Is the Presidency Imperial or Imperilled?

An imperial presidency is one in which the president stretches the Constitution in the exercise of constitutional roles, such as chief executive and commander in chief, and may ignore the wishes of Congress.

The term 'imperial presidency' was used by Arthur Schlesinger Jr in 1973, when he attacked what he viewed as the unconstitutional extension of executive power under President Nixon. Schlesinger argues that presidents wield huge amounts of power with little or no constraints. In particular, he suggests a failure of the constitutional restrictions to restrain the presidency.

Successive presidents have acquired powers that go beyond the intended checks imposed by the Founding Fathers, or such regulations fail to operate. The president can evade constitutional regulations, using a `toolkit' of methods to exert huge power.

Expert Discussion of Imperial Presidency

A short history of the Imperial Presidency (with examples) 

The Impossible Presidency

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

The power of the presidency grew to such an extent in the postwar period that in the early 1970s, Arthur Schlesinger coined the term 'the imperial presidency', suggesting that the president had cast aside the checks and balances of the system, and was now governing like an emperor. The record of the Nixon presidency, which abroad had conducted a secret war in Cambodia, and at home had refused to spend money mandated by Congress, seemed to provide plenty of support for his thesis. However, Nixon's record provoked a fairly swift congressional reaction in the War Powers Act and the Budget and Impoundment Control Act, intended to rein in what were seen as his abuses of the system. Then, only a year after the publication of Schlesinger's book, Nixon resigned in disgrace. The reassertion of Congress was such that Gerald Ford was referring only a few years later to the 'imperilled presidency', and during the 1980s and 1990s Congress carried out its role of presidential checking with sufficient vigour for the debate over any imperial aspirations of the president to largely die away.

Are the president's unilateral  powers evidence of an imperial presidency?

Power Without Persuasion

The president has a number of power which are not subject to checks and do not require the president to exercise his powers of persuasion.

You could certainly make the case that these powers have been used by modern president in ways unintended by the founders and sine they are in effect governing by presidential decree- uncheck by Congress- they are a form of arbitrary power which would characterise an emperor or monarch. Ted Cruz certainly thinks this is the case when Obama used executive orders to amend his health care legislation. Cruz argued that this was a violation of the separation of powers. 

Ted Cruz accused Obama of being an Imperial President because of his use of Executive Orders to reshape his Health Care Law (Obamacare)

The debate revived to some extent during the presidency of George W. Bush:

·    The vice-president Dick Cheney who, as President Ford's chief of staff, had had an insider's view of the 'imperilled presidency', came into office with the explicit intention of strengthening the executive branch. He was quoted in the press as claiming that the period after the Watergate scandal and the Vietnam War was 'the nadir of the modern presidency in terms of authority and legitimacy' and had 'harmed the chief executive's ability to lead in a complicated, dangerous era.'

Unitary Executive Theory 

·    The terrorist attacks of September 2001 led the president to take a series of measures, including the detention of US citizens indefinitely as enemy combatants and a National Security Agency (NSA) surveillance programme of US citizens, which critics claimed operated outside congressional checks and oversight, and even the rule of law.

However, as serious as the concerns over these programmes were, the bigger picture is that they were confined to a narrow range of national security issues and that President Bush's last 2 years in office were conducted as a lame duck with a Democratic Congress. Even on national security, the administration was checked by a succession of Supreme Court cases, such as Hamdan v Rumsfeld, Rasul v Bush and Boumediene v Bush, which held that the military commissions it had created to try Guantanamo Bay detainees were unlawful in the form they were constituted.

The imperilled presidency

The theory of the imperilled presidency suggests that the president is not simply restricted, but is the holder of a weak office, without sufficient power. This contrasting theory to that of an imperial presidency was put forward by former President Gerald Ford. He found that the federal bureaucracy was too big to manage effectively, and complained of the president's lack of control over an increasingly complex executive branch.

The phrase has since been adapted to argue that there are excessive limitations on presidential power, which cause ineffectual political leadership. The rise of polarised parties could be applied to this idea, with a recalcitrant Republican Party proving unwilling to co-operate and compromise with elected Democrat presidents, such as Obama.

'There is nothing more frustrating for a President than to issue an order to a Cabinet officer, and then find that, when the order gets out in the field, it is totally mutilated.'

President Gerald Ford

Problems of control

There are a number of issues that inhibit effective presidential control of the bureaucracy. (US civil Service) First, there are issues that are common to the relationship between all elected politicians and their bureaucracies:

The bureaucracy has experience and expertise in its area of operation which is unlikely to be matched by any elected politician or their personal advisers; it has access to and control of information; and it is made up for the most part of permanent career civil servants who can stall policy change while waiting for a change of administration.

·    A bureaucracy has its own interests which do not coincide with its political masters; it will promote policies which are best able to further its own goals of survival and expansion; and it has limited interest in the overall national interest, or in pursuing policies which threaten the status quo.

·    It is aided in the pursuit of these goals by the nature of legislation which in places will be vague or ambiguous, and the implementation of which requires interpretation by the bureaucracy. Even if it is not always implemented in the narrow interests of the bureaucracy, it may well cause difficulties or embarrassment for the president.

Second, there are more specific issues:

·    Divided loyalties: The bureaucracy is part of the executive branch and its function is to serve the president, but it is dependent on Congress for its continued existence and funding. Congress has the power of oversight of its activities, and to establish, merge or abolish federal departments. In addition, the power of incumbency means members of Congress are likely to be around much longer than the president, so bureaucrats have a strong incentive to pay as much or more attention to the wishes of Congress as to those of the president. Notoriously, the bureaucracy can form alliances with congressional committees and pressure groups to form 'iron triangles' — these work against the public interest in maintaining programmes of benefit to all three points of the triangle but hardly anyone else. However, not even the most lucrative triangle can resist presidential pressure for ever, and one such came to an end with the cancellation of the F22 fighter programme by the Obama administration in 2009.

·Lack of coordination: Multiple agencies, for example, have a stake in foreign policy: the State Department, the Defense Department, the NSC and the CIA, to name just some of the most prominent. All have different priorities and sometimes pull in different directions. In particular, there is a long history of tension between State and Defense Departments, which was highly visible, for example, during the first term of the Bush presidency in the rivalry between secretaries Powell and Rumsfeld.

Executive order

What is it? The president can instruct the executive branch to carry out/not carry out certain practices without consulting Congress. This could be seen as effectively creating new policy without the need for a congressional vote.

Evidence Immigration, including Obama policies on DAPA and DACA and Trump's 2017 executive order banning immigration from seven specified countries. In 2001 Bush signed an executive order that allowed the creation of military tribunals in language that covered the detention, treatment and trial of non-US citizens involved in terrorism, leading to the creation of the Guantanamo detention camp.

Limits The scope of these orders is limited. In theory the president cannot pass new laws but only enforce existing ones or use his/her power to govern the executive branch. Obama's planned extension of DAPA and DACA was halted by a court ruling in 2016, as was Trump's immigration executive order in 2017.

Signing statement

What is it? A statement written and signed by the president at the same time as signing a piece of legislation. When signing a bill the president may state that they will not enforce certain sections (for example, because they deem them to be unconstitutional). This gives the president the

power to effectively hold a line-item veto, allowing them to strike out individual lines of a bill. The Supreme Court has declared the line-item veto unconstitutional in Clinton v New York 1998, stating that a president can either accept or reject a whole bill only. Many signing statements (or parts of them) have limited constitutional significance.

Evidence In 2014, Obama signed the National Defense Authorization Act, which contained a clause requiring the Defense Secretary to notify congressional committees at least 30 days before moving someone from Guantanamo Bay. Obama issued a signing statement rejecting congressional authority here. Obama did not comply with the act when he secretly traded a captured US solider, Bowe Bergdahl, for five Taliban members detained at Guantanamo.

Limits The president can issue such words but may find it difficult to actually bring about any change. For most laws, such as budget agreements, there is little a president can do with a signing statement. Also, a signing statement is only words on a page. Congress may insist on the laws it has passed, and the Supreme Court could force the president to follow the intentions of congressional law. Future (and current) presidents are not obliged to follow suit. Obama signed a statement saying he would not use drone strikes to kill US citizens in the US, even though he signed a law permitting it. There is no reason why President Trump needs to follow this interpretation of the law in existence.

Executive agreement

What is it? A piece of constitutional magic conjured up by the president in making an agreement with another country. This agreement does not require Senate ratification. This could be seen

as replacing treaties and allowing the president to bypass traditional constitutional relations to achieve foreign-policy goals. It is the president who decides what is a treaty and what is simply an `agreement'.

Examples Obama's Iran deal in 2015, agreeing on lifting some trade embargoes and freezing Iranian assets in return for Iranian efforts to end their aims to be a military nuclear power; 2015 China environment deal, negotiated in secret, agreeing to US and Chinese attempts to reduce CO2 emissions.