Executive powers are the rights and duties assigned to the executive branch of government and vested in the president under the US Constitution. The President is both the head of state and head of government of the United States of America. Article II, Section 2 of the Constitution grants the president the explicit power to serve as commander-in-chief of US military forces, conduct foreign policy and make treaties, seek advice from a cabinet composed of executive department heads, grant pardons and reprieves to people convicted of federal crimes, and nominate ambassadors, federal judges, and certain other public officials. Article II, Section 3 grants the president the power to receive ambassadors from other nations and convene or adjourn sessions of Congress. This section also describes the president’s duty to execute the laws passed by Congress and to provide periodic reports on the state of the union.
In addition to the president, who serves as chief executive, the executive branch includes the vice president, members of the cabinet, staff, and advisors in the Executive Office of the President (EOP), and employees of various federal departments and independent agencies. As of 2021, the executive branch has more than four million total employees. The Department of Defense (DoD), with more than three million employees, is the largest among the fifteen cabinet-level departments in the executive branch.
STRUCTURE AND FUNCTIONS OF THE EXECUTIVE BRANCH
The EOP consists of the president’s direct staff and closest advisors, including the White House chief of staff, communications director, and press secretary. Entities within the EOP include the Council of Economic Advisers, the National Security Council, the Office of Management and Budget, the Office of National Drug Control Policy, and the Office of the United States Trade Representative. Most of the staff serve at the president’s discretion. Senate confirmation is required for some of the advisers. The vice president, who is an elected official and cannot be dismissed, is expected to assume the presidency in case the president should die, resign, or otherwise be unable to perform official duties. The vice president also serves as president of the US Senate and casts a tie-breaking vote if needed.
The cabinet is an advisory panel made up of the heads of each executive department, including the attorney general (head of the Department of Justice) and the secretaries of agriculture, commerce, defense, education, energy, health and human services, homeland security, housing and urban development, interior, labor, state, transportation, treasury, and veterans’ affairs.
The Framers of the Constitution separated the main functions of the federal government into three branches—executive, legislative, and judicial—and established a system of checks and balances to prevent any one branch from abusing its power. The legislative branch consists of two houses of Congress—the US Senate and the House of Representatives—and has the power to pass laws, make budgets, and impose taxes. The executive branch can restrain this legislative power, however, because the president has the power to sign (approve) or veto (reject) bills passed by Congress.
Faced with a presidential veto, Congress must either rework and resubmit the bill or gather enough support to override the veto with a two-thirds majority vote in both houses. The judicial branch, which includes the US Supreme Court and the federal court system, has the power to determine whether the laws passed by Congress and the policies enacted by the president are legal under the Constitution, which is the supreme law of the United States. The president nominates judges for approval and confirmation by Congress.
Many executive powers are limited by powers granted to the other two branches of government. While the president has the power to conduct diplomacy, receive ambassadors, and sign treaties with foreign nations, for example, no treaty is valid until it receives approval from two-thirds of the Senate.
Similarly, the president’s power to appoint ambassadors, cabinet members, and federal judges is constrained by the Senate’s power to provide “advice and consent” on presidential nominations. Such officials must be confirmed by a majority vote in the Senate. Though the president directs the US armed forces, only Congress has the power to declare war. Finally, the president has the power to issue pardons or offer clemency for offenses against the United States. However this does not apply in cases of impeachment, in which the legislative branch formally charges an official with a crime.
The president can issue executive orders to direct the actions of executive branch officials and agencies, clarify policy decisions and priorities, and provide instructions for the implementation or enforcement of laws. Though the Constitution does not explicitly mention executive orders, they are generally considered a tool for presidents to use in exercising their executive powers.
Executive orders must fall within the powers granted to the president under the Constitution or by federal law. They are subject to judicial review and may be overturned by the courts or invalidated by Congress if the directives exceed the scope of the president’s authority. Critics contend that many presidents have abused executive orders to make significant policy changes without input from Congress.
EXPANDING THE POWERS OF THE CHIEF EXECUTIVE
Executive powers have evolved over time in ways that have tended to expand the role of the executive branch and increase the influence of the president over the federal government. This process began with the seventh president, Andrew Jackson (served 1829–1837), who asserted his authority by vetoing more bills than all of his predecessors combined and prevailing in a high-stakes showdown over whether states had the right to disregard federal laws.
The shift continued under Abraham Lincoln (served 1861–1865), who expanded presidential authority by largely ignoring the wishes of Congress during his prosecution of the Civil War through broad actions like his executive order outlawing slavery in the Confederate states, commonly referred to as the Emancipation Proclamation.
The twenty-sixth president, Theodore Roosevelt (served 1901–1909), issued over one thousand executive orders—nearly as many as all of his predecessors combined—in his efforts to break the monopoly power of large corporate trusts, institute a slate of progressive reforms, and extend federal protection to natural resources.
Franklin D. Roosevelt (served 1933–1945) redefined the role of the executive branch in both domestic and foreign policy. His ambitious New Deal social and economic programs helped combat the Great Depression, while his strong leadership during World War II (1939–1945) helped the United States emerge as a global military power. To achieve these goals, Roosevelt signed more than 3,700 executive orders, created dozens of new federal agencies, and established the EOP. Presidential actions that are viewed as expanding executive powers have often come under criticism, particularly by conservatives who seek to limit the size and role of the federal government.
Several presidents have drawn controversy by making unilateral decisions in wartime. President Harry S. Truman (served 1945–1953), for instance, committed US military forces to the Korean War in 1950 without consulting Congress by describing the conflict as a police action undertaken to enforce a United Nations resolution.
The war cost 36,500 American lives and sent Truman’s public approval rating plummeting to a record low of 22 percent. President Richard Nixon (served 1969–1974) concentrated executive powers within a circle of close advisors and excluded Congress from foreign policy decisions during the Vietnam War (1955–1975). Nixon’s questionable use of presidential authority formed the basis of the second of three articles of impeachment approved by the House Judiciary Committee and contributed to his eventual resignation from office.
The unitary executive theory refers to the idea that the president should have exclusive power over the executive branch. Supporters of the theory contend that the Framers of the Constitution intended for the president to have unilateral powers. Opponents of the theory maintain that it is unconstitutional and violates the powers of the legislative and executive branches of government.
The unitary executive theory was first proposed under President Ronald Reagan (served 1981–1989) and became mainstream during the George W. Bush (served 2001–2009) administration. The theory was used as justification for Bush expanding his executive powers during the war on terror. While President Barack Obama (served 2009–2017) did not openly support the theory, he followed Bush in expanding presidential power.
When a Republican-majority Congress blocked his policy goals, those that addressed climate change and immigration in particular, Obama enacted 560 major new regulations in just his first seven years—50 percent more than his predecessor enacted in eight years—with wide-reaching social and economic impacts. President Donald Trump (served 2017–2021) further pushed the limits of presidential power during his years in office, using executive orders to rescind many of those put in place by Obama. Critics claimed that Trump’s expansion of presidential power was self-serving rather than utilized for policy agendas or public demand.
DIFFERENT APPROACHES TO EXECUTIVE POWER
Trump campaigned as a rule-breaking, unconventional leader, and he disregarded many traditions while in office. He issued several controversial executive orders including a 2017 travel ban that suspended visas for people from several majority-Muslim countries. In 2019 Trump called a national emergency in order to secure border wall funds without support from Congress. Toward the end of his time in office, he used the power of the presidential pardon to grant pardons and commutations for people who worked on his presidential campaign and had not yet been convicted of crimes.
Trump’s approach to the presidency prompted new questions about the limits of the office, such as the power of a president to self-pardon. During the Special Counsel’s Russian probe in 2017, Trump reportedly consulted with his advisors on the president’s legal authority to self-pardon; he also discussed a self-pardon with aides in his final days in office. It’s unclear whether or not US presidents have the constitutional power to self-pardon.
While a 1974 Justice Department memo maintained that self-pardoning conflicts with “the fundamental rule that no one may be a judge in his own case,” the Constitution does not explicitly address the issue. Legal scholars have debated whether or not the courts would recognize a presidential self-pardon. In 2018 the Brennan Center’s National Task Force on Rule of Law and Democracy called for Congress to pass a resolution that condemns presidential self-pardons.
Debate has arisen about whether a president can be charged with a crime. In 2019 William Consovoy, one of Trump’s lawyers, claimed that a sitting president could shoot someone in public and not face prosecution. This claim sparked debate about presidential immunity from criminal and civil prosecution while in office. In July 2020 the Supreme Court ruled that presidents are not immune from prosecution. In Trump v. Vance, District Attorney of the County of New York, et al., the majority opinion read, “In our system of government, as this court has often stated, no one is above the law. That principle applies, of course, to a president.”
President Joe Biden’s (served 2021–) first weeks in office again prompted debate about the use of executive orders to reverse other executive orders. In his first two weeks in office Biden signed a record number of twenty-eight executive orders, surpassing the number signed by any other president within their first month in office other than Franklin D. Roosevelt who signed thirty.
Many of Biden’s executive orders reversed Trump’s executive orders and policies. Biden also exerted his executive authority with proclamations and presidential memoranda. Critics have alleged that Biden has relied too heavily on executive orders in the first months of his presidency. Biden took office in the midst of the novel coronavirus disease (COVID-19) pandemic, a crisis that his supporters argued justified his exertion of executive might.