Powers of the President: Formal and Informal Powers Explained

Powers/Roles of the President

The U.S. Constitution provides the President limited power and the executive shares power with the U.S. Congress. The President and Congress will share power in such areas as the making of law and treaties, Presidential appointments, and war. This has often caused tension between these two branches of government. We will look at this area of shared power in more detail later on in the lesson.

First of all, you need to understand that while the U.S. Congress has “legislative power”, the President has:

“executive power” – – power to carry out and enforce the law (See Article II, section 1, U.S. Constitution)

Once the U.S. Congress passes a piece of legislation and the President signs the bill into law, the President must:

carry out the new federal program (such as, the Medicare Prescription Drug Program for Seniors);

ensure that the law is enforced when individuals violate the law.

Shown in the image is President Trump signing an order related to the Keystone Pipeline.

Executive power also provides the President with emergency power s and this gives the President the ability to take action to address a crisis. For example, during World War II, President Roosevelt ordered certain businesses to produce products for the war effort.

The express powers and duties of the President are outlined in the U.S. Constitution in Article II, sections II and III and in Article I, section 7 (veto power) (See U.S. Constitution).

Let us examine some of the powers of the President.

Commander-in-Chief

The U.S. Constitution makes the President :

Commander-in-Chief of all the armed forces, including the states’ National Guard when called up for service by the President. (See Article II, section 2, U.S. Constitution)

The President does not “declare war”; however, he can “make war” or conduct military operations with the assistance of his Secretary of Defense. Generally, the U.S. Congress will declare war and the President will wage the war. The U.S. Congress will provide the funding for the military operations.

However, since World War II, Presidents have sent troops to engage in military missions abroad without a formal declaration of war by the U.S. Congress . The President, if his believes that U.S. national security or the security of our allies is threatened, can send troops to engage in military operations abroad. He does not need to ask the permission of the U.S. Congress to do so. He is fully acting within his power as Commander-in-Chief . However, when a President believes it is necessary to put U.S. troops in harms way, he will most often notify the U.S. Congress within forty-eight (48) hours as required under the War Power Resolution of 1973 .

Did the U.S. Congress declare war on terrorists after 9/11 or when the President sent troops to Iraq?

The President’s power to engage troops in military missions abroad can be checked by the U.S. Congress . As mentioned above, Congress can simply stop funding military operations and the troops will have to come home. The U.S. Congress, at the end of the Vietnam War, worked to limit the President’s authority to engage in military missions abroad without a Congressional declaration of war. It passed the War Power Resolution of 1973 that outlines when a President can commit troops and requires that if a President sends troops abroad, that they must be brought home within 60 days if the U.S. Congress does not authorize the military mission.

Note: No President has recognized the constitutionality of the War Powers Resolution, although they do comply with the law’s notification requirements.

Pardon Power

Under the U.S. Constitution , the President can:

exercise his pardon power ( See Article II, section 2 ) and pardon those individuals who have committed federal, not state, crimes.

Through this power, the President can wipe a convicted felon’s record clean or he can even use it if an individual has not been convicted of a federal crime, as in the case of President Ford pardoning former President Richard Nixon. Nixon had not been charged of any crime before Ford pardoned him. It was very controversial, this use of the pardon power; however, it is important to understand that the President’s choice of whom to pardon can not be challenged in the courts.

What is not permissible is that there be a “quid pro quo” involved in securing the pardon. Currently, there is an Grand Jury meeting in New York investigating whether or not there were favors given or promises made to individuals who were pardoned or failed to be pardoned by former President Clinton.

Most often, the pardon power is used by the government to show mercy and once an individual has served time and demonstrated that he has taken steps to rehabilitate himself, the convicted felon can request a pardon.

Did former President Bill Clinton pardon a fugitive from the law?

Did former President Bush pardon Scooter Libby?

A President can not exercise the pardon power where an individual has gone through the impeachment process and has been “convicted and removed” from public office. There was a question, during Clinton’s impeachment trial of whether or not, if the President knew that he would be convicted by the U.S. Senate of an impeachable offense(s), would he be able to pardon himself right before the vote – – before he was removed from office.

This remains a question to be addressed by constitutional scholars and the courts. What we do know is that if he had been charged by the U.S. Justice Department with perjury in giving a civil deposition in the Paula Jones’ sexual harassment case, that President G. W. Bush would have had the power to pardon Clinton. But would Bush have pardoned Clinton – – who knows? There was discussion among the “talking heads” in the media that he might have pardoned the former President.

Power to Negotiate Treaties

A power that the President shares with the U.S. Congress is in the area of treaty making. Article II, section 2 states:

“the President shall “have the power by and with the Advice and Consent of the Senate to make Treaties provided that two-thirds of the Senate present concur” (U.S. Constitution).

As discussed in the Lessons on the U.S. Congress,the President can negotiate a treaty – – a formal agreement between two or more sovereign nations, but the U.S. Senate must review the terms of the treaty and provide 2/3rds support for it to have the force of law.

There are other types of international agreements that are negotiated by the President, known as executive agreements that do not require 2/3rds vote of support by the U.S. Senate . Some executive agreements only need majority support in both houses, such as, international trade agreements like the North American Free Trade Agreement (NAFTA) or the Central American Free Trade Agreement (CAFTA). Executive agreements were found constitutional by the U.S. Supreme Court in 1937 and have been entered into since President George Washington’s Administration.

Shown here is President Jimmy Carter is flanked by Israeli Prime Minister Menachem Begin and Egyptian President Anwar Sadat after signing the Camp David Accords September 17, 1978.

After Russia invaded Ukraine on February 24, 2022, Finland and Sweden sought admission to the North Atlantic Treaty Organization (NATO), with Finland joining NATO in 2023 and Sweden most recently in March 7, 2024. NATO was founded on April 4, 1949 and the North Atlanta Treaty was signed in Washington, D. C. with the United States as a signatory to the treaty. With Sweden’s admission to NATO, there are 32 members of NATO. NATO will celebrate its 75th Anniversary in Washington, D. C. in the summer 2024. To read President Biden’s statement on Sweden’s admission to NATO, go to: Statement from President Joe Biden Welcoming Sweden to NATO | The White House .

Appointment Power

Another power shared with the U.S. Congress, as mentioned earlier, is the President’s appointment power . Article II, section 2, also states that

“by and with the Advice and Consent of the Senate, [the President} shall appoint Ambassadors, other public Ministers and Consuls, judges of the [S]upreme Court, and other Officers of the United States” (U.S. Constitution).

Presidents can choose whom they wish — individuals who share their views to head up the Executive or Cabinet level Departments and federal agencies ; however, the U.S. Senate must determine if they are qualified to fill the office. The President can nominate individuals who share his judicial philosophy to sit on the federal bench – – lower federal courts or U.S. Supreme Court as well as individuals who would serve as U.S. Ambassadors , like former Congressman Tony Hall (D-OH), to head up the U.S. Mission to the U.N. Agency on Food and Agriculture in Rome.

One of President Trump’s nominees, Rex Tillerson, is shown at his swearing in.

Is President Obama’s use of his

“Recess Appointment” power

constitutional?

Didn’t former President Bush have

problems getting some of his judicial

nominees confirmed by the U.S. Senate?

Veto Power

A power of the President not found in Article II of the U.S Constitution, but in Article I, section 7 is the President’s veto power. The framers of the U.S. Constitution wanted the President to have a role in the legislative process – -lawmaking process.

When the U.S. Congress passes a piece of federal legislation, the bill is sent to the President’s desk. The President can either sign the bill into law or he can veto it – – “reject” the bill and send it back , as the U.S. Constitution requires, where the bill was first introduced. He generally sends a “veto message” to the members of Congress explaining his reasons for vetoing the bill. He may simply believe a part of the bill or the entire bill is not in the best interest of the American people. The U.S. Congress can override the President’s veto with 2/3rds vote in each house of Congress. The bill would upon the U.S. Congress’s action, become law.

Are veto overrides rare or is it easy

to override a President’s veto?

As the U.S. Constitution states he has 10 days to sign the bill (except Sundays) and if he fails to act, the bill becomes law without his signature .

Wait a minute! Why would a

President wait until the time had

passed and let a bill become a law?

If the U.S. Congress adjourns sometime in that 10-day period – -goes home – – the bill dies . This is known as a pocket veto.