In the United States, the Constitution divides power between three branches of government: Legislative, Executive and Judicial. These divisions create a legal system that protects the President from arbitrary power.
The President is given broad appointing authority, but Congress has the power to vest some of that authority in other officers, such as independent counsel. These transfers are critical to ensuring the independence of the President from the other branches when facing challenges in federal courts.
Constitutional Authority
The United States of America is governed by a written Constitution that combines a system of checks and balances between the legislative, executive, and judicial branches of government. The framers of the Constitution emphasized this separation of powers to prevent a national government from becoming too powerful.
The Constitution enumerates the powers of Congress and the President, and provides specific areas in which they may legislate. It also assigns to each of the three branches distinct responsibilities.
Under Article II, Section 2, clause 1, the President has “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This gives the President almost limitless power to pardon any person who has been convicted of federal crimes, without having to resort to the Congressional process.
Article II also grants the President “Power, by and with the Advice and Consent of the Senate, to make Treaties.” These are a crucial means of establishing foreign policy, but they must be approved by the Senate before being entered into.
This is because only a treaty can surmount existing federal law, which would otherwise preclude the President from entering into such an agreement. In addition, a treaty must be signed by the President and the Secretary of State before it can take effect.
Another important aspect of the Constitution is the Appointments Clause, which grants the President the power to appoint members of the Cabinet, Members of the Supreme Court, and other officers of the federal government. These appointments, however, must be approved by the Senate, which has special “advice and consent” powers over these matters.
The President also has the power to remove federal officials, although this can be limited by statute. In particular, the President cannot be prevented from removing Members of the Cabinet, but they can be removed when it is shown that a member of the Executive Branch is unfit for office, or if they are in violation of their oaths of office.
The Supreme Court is also a key branch of government, as it has the power to invalidate laws or executive actions that are in conflict with the Constitution. These judgments are typically final, and they can only be changed by the rarely used procedure of constitutional amendment. The Supreme Court also has a strong commitment to the Constitution, as it strives to preserve and protect its historic document.
Executive Authority
The President of the United States is charged with enforcing the laws written by Congress (see “Congress”), but he can also exercise a check on this power through the veto power.
In addition, the President can issue executive orders — instructions issued to governmental agencies without the need for congressional approval. These orders have the force of law, but they can be vetoed by a president at any time if he or she believes the order is in conflict with existing laws or is not consistent with the Constitution.
Presidential orders can be made through a variety of sources, including the President’s authority as Commander-in-Chief and a specific statute that is supported by the Constitution or by other laws. Courts will generally defer to executive orders that are supported by a legal authority, although they may strike down an order if it is outside the President’s authority.
Another source of executive authority is the power to declare a state of emergency, which expands the President’s powers and grants him or her greater control over federal agencies. This expanded power can be used to deal with wars, public health emergencies, or other crisis situations.
During times of extreme partisan division in Congress, the President has sometimes used executive orders to establish policies in areas that are difficult to pass in a legislative vote. These actions are often criticized by conservative scholars who argue that they overstep the President’s authority and that Congress should be given a stronger role in these matters.
In recent years, Presidents have increasingly turned to executive action as a way to achieve their policy goals. This has been a trend that is likely to continue as Congress becomes less able to reach consensus on issues.
Legislative Authority
The Legislative Authority of the United States is entrusted to Congress, which has broad power over raising revenue, determining war and peace, organizing the executive and judicial branches, and making all laws necessary for the execution of these powers. The President has limited veto authority over legislation, but he can be overridden by two-thirds majorities of both houses of Congress.
The Constitution also grants Congress power to advise and consent on key executive and judicial appointments, and to approve treaties. The Senate, in particular, has a vital role to play in overseeing presidential vetoes and helping to evaluate the effectiveness of executive branch implementation of legislatively mandated programs.
In addition to the President’s statutory veto authority, he can use other means of exercising his executive power, such as issuing executive orders and appointing federal judges. But the scope of presidential authority is often contested.
For example, some scholars argue that Presidents must enforce all congressional enactments, even those they consider unconstitutional or that may have been adopted on an improper basis. Others, however, suggest that Presidents may sometimes ignore or even refuse to enforce enactments on the grounds that they do not represent true “laws” subject to their faithful execution duty.
This can create a tension between the Executive and Legislative branches, especially in times of political turmoil. For instance, in the early part of this century, President Franklin Roosevelt indicated in a signing statement that he felt section 304 of the Urgent Deficiency Appropriations Act was unconstitutional, but nonetheless signed it to prevent the nation from falling behind in World War II.
But the Constitution does limit a president’s ability to exercise this power, and there are many formal and informal checks in place to restrain it. For instance, the Take Care Clause, in Article III, Section 3, imposes on the President the obligation to ensure that all laws are faithfully executed. Moreover, Congress can override a president’s veto by a two-thirds vote in the House and Senate. And, of course, a president cannot unilaterally issue executive orders that have no legal effect or are not published in the Federal Register, as required by law.
Judicial Authority
Judicial authority is the ability of a court to make decisions in a legal case. It is often referred to as the “court system,” and it is composed of many different courts, including state and federal courts. The judicial branch of the American government has authority to interpret and enforce laws and also to review other branches’ interpretations.
The Constitution states that “judicial Power shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The judicial power of the United States extends to all cases in law and equity arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases of admiralty and maritime jurisdiction; to controversies between two or more States; between a State and Citizens of another State; between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
A Supreme Court judge, known as a justice, is appointed by the President and confirmed by the Senate. They are typically appointed for life, although they may be removed by impeachment or conviction in the House of Representatives.
These judges, and the judicial branch in general, are protected from the influence of prevailing political climates and special interests. In order to do this, the Founders made sure that federal judges and the judiciary are appointed, rather than elected.
This means that they are not subject to the whims of voters, and therefore can be more impartial in their decision making than other governmental officials. The Founders were concerned with the separation of powers and believed that the best way to protect freedom, equality, and justice was through a balance between the legislative and judicial branches of the government.
In many cases, the President must take action to ensure that the judicial branch can properly interpret and apply the laws of the country. For instance, if Congress passes a statute that the President feels is unconstitutional, the President may refuse to implement or veto it. This practice is not without precedent and the Supreme Court has recognized the existence of the President’s authority to decline to implement a constitutionally objectionable provision in a statute that he has approved.