To what extent can presidential power be restricted by Congress?
Some believe the president holds broad power, citing this passage from Article II, Section 1 of the U.S. Constitution:
The executive Power shall be vested in a President of the United States of America.
And from Section 3:
He shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The view that the president holds total control over the executive branch is called the unitary executive theory.
Unitary Executive Theory
Under the George W. Bush administration's interpretation of the unitary executive theory, the president has authority over members of the executive branch.
He functions as a CEO or Commander-in-Chief, and his power is restricted only by the U.S. Constitution as interpreted by the judiciary.
Congress can hold the president accountable only by censure, impeachment or constitutional amendment. Legislation restricting the executive branch has no power.
Historian Arthur M. Schlesinger Jr. wrote The Imperial Presidency in 1973, a groundbreaking history of presidential power centering on an extensive critique of President Richard Nixon. New editions were published in 1989, 1998 and 2004, incorporating later administrations.
Although they originally had different meanings, the terms "imperial presidency" and "unitary executive theory" are now used interchangeably, although the former has more negative connotations.
President George W. Bush's attempt to obtain increased wartime powers represented a troubling challenge to American civil liberties, but the challenge is not unprecedented:
- The Sedition Act of 1798 was selectively enforced by the Adams administration against newspaper writers who supported Thomas Jefferson, his challenger in the 1800 election.
- The very first landmark U.S. Supreme Court case in 1803, Marbury v. Madison, established the power of the judiciary by resolving a separation-of-powers dispute between the president and Congress.
- President Andrew Jackson openly defied a Supreme Court ruling-the first, last, and only time that any U.S. president has done so-in Worcester v. Georgia in 1832.
- President Abraham Lincoln took on unprecedented wartime powers and violated multiple civil liberties on a large scale during the American Civil War, including due process rights for U.S. citizens.
- During the first Red Scare following World War I, President Woodrow Wilson suppressed free speech, deported immigrants based on their political beliefs and ordered massive unconstitutional raids. His policies were so draconian that they inspired protesters to form the American Civil Liberties Union in 1920.
- During World War II, President Franklin D. Roosevelt issued an executive order calling for the forced internment of over 120,000 Japanese Americans, as well as forced surveillance, ID cards and occasional relocation for immigrants from other perceived hostile nations.
- President Richard Nixon openly used executive branch law enforcement agencies to attack his political opponents and, in the case of Watergate, to actively cover up his supporters' criminal activities.
- Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton all actively pursued expanded presidential powers. One particularly stunning example was President Clinton's claim that sitting presidents are immune from lawsuits, a position the Supreme Court rejected in Clinton v. Jones in 1997.
Congress passed several laws restricting the power of the executive branch after Nixon's "imperial presidency."
Among these was the Independent Counsel Act which allows an employee of the Department of Justice, and thereby technically the executive branch, to operate outside the president's authority when conducting investigations of the president or other executive branch officials.
The Supreme Court found the Act to be constitutional in Morrison v. Olson in 1988.
Although the concepts of the unitary executive and the imperial presidency are most often associated with Republicans, President Bill Clinton also worked to expand presidential powers.
Most notable was his successful attempt to convince Congress to pass the Line-Item Veto Act of 1996, which allows the president to selectively veto specific parts of a bill without vetoing the entire bill.
The Supreme Court struck down the Act in Clinton v. City of New York in 1998.
Presidential Signing Statements
The presidential signing statement is similar to the line-item veto in that it allows a president to sign a bill while also specifying which parts of the bill he actually intends to enforce.
- Only 75 signing statements had ever been issued until the time of the Reagan administration. President Andrew Jackson issued only one.
- Presidents Reagan, G.H.W. Bush and Clinton issued a total of 247 signing statements.
- President George W. Bush alone issued more than 130 signing statements, which tended to be more sweeping in scope than those of his predecessors.
- President Barack Obama issued 36 signing statements, even though he indicated in 2007 that he disapproved of this tool and would not overuse it.
- President Donald Trump had issued more than 40 signing statements through 2019.
Possible Use of Torture
The most controversial of President George W. Bush's signing statements was attached to an anti-torture bill drafted by Sen. John McCain (R-Arizona):
The executive branch shall construe (the McCain Detainee Amendment) in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch… which will assist in achieving the shared objective of the Congress and the President… of protecting the American people from further terrorist attacks.