The President

The president is in the news more than any other politician. This is true regardless of what he does, or how important he is. It requires only one reporter and one news camera to air a story about the president. Often, the reporter simply stands in front of the White House and merely talks into the camera.

The president is not a king. His powers are limited and enumerated. He lacks a special title, and is called simply “Mr. President.” Under the 22nd Amendment, the president may not be elected more than two terms. In the past 40 years, only two presidents have even served two full terms (Reagan and Clinton).

The president always, however, has enormous political influence. He is the leader of his own political party, which nominates him.. Everything he does affects the positions and fortunes of his party. If his party is in control of Congress, then he exerts enormous influence over Congress. If the opposing political party controls Congress, then it devotes its time to opposing his policies as much as possible. Either way, the president controls the political agenda.

Beyond politics, historians debate how much influence a president really has over the country. But the president is held responsible regardless of whether he is at fault. When Iranian students captured the U.S. Embassy in 1979 and held American diplomats hostage for a year, President Jimmy Carter was held responsible. Was it his fault? Probably not. But voters are going to hold him accountable.

Economists say that the outcome of every presidential election can be predicted by how well the economy is doing on Election Day. Can the president control the economy? Not completely, but he can have an influence. Voters will reelect him if the economy is doing well, and elect someone else if it is doing poorly.

The president does have the power to make appointments, particularly to the judiciary. He nominates new judges, especially those needed to fill vacancies on the Supreme Court. These judges can serve for the rest of their lives, and thus can hold power for over 30 years or more. President Lyndon Johnson left office 35 years ago, yet one of his appointed judges wrote the decision in one of my cases last year (U.S. v. Dr. Sell). Chief Justice Rehnquist was appointed by President Richard Nixon over 30 years ago, and still sits on the Supreme Court.

The president is also commander-in-chief of the military. He controls its operations, and supervises its conflicts with foreign militaries. After Congress declares war (and often when it does not), the president assumes the day-to-day responsibility for conducting that war. President Lyndon Johnson would personally review and make decisions about daily bombing runs in Vietnam. President Lincoln was hiring, firing, and ordering generals during the Civil War.

More generally, the president is responsible for all foreign policy. He appoints the ambassadors, and decides what treaties to negotiate and sign. But 2/3rd approval by the Senate is required for any treaty to become law. The North Atlantic Free Trade Agreement (NAFTA) established so-called “free trade” between the United States and Mexico and Canada. President Clinton bypassed the requirement of Senate approval by arranging for Congress to pass the treaty directly into federal law. Why do you think he did that? (Answer: it only requires a majority to pass a law rather than 2/3 in the Senate to ratify a treaty).

The president also has legislative authority in signing or vetoing new laws. If the president’s political party is in control of Congress, then he has implicit control over its agenda too. The president typically submits a budget each year for Congress to pass in order to pay for the operations of the government and all its programs. Typically Congress will add spending to that budget and include it in one massive bill for the president to sign. An attempt to give the president “line-item veto” authority to strike out certain spending items was held to be unconstitutional.

Appointment Power

Today people view the appointment power of the president as his most important authority. In particular, the president’s ability to fill Supreme Court vacancies and lower federal court positions is the focus of political attention. The president can usually serve only eight years, but a Supreme Court justice can serve 35 years or more.

But a vacancy on the Supreme Court must occur before the president can nominate a new justice. President Carter did not see a single Supreme Court vacancy during his four-year term. He thus made no appointments. President Reagan saw three vacancies, and he appointed Justices O’Connor, Scalia and Kennedy. Instead of Justice Kennedy, President Reagan initially appointed Robert Bork, who was defeated by the Senate. A majority vote in the Senate is necessary to confirm a federal judge to the Supreme Court or lower court. President Reagan also elevated Justice Rehnquist to become Chief Justice when Chief Justice Warren Burger retired, and that promotion was approved by the Senate after some heated debate.

The Senate’s defeat of Reagan’s nomination of Robert Bork to the Supreme Court in 1987 was a watershed, because it was purely political. A majority of senators felt Bork was too conservative, and the attacks and ultimate rejection of his nomination became known as “Borking” a presidential pick. He later wrote a popular book describing the politicization of the judiciary.

President Bush will likely complete his current term without picking a single Supreme Court justice. This is surprising because several vacancies were expected. Chief Justice Rehnquist in particular, nearly 80 years old, was expected to step down so that a Republican president could choose his replacement. It is possible that President Bush talked him out of retiring in the hopes that Republicans will have greater power in the Senate after the 2004 elections, and that Bush will still be in power. This is risky: libreal Justices Brennan and Marshall decided against retiring during President Carter’s term, but then faced 12 long years of Republican control of the White House. Old age forced Justices Brennan and Marshall reluctantly to retire in the meantime, during the first President Bush’s term, and their spots were filled by Justices Souter and Thomas.

Leader of the Executive Branch

The president has complete control over his executive branch, and fills thousands of positions in the numerous federal agencies. Senate approval is required only for a few top positions, such as the Cabinet officials who directly advise the president.

When George Washington was president, there were only three Cabinet officials: State, War (now Defense), and Treasury. As the federal government has expanded, so have the number of positions. President Bush has 15 Cabinet officials. Senate confirmation was required for all of them. Typically the president fills these positions with members of his own party, often those who were recently defeated for Senate, or former governors.

How many of President Bush’s Cabinet members can you name? How many departments under the president can you name?

Foreign Policy

Historically, the State Department has been the most important agency in the Executive Branch, and the Secretary of State has been the most important Cabinet official. Many of our presidents first served as Secretary of State under an earlier president.

Thomas Jefferson first served as Secretary of State under President Washington. James Madison served as Secretary of State under President Jefferson. James Monroe served under President Madison. John Quincy Adams did likewise under President Monroe. And so on.

Who is Secretary of State today? (Colin Powell).

Dealing with foreign countries is a primary responsibility of the President. The Secretary of State advises him on this. When conflicts arise, such as the war in Iraq, the Secretary of Defense advises the president on the military decisions. Currently, the Secretary of Defense is Donald Rumsfeld.

Often the president makes trips to foreign countries to improve our relations with them. Usually those trips boost his popularity at home. Businesses seek to promote good relations with foreign countries in order to increase trade and commerce.

The president has influence over trade with foreign countries. The Commerce Department, created as the Department of Commerce and Labor in 1903 (the Labor Department split off in 1913), is devoted to promoting trade with foreign countries.

Agencies in the Executive Branch handle many types of disputes before they become lawsuits. The Department of Education hears complaints about violation of federal law in public schools; the Department of Labor hears labor disputes, including alleged discrimination; the Department of Health and Human Services handles the massive federal health care spending. Each of the 15 federal agencies, including the new Department of Homeland Security, have responsibilities that grow over time.

Department of Justice

Much attention these days is focused on the fourth oldest department: the Department of Justice. Its head, Attorney General John Ashcroft, was bitterly opposed by liberals from the beginning. The Senate delayed his confirmation and he won in a relatively close vote in early 2001, after Bush became president and appointed him.

The Department of Justice is responsible for handling all prosecutions and litigation for the federal government. Originally, the federal government prosecuted very few crimes. Treason was one. Counterfeiting was another. But not much more.

Now the federal government prosecutes thousands of crimes in all areas of life. Fraud. Accounting deception. Monopolies. Lying to a federal official is a special federal crime. Obstruction of justice is a federal crime, when someone interferes with an investigation. Certain types of murder are now federal crimes. It was the Department of Justice that attempted to break up Microsoft’s monopoly; it is the Department of Justice that is prosecuting Martha Stewart; it is the Department of Justice that is currently investigating a leak from the White House about a CIA agent.

Unlike state prosecutors, federal prosecutors are not elected. They work under the Attorney General, who is appointed by the president. They are called U.S. Attorneys or assistant U.S. Attorneys. State prosecutors are called District Attorneys. The top state prosecutors are elected, and thus directly accountable to the public. When a state prosecution meets with public disapproval, the responsible district attorney can be defeated at the next election. But the president has to be defeated to change the Department of Justice, and presidential elections are typically determined by economic rather than legal issues.

Many are criticizing Attorney General Ashcroft for expanding federal power in investigating and prosecuting alleged terrorists. After 9/11, the Bush Administration sought and achieved new powers to target criminals under the Patriot Act. While all are in favor of catching and prosecuting real terrorists, many oppose the loss of liberty in the War on Terrorism. After all, some say, it is liberty that we are defending against terrorism in the first place.

The main dispute revolves around the Fourth Amendment. The Patriot Act reduced the requirements for federal investigators to seize evidence and tape-record calls of alleged terrorists. No longer must a local judge issue a warrant based on a detailed affidavit of probable cause prior to searches of alleged terrorists, broadly defined. Also, federal investigators can now search certain homes without leaving a copy of a warrant so that the owner knows it has been searched. This is known as “sneak and peak.” There are many newspaper articles discussing this controversy. On Sunday, a pollster said that after 9/11, people wanted to give up some freedoms in this area to stop terrorism, but now over two years later they no longer want to. What do you think?


President Harry S Truman would say, “The buck stops here.” The president is accountable for all that he does, and all that the Executive Branch does while he is in charge. The reelection or defeat of the president after his first term will depend not only on what he does, but also on everything else that happens under his “watch”.

When a president is reelected after serving a full term, which happens about 50% of the time now, he then becomes a “lame duck.” That means he loses power because everyone knows he is merely serving out his term and cannot be reelected again (due to the 22nd Amendment). Still, an effective president can accomplish a great deal during his second term. President Reagan, for example, dramatically cut taxes and made his successful demand that the communists tear down the Berlin Wall dividing communism from freedom in Germany.

A president can be elected with less than 50% of the vote, as President Bush was. But no president can be elected with less than 50% of the electoral college. If no candidate can muster a majority of electoral votes, then the election is decided by the House of Representatives. This occurred in the election of John Quincy Adams, and supporters of Andrew Jackson complained bitterly about the process. Four years later, Jackson beat Adams in a landslide. Can you find the constitutional provision dictating how the House of Representatives can choose the next president?


1. Should we have free trade with China? China is a communist country notorious for requiring abortion, persecuting citizens for religious reasons, and pouring its money into a military that threatens free Chinese on Taiwan and aims missiles at our western cities like Los Angeles. When we buy goods from Communist China, some of that money funds its totalitarian government. Should our government encourage trade with China by granting it “Most Favored Nation” trade status?

2. Attorney General John Ashcroft has been controversial in demanding more federal powers to investigate criminals, including terrorists. Do you think the federal government should have more power in this area?

3. President Bush beat Al Gore in 2000 even though Gore won the popular vote, because Bush won a narrow majority of the electoral college. Is that fair?

Lecture 4 Quiz