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Presidents and Unilateral Powers over Domestic Policy Note to students: The best preparation for taking the reading quiz is to pay close attention to the key terms as you read. Each question in the question banks is directly linked to these key terms and phrases.

Chapter Focus Question: How do the president's unilateral powers exercise a check and balance on the other branches of government?

Section Focus Question: What is an executive power? Examples?Key Terms:Executive Order 9981

Unconstitutional executive orders Executive order as a unilateral power Presidents and the number of their executive orders Overturning an executive order

Presidents exercise unilateral power when they make substantive changes to public policy without the formal approval of other branches of government. Unilateral power means that policy changes because the president wants it to, even if a majority of Congress might not..

Unilateral power is not explicitly granted to the president by the Constitution, at least not in domestic policy. In foreign policy and defense, the Constitution does name the president as “Commander in Chief” of the US armed forces, but this power is checked by Congress’s right to determine the size and funding of the military. And the president has the right to negotiate treaties with foreign governments — but subject to Senate approval. So even here, unilateral powers of the president are highly qualified. In domestic policy, the Constitution does not explicitly grant even these modest powers to the president.

But the Constitution does name the president as the unqualified head of the executive branch. And the executive branch implements most laws. Presidents have several channels of influence over how executive branch agencies implement laws. Sometimes this influence is so great that it amounts to a substantive change in public policy.

Alexander Hamilton, The Federalist, No. 70, 1788

One channel of unilateral presidential power is the executive order. Executive orders are directives by the president to agencies within cabinet departments. They convey directions from the president as to how agencies are to make decisions and use their resources. The president has the implied power to issue executive orders under the Constitution. Since he holds all “executive power” under the Constitution, and the use of executive power requires the ability to direct executive agencies, the power to issue executive orders is implied.

Presidents issue hundreds of executive orders every year. Most are inconsequential for public policy, for example directing agencies to submit annual budget requests to the president by a certain date. However, some executive orders have major policy significance. Up through and including World War II, US military personnel lived in racially segregated barracks. President Harry Truman issued Executive Order 9981 in 1948 to integrate the armed forces. Over one million people served in the armed forces at the time, so this order had a significant effect on interaction of people of different races. Moreover, it set the tone for the rest of the country by suggesting that racial segregation was not acceptable in a widely respected institution. The armed forces continue to be on the frontiers of the politics of integration in society. Soon they will address issues of integration of transgendered persons into military barracks..

Executive Orders Issued, 1901-2016

Another example is the creation by President George W. Bush of the Office of Faith Based Initiatives (OFBI). This office was created by an executive order, and it provided input to several cabinet departments that administer grants to private organizations for community development purposes. The OFBI explicitly steered significant amounts of grant funding to organizations with explicitly religious, usually Christian, missions. In this way, President Bush unilaterally changed the role of religion in community development policy. This example illustrates another important general point about unilateral powers of the president: what one president does, a successor can undo. Presidents cannot bind future presidents to follow their directives, and future presidents can always undo such an initiative with the same tool used to create it — an executive order repealing a previous executive order.

Selected Characteristics of Faith-Based Organizations GAO Visited, 2005

Section Focus Question: What are the limitations of executive power?Key TermsDACA

Executive order and sexual assault US Department of Justice and enforcement Explicit vs. implied unilateral powers The case of Truman seizing the steel mills

Another important qualification on unilateral power is that simply issuing an executive order does not necessarily give the president final word over policy. If the president were to issue an executive order that directed an agency to ignore the law, the agency could be sued in federal court by anyone harmed by this decision. A court would then have the power to direct the agency to ignore the executive order and compel its action pursuant to the law. An example of this was the seizure of several large steel mills by President Harry Truman during the Korean War. A labor union strike had shut down the steel mills, but President Truman wanted to maintain production of steel for military supplies. Therefore, he directed executive agents to take control of the steel mills and operate the private property of its owners directly under the control of the federal government. The mills' owners sued the United States in federal court and won in a landmark decision, Youngstown Sheet & Tube v. United States (1952).

Moreover, in many cases where an executive order substantively affects policy, Congress could pass a new law negating the executive order. However, this power of Congress is tempered by the fact that the president could veto this law. Therefore, for Congress to overturn an executive order in law, it needs at least a veto-proof majority of both houses — two-thirds of the House and also of the Senate. For this reason, presidents can actually use

executive orders to implement a policy that most of Congress does not support. The president’s ability to do this is implied by the constitutional structure for making law.

Executive orders are not the only tool of unilateral power available to presidents. Besides executive orders and appointments, presidents can also exercise unilateral power through control of prosecutorial discretion or enforcement discretion. When any entity violates federal law in the US, agents of the federal government are often responsible to mount a court case against them. The executive branch also chooses whom the US will sue in federal court. This function is performed by the Department of Justice. Much of this power is exercised in Washington, DC, by agents of the president.

Youngstown Sheet & Tube Co. v. Sawyer

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For example, President Barack Obama’s election coincided with rising concerns about how colleges and universities handle investigations of sexual assault on campus and the protections they afford to victims. President Obama directed Attorney General Eric Holder who in turn directed the Department of Justice, to begin a far-reaching series of investigations, and possible federal lawsuits, of universities under Title VII of the Civil Rights Act of 1967 and Title IXof the Education Amendments of 1972.

These laws bar educational institutions from discrimination on the basis of gender. Under the 1972 law, institutions found guilty of doing so can lose federal grant funding. Not least because large universities garner millions of dollars per year in grant funds, they pay careful attention to the enforcement of these laws. In this way, the actions of the president caused a significant shift in university policies and victim rights on this pressing issue. It is safe to say that the Justice Department under President George W. Bush did not pursue this agenda so vigorously.

President Obama Remarks on the White House Task Force to Protect Students from Sexual Assault, January 22, 2014

Another major example of unilateral action through enforcement discretion is the Deferred Action for Childhood Arrivals (DACA) program initiated by President Obama. This program provides instructions for how units within the Department of Health and Human Services (HHS), a cabinet department in the executive branch, shall enforce immigration law. Specifically, the program works by controlling the use of discretion by federal agents who enforce immigration law. It requires these agents not to bring charges for deportation of undocumented immigrants who meet the DACA program requirements. Operationally, the program was created when President Obama directed the secretary of HHS to issue a memorandum to the heads of the US Immigration and Customs Enforcement (ICE) and US Customs and Border Patrol (CBP) executive branch agents. It ordered them not to pursue deportation of children of undocumented immigrants in a broad array of cases. The president expanded this program significantly in 2014, and in 2015 a federal court ruled that the expansion went too far. As of this writing, the case is still pending in federal court.

Unauthorized Immigrants Ages 30 and Under Eligible for Deportation Relief

Section Focus Question: How have presidents used executive power, and how has it been limited?Key Terms:Federal Reserve System

Andrew Jackson and the Bank War The Federal Reserve Board as an independent regulatory commission Expansion of the National Park System Discretionary vs. ministerial duties The Department of Veteran Affairs as a cabinet position Andrew Johnson impeachment Presidential discretion Dismissal "for cause"

These examples deal with recent cases of unilateral presidential action on important policy issues in our time. But presidents’ assertions of these powers are not new. Presidents have worked hard to carve out and maintain their control over the actions of the executive branch. A famous example was the effort by President Andrew Jackson to dismantle the Second Bank of the United States in 1833 in an episode known as the “Bank War.”

The Second Bank of the United States (BUS) was a private corporation with important public responsibilities. It held all deposits of the federal government on behalf of the US Treasury. BUS played an important role in regulating the amount of credit or loans that local banks could extend to farmers and merchants. (The Federal Reserve System, which plays that role today, was not created until 1913.) Regulation of credit placed BUS squarely in the middle of the most controversial political issues of the day.

Andrew Jackson, to a Delegation of Bankers Discussing the Recharter of the Second Bank of the United States, 1832; and Nicholas Biddle, President of the Second Bank of the United States, 1836

President Jackson was its sworn enemy. He wanted to destroy the ability of BUS to regulate credit. To do this, he directed his Treasury Secretary, Louis McLane, to remove all federal deposits from BUS. McLane balked and said that Congress had written in law that the treasury secretary has the discretion to handle BUS deposits. But President Jackson knew that regardless of where Congress tried to lodge the authority within the executive branch, the president had the authority to fire that person if he used the authority in a way the president did not like. That is exactly what Jackson did: he replaced McLane with William Duane. But Duane too resisted Jackson’s control, so Jackson summarily fired him too. Finally, Jackson found a firm ally, Roger Taney, to be treasury secretary. Taney removed the federal deposits at Jackson’s bidding. The regulatory power of BUS was instantly eviscerated. It limped along as a private corporation for a few years and folded soon after.

President Jackson’s actions are a classic example of the use of unilateral power to bend policy outcomes to the president’s liking. Congress attempted to allocate discretion to a subordinate in the executive branch. Jackson played a trump card by determining who that subordinate was, and therefore how they used that discretion. In this way, Jackson asserted effective presidential control over the discretion used by executive branch agents.

The Bank War nicely illustrates the interplay of presidents and executive branch officers in applying executive discretion. The law typically directs an executive officer below the president to apply their discretion to choose a policy. The president can direct that discretion to be used as he sees fit. But executive officers, like any employees, can disobey their boss, even if their boss is the president of the United States. The boss/president can try to persuade — and political scientist Richard Neustadt has famously argued that persuasion is the most potent power in the president’s arsenal. When persuasion fails, if the president cares enough, strong-arm tactics like firing a cabinet secretary are available.

“The Downfall of Mother Bank,” 1833

Presidential control of executive discretion does have limits. First, the US Supreme Court has differentiated between “ministerial” and “discretionary” duties of executive officers (Marbury v. Madison, 1803; Kendall v. United States Ex Rel. Stokes, 1838). Presidents cannot interfere with the exercise of ministerial duties. For example, if a court orders a government agency to compensate an individual for some harm, the president cannot legally direct the agency not to do so. The agency is acting in a ministerial capacity to carry out a job, not a discretionary capacity to choose policy.

Second, there are categories of executive officers who make policy choices that the president cannot dismiss simply due to disagreement with their choice. A crucial distinction exists between cabinet departments and independent regulatory commissions. Cabinet departments are units such as the Departments of Health and Human Services, Defense, Justice, State, etc. (any executive branch unit with “Department” in the name); the Environmental Protection Agency; and all their sub-agencies, bureaus, and offices. Independent regulatory commissions are units such as the Securities and Exchange Commission (which regulates financial markets); the Federal Communications Commission (which regulates radio and television broadcasts); the Federal Reserve Board (which regulates the US money supply); and the Federal Trade Commission (which regulates the competitiveness of the marketplace).

Types of Duties of Executive Officers

In cabinet departments, the president can dismiss senior personnel without giving a reason. In many cases, this means the dismissal can occur simply because the president disagrees with their political leanings. This makes sense: the president should not have to craft policy with a secretary of state or treasury or defense who shares a fundamentally different vision of the goals of the nation or the contours of good public policy. Congress has usually supported this idea, though occasionally they have tried to force the president to work with advisors he did not wish to keep. An example occurred in the presidency of Andrew Johnson after the Civil War. Congress passed a law to force President Johnson to keep Edwin Stanton as secretary of war. Johnson fired him anyway, and Congress impeached the president for violating the law. The US Supreme Court finally settled the issue in the 1926 case, Myers v. United States. The Court held that the president can fire senior advisors at will.

Cabinet Departments and Independent Regulatory Commissions

The situation is different in independent regulatory commissions. In Humphrey’s Executor v. United States (1935), the Court held that the president can dismiss senior policy makers in these commissions only for specific reasons — and political or policy disagreement is not among them. The laws creating these commissions typically declare that the commissioners can be dismissed only “for cause” — for example, neglect of their duties or public corruption. This is why a new president cannot simply fire the chair of the Federal Reserve Board just because she or he desires a different approach to monetary policy. The Court’s view was that Congress wished to insulate these bodies from shifts in the political winds, and that this was a legitimate purpose, so that in these cases it is acceptable to move them beyond the president’s immediate control.

Humphrey’s Executor v. United States, 1935

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Presidents have used unilateral powers to exert strong influence over public policy. Besides the examples covered here, cases such as the Louisiana Purchase (President Thomas Jefferson, 1803); the rapid expansion of the National Park System (President Theodore Roosevelt, 1901-08); the creation of the Environmental Protection Agency (President Richard Nixon, 1971); and bailouts of large banks in the Great Recession (Presidents Bush and Obama, 2008-09) are further examples of the outsize influence that presidents’ unilateral powers have over public policy.

The Louisiana Purchase, 1803; Teddy Roosevelt and John Muir, Yosemite, 1906; Ruckelshaus Sworn in as First EPA Administrator, 1971