Presidential Governance: Direct Presidential Action

DOMESTIC POLICY

The president may not be able to appoint key members of his or her administration without Senate confirmation, but he or she can demand the resignation or removal of cabinet officers, high-ranking appointees (such as ambassadors), and members of the presidential staff. During Reconstruction, Congress tried to curtail the president’s removal power with the Tenure of Office Act (1867), which required Senate concurrence to remove presidential nominees who took office upon Senate confirmation. Andrew Johnson’s violation of that legislation provided the grounds for his impeachment in 1868. Subsequent presidents secured modifications of the legislation before the Supreme Court ruled in 1926 that the Senate had no right to impair the president’s removal power.Myers v. United States, 272 U.S. 52 (1925). In the case of Senate failure to approve presidential nominations, the president is empowered to issue recess appointments (made while the Senate is in recess) that continue in force until the end of the next session of the Senate (unless the Senate confirms the nominee).

The president also exercises the power of pardon without conditions. Once used fairly sparingly—apart from Andrew Johnson’s wholesale pardons of former Confederates during the Reconstruction period—the pardon power has become more visible in recent decades. President Harry S. Truman issued over two thousand pardons and commutations, more than any other post–World War II president.“Bush Issues Pardons, but to a Relative Few,” New York Times, 22 December 2006, http://www.nytimes.com/2006/12/22/washington/22pardon.html. President Gerald Ford has the unenviable reputation of being the only president to pardon another president (his predecessor Richard Nixon, who resigned after the Watergate scandal) (Figure). While not as generous as Truman, President Jimmy Carter also issued a great number of pardons, including several for draft dodging during the Vietnam War. President Reagan was reluctant to use the pardon as much, as was President George H. W. Bush. President Clinton pardoned few people for much of his presidency, but did make several last-minute pardons, which led to some controversy. To date, Barack Obama has seldom used his power to pardon.U.S. Department of Justice. “Clemency Statistics.” https://www.justice.gov/pardon/clemency-statistics (May 1, 2016).

A photo of Gerald Ford speaking in the House of Representatives.
In 1974, President Ford became the first and still the only president to pardon a previous president (Richard Nixon). Here he is speaking before the House Judiciary Subcommittee on Criminal Justice meeting explaining his reasons. While the pardon was unpopular with many and may have cost Ford the election two years later, his constitutional power to issue it is indisputable. (credit: modification of work by the Library of Congress)

Presidents may choose to issue executive orders or proclamations to achieve policy goals. Usually, executive orders direct government agencies to pursue a certain course in the absence of congressional action. A more subtle version pioneered by recent presidents is the executive memorandum, which tends to attract less attention. Many of the most famous executive orders have come in times of war or invoke the president’s authority as commander-in-chief, including Franklin Roosevelt’s order permitting the internment of Japanese Americans in 1942 and Harry Truman’s directive desegregating the armed forces (1948). The most famous presidential proclamation was Abraham Lincoln’s Emancipation Proclamation (1863), which declared slaves in areas under Confederate control to be free (with a few exceptions).

Executive orders are subject to court rulings or changes in policy enacted by Congress. During the Korean War, the Supreme Court revoked Truman’s order seizing the steel industry.Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). These orders are also subject to reversal by presidents who come after, and recent presidents have wasted little time reversing the orders of their predecessors in cases of disagreement. Sustained executive orders, which are those not overturned in courts, typically have some prior authority from Congress that legitimizes them. When there is no prior authority, it is much more likely that an executive order will be overturned by a later president. For this reason, this tool has become less common in recent decades (Figure).

A graph showing the average number of executive actions each U.S. President took per year in office. In reverse chronological order, Barack Obama took 0.0905 actions per year, George W. Bush took 0.0997, William J. Clinton took 0.1247, George Bush took 0.1137, Ronald Reagan took 0.1305, Jimmy Carter took 0.2192, Gerald R. Ford took 0.1890, Richard Nixon took 0.1708, Lyndon B. Johnson took 0.1722, John F. Kennedy took 0.2064, Dwight D. Eisenhower took 0.1658, Harry S. Truman took 0.3194, Franklin D. Roosevelt took 0.8411, Herbert Hoover took 0.6630, Calvin Coolidge took 0.5896, Warren G. Harding took 0.5934, Woodrow Wilson took 0.6175, William Howard Taft took 0.4959, Theodore Roosevelt took 0.3965, William McKinley took 0.1119, Benjamin Harrison took 0.0979, Grover Cleveland took 0.1733, Chester Arthur took 0.0760, James Garfield took 0.0299, Rutherford B. Hayes took 0.0630, Ulysses S. Grant took 0.0743, Andrew Johnson took 0.0556, Abraham Lincoln took 0.0319, James Buchanan took 0.0110, Franklin Pierce took 0.0240, Millard Fillmore took 0.0124, Zachary Taylor took 0.0101, James J. Polk took 0.0123, John Tyler took 0.0119, William Henry Harrison took 0, Martin Van Buren took 0.0068, Andrew Jackson took 0.0041, John Quincy Adams took 0.0021, James Monroe took 0.0003, James Madison took 0.0003, Thomas Jefferson took 0.0014, John Adams took 0.0007, and George Washington took 0.0028. At the bottom of the graph, a source is listed: “Gerhard Peters and John T. Woolley, “Executive Orders.” The American Psychology Project. Ed. John T. Wooley and Gernard Peters. Santa Barbara, CA. 1999-2016.”.
Executive actions were unusual until the late nineteenth century. They became common in the first half of the twentieth century but have been growing less popular for the last few decades because they often get overturned in court if the Congress has not given the president prior delegated authority.

Executive Order 9066

Following the devastating Japanese attacks on the U.S. Pacific fleet at Pearl Harbor in 1941, many in the United States feared that Japanese Americans on the West Coast had the potential and inclination to form a fifth column (a hostile group working from the inside) for the purpose of aiding a Japanese invasion. These fears mingled with existing anti-Japanese sentiment across the country and created a paranoia that washed over the West Coast like a large wave. In an attempt to calm fears and prevent any real fifth-column actions, President Franklin D. Roosevelt signed Executive Order 9066, which authorized the removal of people from military areas as necessary. When the military dubbed the entire West Coast a military area, it effectively allowed for the removal of more than 110,000 Japanese Americans from their homes. These people, many of them U.S. citizens, were moved to relocation centers in the interior of the country. They lived in the camps there for two and a half years (Figure).Julie Des Jardins, “From Citizen to Enemy: The Tragedy of Japanese Internment,” http://www.gilderlehrman.org/history-by-era/world-war-ii/essays/from-citizen-enemy-tragedy-japanese-internment (May 1, 2016).

A photo of sign in a store front that says “I am an American.”
This sign appeared outside a store in Oakland, California, owned by a Japanese American after the bombing of Pearl Harbor in 1941. After the president’s executive order, the store was closed and the owner evacuated to an internment camp for the duration of the war. (credit: the Library of Congress)

The overwhelming majority of Japanese Americans felt shamed by the actions of the Japanese empire and willingly went along with the policy in an attempt to demonstrate their loyalty to the United States. But at least one Japanese American refused to go along. His name was Fred Korematsu, and he decided to go into hiding in California rather than be taken to the internment camps with his family. He was soon discovered, turned over to the military, and sent to the internment camp in Utah that held his family. But his challenge to the internment system and the president’s executive order continued.

In 1944, Korematsu’s case was heard by the Supreme Court. In a 6–3 decision, the Court ruled against him, arguing that the administration had the constitutional power to sign the order because of the need to protect U.S. interests against the threat of espionage.Korematsu v. United States, 323 U.S. 214 (1944). Forty-four years after this decision, President Reagan issued an official apology for the internment and provided some compensation to the survivors. In 2011, the Justice Department went a step further by filing a notice officially recognizing that the solicitor general of the United States acted in error by arguing to uphold the executive order. (The solicitor general is the official who argues cases for the U.S. government before the Supreme Court.) However, despite these actions, in 2014, the late Supreme Court justice Antonin Scalia was documented as saying that while he believed the decision was wrong, it could occur again.Ilya Somin, “Justice Scalia on Kelo and Korematsu,” Washington Post, 8 February 2014, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/08/justice-scalia-on-kelo-and-korematsu/.

What do the Korematsu case and the internment of over 100,000 Japanese Americans suggest about the extent of the president’s war powers? What does this episode in U.S. history suggest about the weaknesses of constitutional checks on executive power during times of war?

Link to learning graphic

To learn more about the relocation and confinement of Japanese Americans during World War II, visit Heart Mountain online.

Finally, presidents have also used the line-item veto and signing statements to alter or influence the application of the laws they sign. A line-item veto is a type of veto that keeps the majority of a spending bill unaltered but nullifies certain lines of spending within it. While a number of states allow their governors the line-item veto (discussed in the chapter on state and local government), the president acquired this power only in 1996 after Congress passed a law permitting it. President Clinton used the tool sparingly. However, those entities that stood to receive the federal funding he lined out brought suit. Two such groups were the City of New York and the Snake River Potato Growers in Idaho.Glen S. Krutz. 2001. Hitching a Ride: Omnibus Legislating in the U.S. Congress. Columbus, OH: Ohio State University Press. The Supreme Court heard their claims together and just sixteen months later declared unconstitutional the act that permitted the line-item veto.Clinton v. City of New York, 524 U.S. 417 (1998). Since then, presidents have asked Congress to draft a line-item veto law that would be constitutional, although none have made it to the president’s desk.

On the other hand, signing statements are statements issued by a president when agreeing to legislation that indicate how the chief executive will interpret and enforce the legislation in question. Signing statements are less powerful than vetoes, though congressional opponents have complained that they derail legislative intent. Signing statements have been used by presidents since at least James Monroe, but they became far more common in this century.