Presidential Power:
Its use & abuse

By Alan Shapiro

To the Teacher:

What does the Constitution have to say about presidential power? How has presidential power been used and abused? The student readings below and several to follow open up opportunities to discuss these questions during the presidential campaign. Following the reading are discussion questions and suggestions for other student activities.

Other related materials are available on this website, including "Divided War Powers: The President and the Congress"; "A Source Book and Study Guide for High School and College Classrooms: Torture and War Crimes: the U.S. Record in Documents"; "Was the US Misled into the War on Iraq?"; and "Thinking Is Questioning."

Student Reading 1:
Why the Constitution's framers limited presidential power

"They were revolutionaries who detested kings, and their great concern when they established the United States was that they not accidentally create a kingdom," editorial observer Adam Cohen wrote of the framers of the Constitution. "To guard against it, they sharply limited presidential authority, which Edmund Randolph, a Constitutional Convention delegate and the first attorney general, called 'the fetus of monarchy.'"

The first Supreme Court chief justice, John Jay, wrote in the Federalist No. 4 that "absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal."

James Madison wrote: "It is in war…that laurels are to be gathered; and it is the executive brow they are to encircle." As Cohen points out, the British king had the power to declare war and crucial war powers. Wanting to make sure that the chief executive would not have such powers in the U.S., the Constitution's framers gave these powers to Congress. They made the president "commander in chief." But Alexander Hamilton underlined in Federalist No. 69 that the president would be "nothing more" than "first general and admiral," responsible for "command and direction" of military forces.

The framers gave Congress the crucial power of the purse. Madison wrote that its Constitutional control over spending was "the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people…."

Congress cannot appropriate money for an army for more than two years. Hamilton wrote that this prevented Congress from providing the executive branch with "permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence."

Fearing the unchecked power of European kings, the framers carefully crafted a federal system of separation and division of powers, a system of checks and balances. The Constitution prohibits one branch in the system from acting without accountability to the other branches.

But, Cohen concluded: "The Constitution cannot enforce itself. It is, as the constitutional scholar Edwin Corwin famously observed, an 'invitation to struggle' among the branches, but the founders wisely bequeathed to Congress some powerful tools for engaging in the struggle." (New York Times (7/23/07)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. All the creators of the Constitution grew into adulthood as subjects of King George III. They also learned about other European kings of their time, such as Louis XVI. What do you know about the actions of these kings that might have contributed to the views expressed by Madison, Hamilton and others? If you don't know, how might you find out?

3. What is the major reason the Constitution's framers created a government of divided powers, of checks and balances?

4. A struggle between the President and the Congress is common in the American experience. What examples can you cite of such struggles in the past? Today? If you can't cite any, how might you learn about them?

5. Why do you suppose that Madison and Hamilton regarded the power of the purse as so important?

Student Reading 2:
How would the candidates use their presidential power?


Media coverage of presidential candidates often focuses on less than serious issues: How much did that haircut cost? Has a candidate mispronounced a word? Was he unable to name the leader of Kazakhstan? Often attention centers on speculation unrelated to a candidate's views: Is a woman electable? Or a black man?

Our 24/7 cable TV news channels, newspapers, and internet sites often omit attention to serious issues, for example Republican candidate Mitt Romney's false statement during a Republican debate (6/5/07) that the Iraq war could have been avoided if Saddam Hussein "had opened up his country to [International Atomic Energy Agency] inspectors." In fact, Hussein had allowed these inspectors, who found nothing.

A basic, often ignored, but crucial issue, is how a candidate will use the power of the presidency.

"The executive power shall be vested in a president of the United States of America," begins Article II, Section 1 of the Constitution. In Sections 2 and 3 of the same article: "The president shall be commander in chief of the army and navy…." "He may require opinions in writing" from department heads, "granting reprieves and pardons," "make treaties," "appoint ambassadors, other public ministers and consuls, judges of the supreme court" and other officers-all with "the advice and consent of the Senate," "fill up vacancies that may happen during the recess of the Senate," "give to the Congress information of the state of the union," and recommend "to their consideration, such measures as he shall judge necessary and expedient," "receive ambassadors and other public ministers," "take care that the laws are faithfully executed."

That's about all the Constitution has to say about the role of the president. There are more words devoted to the electoral system than to presidential power. And there are no words at all on many questions that have been raised today about the use of president power: Can the president withhold information from Congress for "national security" or other reasons? Under what circumstances can he or she remove attorneys from federal courts? Or support "faith-based initiatives"?

A reading of the Constitution reveals nothing about how a president may send US troops to war (as presidents have repeatedly over the past half century). In fact, the Constitution declares that "The Congress shall have the power to declare war."

In a number of instances, presidents have been accused of abusing presidential power:

President Dwight Eisenhower gave the go-ahead to a secret and successful CIA plot to overthrow the lawfully elected leader of Guatemala. President John Kennedy approved a secret and unsuccessful CIA plot to overthrow Fidel Castro in Cuba. President Lyndon Johnson gave misleading information to obtain congressional authorization for a war in Vietnam that cost the lives of 58,000 Americans and uncounted Vietnamese.

President Richard Nixon authorized criminal acts, which resulted in the Watergate scandal, the imprisonment of presidential aides and the president's resignation. President Ronald Reagan violated US law in the Iran-Contra scheme, which resulted in funding for opponents of the Nicaraguan government and prison sentences for top administration officials.

Today, many people are questioning President George W. Bush's use of constitutional power in ordering the nation into war against Iraq and in authorizing several of his national security programs.

As Americans consider their choice for a 44th president, they need to learn how the candidates propose to use executive power. That means answers from candidates to questions about current US programs, such as:

• Do you support wiretapping American citizens as part of a surveillance program to prevent terrorist acts? If so, why? If not, why not?
  

• What will be your policy on "signing statements" that may cancel out the congressional legislation to which they are attached?
  

• How do you define torture? What will be your policy for the interrogation of American prisoners? Will it differ from current policy? Why or why not?
  

• Do you support the current policy of "extraordinary rendition," that is, transferring terror suspects to countries where they may be tortured? If so, why? If not, why not?

Each of these questions bears on the use of presidential power by the 43rd president and will be discussed in additional readings.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Do you think that the media spends too much time during presidential campaigns on relatively trivial matters? Why or why not?

3. How might you learn about a candidate's likely use of executive power on a specific issue?

4. What other information do you have about presidential abuse-of-power controversies noted in the reading? Can you explain the motivations for these presidential actions, how they were discovered and their consequences? If not, how might you find out?

For Inquiry

Select one of the controversies over presidential abuse of power. Independently or in a small group, frame a carefully worded question to guide an inquiry into that case. After the teacher has approved the question, students can begin their investigation by identifying three to five likely worthwhile sources of information.

For Class Discussion

As each students to prepare three of the best questions they can think of to ask a presidential candidate about his or her approach to the use of executive power.

Divide the class into groups of four to six students to read and discuss each person's questions. Ask each group to select what they think are the three best questions. Then work with the class to analyze these questions and consider how they might be answered.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

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