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Presidency of the United States

United States Executive Branch Power and its Limits

Exercise of Executive Branch Power

The president of the United States has broad executive power, exerted at times by the issuance of executive orders and the signing of executive agreements with foreign leaders. The president's power to veto laws and nominate federal judges gives the office influence over the other branches of the government.

While presidents do not have the ability to enact laws, they have the power to sign bills into law or veto them. This results in giving the president a fair amount of input into what bills move through Congress and significant influence over the legislative agenda. They may issue a signing statement, a written comment by the president at the time of signing a bill that explains the president's interpretation of the law, which may differ from the legislature's intent. Some signing statements have described the parts of the legislation that the president disagrees with and an intention by the president to ignore the legislation.

The president can wield substantial power through executive orders. An executive order is a directive issued by the president that carries much of the same force as a law enacted by Congress during the president's term. Throughout history, presidents have used executive orders in different ways. Executive orders are limited in duration to the term of the issuing president unless reissued by the successor.
Executive orders have become a powerful tool of the presidency in modern times.
A president may also enter into an executive agreement, which is an agreement between the United States and a foreign government. It is not as formal as a treaty and therefore does not need to be ratified by two-thirds of the U.S. Senate. There were only 1,200 executive agreements before 1940, but there have been more than 13,000 executive agreements since then as global relations have become more crucial.

The president also exercises executive power to influence the judicial branch. The president has the power to nominate Supreme Court justices, court of appeals judges, and district court judges. The nominations must be confirmed by the Senate. These judges serve until they resign, die, or are removed from office through a rigorous impeachment process. In this way, the president can have a lasting impact on the judiciary.

Limits on Executive Branch Power

A system of checks and balances keeps too much power from concentrating in the executive branch. Congress can override vetoes and must approve presidential appointments and the budget, and the judiciary can find executive branch actions unconstitutional.

The Constitution provides for a system of checks and balances between the legislative, executive, and judicial branches. While the president can veto a bill, Congress can override that veto, making it a law. While the president may nominate judges and justices, they must be confirmed by the Senate. This system ensures that nominated judges and justices are well qualified for their positions. Congress also places a check on the president regarding the federal budget. In 1921 the Budget and Accounting Act gave Congress and the president an equal share of budget responsibilities. The president drafts a budget, but it must be approved by Congress. Often, Congress amends the president's budget before it is approved.

Since Congress has legislative power, it can also pass legislation to curb the power of the president. Under the Constitution, the president is the commander in chief, with the authority to direct the armed forces. However, the ability to declare war lies with Congress. This has not prevented presidents from committing large numbers of troops to foreign conflicts without a formal declaration of war. In 1973 Congress passed the War Powers Act, legislation that limits the president's power to send troops into hostile situations without congressional approval. While the law was meant to prevent presidents from negating Congress's war power, some constitutional scholars claim that the law interferes with the president's power as commander in chief. Subsequent presidents have claimed not to be bound by it, but none have challenged it in court.

The judicial branch also serves as a check on presidential power. Through judicial review, it can rule that executive orders or executive branch implementation of laws passed by Congress are unconstitutional. Some court decisions limit presidential power further. In United States v. Nixon (1974), the Supreme Court unanimously ordered that the president must turn over evidence subpoenaed by a special prosecutor in an investigation of the conduct of executive branch officials. Nixon had claimed the right to withhold the material on the grounds of executive privilege, a president's constitutionally implied right to keep executive branch communications private. While granting that a president had limited privilege in areas of national security or diplomacy, the court's decision struck down the claim when it interfered with due process of law. In Clinton v. Jones (1997), the court ruled that a sitting president can be involved in a civil lawsuit and can be required to submit to questioning.

Checks and Balances and Limits on Executive Power

The U.S. Constitution balances the powers of the three branches of government by giving different distinct powers to each branch. Each branch has powers that serve as checks on the powers of another branch.

Effects of Term Limits and Public Opinion on the Executive Branch

Term limits and public approval of the job the president is doing have a great influence on what a president can accomplish in office.

Unlike members of Congress, a president faces term limits. This wasn't always the case. Originally, a president could serve unlimited terms, but the first president, George Washington, set the precedent of serving only two terms. This norm remained in effect until the 1930s, when Franklin Delano Roosevelt was elected to serve four terms. Just six years after his fourth election victory, the 22nd Amendment was enacted, limiting a president to two four-year terms.

Public opinion cannot be underestimated as a check on a president's power. Ultimately, the president and the members of Congress are accountable to the voting public. If they are not doing their jobs to the satisfaction of the people, they can be replaced in the next election. As such, a president with favorable ratings is likely to be able to convince Congress to enact the legislation the president favors, as members of Congress recognize that their ability to work with a popular president will help them in reelection. Conversely, Congress will be less likely to work with a president with poor approval ratings.