article 2 is detailed in Article 1, section 7, namely the power to approve or veto legislation (although the term 'veto' is not itself used); if the president wishes to veto a bill, he or she has to send the legislation back to Congress with a letter explaining why; Congress has the check of an override, albeit requiring a two-thirds majority in both houses.

The role of the head of state

In the USA the president is also head of state- in the UK the monarch in the head of state. As head of state, the president has diplomatic and ceremonial duties, such as receiving visiting dignitaries and other heads of state, or travelling to other countries to represent the US. The president is often a central focus-point in times of national crisis and it is common for the president to make speeches or visits in relation to national disasters.

As head of state the President receives considerable respect and deference. This allows the president to be seen as a national leader, with the opportunity to direct US policy in both national and international affairs. As soon as the president is inaugurated he or she become the nation's leader and not just the leader of their party. The rise of national media, particularly television, has allowed the president to deliver a US-wide message and exert greater influence over both public opinion and Congress.

In the aftermath of 9/11, President Bush was seen as a symbol of American resolve and pride, taking a strong, tough stance. However, Bush was heavily criticised for not personally visiting areas hit by Hurricane Katrina in 2005, providing evidence of the importance of the symbolic role.

Click above for Atlantic article on Trump's use of executive power.

The role as the head of government-the President is Chief Executive

Article II section 1 of the constitution describes the scope of the president's executive powers in one sentence. It implies a broad range of roles and responsibilities, as well control over the vast machinery of the US governments- departments and agencies.

The Executive Power shall be vested in a President of the United States of America.'

Case Study Gun Control

Does this give the president absolute constitutional control of the executive branch ? As the ultimate decision-maker, the president is able to use the executive branch to pursue his/her political goals and use a complex network of departments and agencies to take control of policy-making and put that policy into practice. But what were the limits on executive authority?

What does this episode suggest?

Early in his presidency, Trump—horrified by the gas attack by Syrian President Bashar al-Assad that killed large numbers of civilians—got on the phone with then Defense Secretary Mattis and declared, “Let’s fucking kill him. Let’s go in. Let’s kill the fucking lot of them.” Mattis agreed and said he would get right on it. When he hung up, however, he said to staff, “We’re not going to do any of that.” The real policy? “We’re going to be much more measured.”

According to the unitary executive reading of the constitution the cabinet (mainly the heads of government departments with the title Secretary) and each of the 15 cabinet departments are under the direction of the president- and they should do as they are told. In addition, the president can utilise the Executive Office of the president (EXOP).

The president can do whatever he wants, which is why he can't. The Atlantic

Harry Truman had 'The buck stops here' displayed on his deck-to remind himself that he had the final say in executive decisions.

One of the strengths of the US unitary presidency is that it's clear who to hold to account- executive power is in the hands of one person not a cabinet.

As head of the executive the president makes approximately 3000 appointments to federal posts. They all 'serve at the president's pleasure'. In other words they are expected to serve the wishes of the president and can be appointed or dismissed by him at any time. Trump has shown that those who displease a him can easily be fired.

As well as being able to use the executive branch to determine government policy, the president can use the executive to influence the rest of the political system, particularly in relation to Congress.

As the head of the executive branch the president has also been entrusted with other critical roles, particularly relating to foreign policy. The president is known as the chief diplomat responsible for relations with other countries, as well as for nominating ambassadors and diplomats. The Constitution also makes the president the commander-in-chief of the armed forces. This clearly gives the president power to direct the military during times of war.

These roles are checked by congress when it comes to funding and declaring war or ratifying treaties but the lack of clarity in the Constitution means that exactly where the balance of power lies is a subject of debate and has led to accusations that president have become too powerful in the area of military action. This has led to major conflict over who has the right to initiate military action. Obama created controversy over extensive bombing in Libya, leading to the downfall of the Gadaffi regime, again without any congressional approval. He followed a long line of presidents who are apparently over-stretching their commander-in-chief powers, including Bill Clinton, who ordered the bombing of Kosovo in1999

An example of the president as Head of State responding to a national tragedy.