Power without Persuasion: Ways around Congress

Signing statements are official documents in which the president gives his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. They became a particular source of controversy during the presidency of George W. Bush. The president repeatedly asserted his right to ignore those sections of bills which, in his view, unconstitutionally infringed his authority as president. In his statement on the amendment initiated by Senator John McCain banning the torture of suspected terrorists, the president undertook to implement it '...in a manner consistent with the constitutional authority of the president', which was widely taken to mean that it would not be implemented at all.

Candidate Obama was critical of President Bush's use of signing statements during the 2008 campaign and publicly pledged not to use them himself. However, as early as August 2009 congressional Democrats wrote to the president, complaining about his use of a signing statement in which he signalled his intention to disregard part of a bill requiring him to negotiate in particular directions with the IMF and World Bank. There has been a succession of similar stories subsequently, most recently in January 2013 when a bipartisan group of senators protested that the president's signing statement attached to the National Defense Authorisation Act undermined the protection of whistle-blowers.

Signing statements have been characterised by some as a 'stealth veto', used instead of a formal veto, and as such would be relevant in an answer on the presidential veto

They have been able to do so primarily because the ambiguity of Article II gave them enough flexibility and room for manoeuvre. One can only guess whether or not the Founding Fathers deliberately intended future presidents to strengthen the scope of presidential power once the immediate arguments over the Constitution had been forgotten; never-the-less, the narrow range of executive powers enumerated in the Constitution serves as an inadequate guide to what contemporary presidents do in office and how they are able to do it.

The president has a variety of means he can adopt to work round any obstruction he encounters in Congress.

William G Howell in Power Without Persuasion argues that Presidents have far more scope to set the political agenda and for the exercise of unilateral power than is suggested by Neustadt’s famous ‘Power to Persuade’ model.

Recess appointments

The president can avoid the need for the Senate's confirmation of appointments by making a recess appointment. They are by no means a complete solution, since they only last for the life of the Congress, i.e. a maximum of 2 years and probably less, but the president can make a recess appointment in the hope that the next elections will result in a Congress more favourably disposed to his nominee. The increasingly bitter partisanship in Washington has made the use of recess appointments controversial, and Senate Republicans have tried to prevent President Obama from making any at all by holding continuous pro-forma sessions — sessions when no business is actually conducted — when the Senate is not in 'active' session, meaning it is technically almost never in recess. In January 2012, the president decided to make four recess appointments anyway (including the head of the new Consumer Financial Protection Bureau) despite the Senate being in pro-forma session. A year later, in January 2013, the DC Circuit Court of Appeal ruled that, in so doing, the president had exceeded his constitutional powers. The Supreme Court announced in June 2013 that it will adjudicate on this ruling.

White House appointments

Appointments to the White House staff do not require Senate confirmation and some so-called 'czars' exercise more influence than their equivalent in the cabinet.List of policy czars

Executive orders

Executive orders are directives aimed at the federal bureaucracy, and give guidance on the implementation of laws passed by Congress. They are not explicitly defined (or in fact mentioned at all) in the constitution and the legitimate extent of their use is unclear; critics complain that they often amount to the creation of new policy. More usually, they concern routine matters, but they can be in controversial or significant areas of policy. President Clinton, for example, lifted the ban on gay people in the military through executive order, and President Bush imposed restrictions on stemcell research, which lasted until President Obama lifted them through the same means. Executive orders are a potent instrument. Unlike legislative proposals, if the president acts unilaterally, in the absence of a congressional or judicial response, the order assumes the status of law. Both responses do occur, but congressional legislation is difficult to pass and the judiciary typically defers to the president. However, if an order requires appropriations, Congress can introduce amendments and restrictions and, ultimately though rarely, executive orders can be successfully challenged in the courts, as happened to President Truman's order nationalising the steel mills in Youngstown v Sawyer.Obama Excecutive Order off shore drilling

So just how effective are Executive Orders? The answer is -it depends. An administrative order like Bush's restriction on Stem Cell reseach could be easily over turned by Obama, but if the executive order is enacting a congressional law it may require passage of a bill through Congess to overturn the executive order. Thsi is what Obama hope will be the case with his ban on off shore drilling. Trump may need Congress to reverse this and that is never easy. Justice Robert Jackson famously observed: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”

Executive agreements

Executive agreements with other countries can be used instead of treaties. The cumbersome and demanding requirements for treaty ratification mean that agreements are used far more extensively than treaties, especially after the Second World War when America's influence spread round the globe. More than 2,800 executive agreements were made in the Reagan administration alone. Attempts to rein in the use of executive agreements have been largely unsuccessful; two Supreme Court cases, United States v Belmont (1937) and United States v Pink (1942) upheld the right of the president to make executive agreements and, although the Case-Zablocki Act 1972 required the Secretary of State to report to Congress any international agreement made other than by treaty within 60 days, virtually every subsequent presidency has circumvented its requirements. However, executive agreements are not binding on succeeding administrations, so significant change with long-term consequences still requires a full treaty.Obama has completed far fewer treaties than his predecessors. The use of executive agreements, the alternative to treaties, has continued apace. The change is partly a result of polarization in the Senate, which increases the president’s reliance upon unilateral authority. So will Trump reverse the Paris Accords or the Iran nuclear deal ? This will depend political constraints-Trump would not have made either of these agreements but will the political cost in time, criticism in the media and from abroad, deter him?New York Times: Will Trump end the Iran deal ?