'The President is at liberty, both in law and conscience, to be as big a man as he can' (Woodrow Wilson). How effective are the limitations on presidential power?

Written by Gary Carter April 2007

Plan

Checks and balances
What checks does Congress have on the President’s power?
What checks does the Judiciary have on the President’s power?

Other limitations
Media
Party
Re-election

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The office of the President of the United States is held to be one of the most, if not the most, powerful offices and positions in the world. Many people believe that the President does not in fact have any limitations on his power and that what a president does is effectively up to him. This however is not the case. The President of the United States actually has many limitations placed upon him that can restrict what he wants to do in matters of policy. These limitations come from a number of areas including Congress and the judiciary and it is important to examine these limitations.

Checks and Balances

The system of checks and balances is the most widely known limitation on a president’s power. This is because these are enshrined in the US Constitution and this is these are the most frequently used check on the power of the president. The system of checks and balances are designed to balance the powers of the three branches of government, the legislature (Congress), the executive (the President) and the judiciary (headed by the Supreme Court). Therefore, whilst the President can restrict the Congress by veto and the judiciary by pardon and appointment, the other two branches can limit the power of the President. There is however, a debate on how effective these checks are and on whether these checks actually limit the President’s power.

Checks by the Congress

The powers that have been given to Congress by the Constitution to limit the powers of the president are numerous. Their effectiveness and usage however vary depending on the power. The first and most basic of these powers is the power to propose, amend, block and reject legislation. This is the most commonly used power to limit the President’s power. The effectiveness of this power depends on the make up of Congress. If the dominant party of one or both houses of Congress are the same party as the President, then this power will not be very effective in limiting the President’s power. This is because the Congress will not want to block the President’s legislation but push it through as they would support the policies of a President from their party. The minority party in this instance can only really block the legislation by attempting a filibuster and this is not usually successful or effective. If however, the President and the dominating party in Congress are opposing, then this power is much more effective. This is because the Congress would be much more willing to scrutinise every bill even if it is to make political capital from the scrutiny. This means that the Congress are more likely to force the President to refrain from more drastic and radical legislation because the President will know that the Congress are far more likely to veto such radical legislation. This is in fact an effective limit on the President’s power and this can be seen in the current situation in Washington and the situation on Capitol Hill from 1994-2000.
  The current situation and relationship of the Congress and the President is currently in the latter situation. The Congress is currently controlled by the Democrats and the Republican George W. Bush and this has created conflict over a number of issues, especially on Iraq. The chances of Congress blocking Bush’s legislation are very high in the near future.
  The best example of Congress blocking legislation and restricting the President’s power is the Clinton healthcare reform situation. President Bill Clinton had healthcare reform as one of the flagships of his 1992 election campaign. This was blocked however by the Congress was dominated by Republicans in 1994 after the ‘kick the bums out’ campaign. The Republican Congress then blocked the healthcare reforms that he cared about so much blocked. Congress in 1999, which was still dominated by Republicans the rejected legislation from President Clinton to increase the minimum wage. This shows that the power to block legislation from the President is actually a very effective if the circumstances are right.
 A power linked to Congress blocking the legislation is Congress blocking the President’s veto. This is when the Congress votes to support the legislation after a president vetoes it with a two-thirds majority. This is very rare and is not really effective as a limitation on the power of the US President. This is because while the overriding of the veto is often talked about, like the recent vetoing of the Iraq pullout timetable, the practicalities of it mean that it is rarely used. This is because both houses of Congress rarely are dominated by the same party with a majority of two-thirds. This is why this power is not a very effective limitation.
Another power that the Congress has that severely limits the power of the president is that the Congress declares war and not the President. This means that the president must go to Congress and ask that the country goes to war. In recent years this hasn’t been a limit as such because the Iraq war was declared by a Republican Congress who supported the Republican President Bush. If however, a president went to an opposition controlled Congress and asked if the country can go to war, then the Congress could severely limit the president’s power and bring him to his knees. This again is an effective limitation when the circumstances are suitable for it.
Congress can also limit the president’s power in foreign affairs in the fact that the Senate must approve any treaties that the president signs. The most poignant example of this is Woodrow Wilson, the president mentioned in the quote, and the Treaty of Versailles. In this instance, Woodrow Wilson, the president who negotiated the treaty and established the League of Nations as well as establishing the doctrine of ‘self determination’, had his treaty rejected by the Senate because this treaty went against the American philosophy at the time of ‘isolationism’. This limitation, such as the previous limit on foreign affairs, is very effective but this effectiveness however depends on the make up of the Congress and more specifically, the Senate.
The Senate can also investigate the President’s policies and appointments. This is generally very effective. If a policy is unpopular or the candidate controversial, then the Senate’s power in this area becomes much more effective in limiting the president and the president will be much more concerned. The president will much be concerned if the Senate may reject the candidate or criticise the policy in the Senate committee or even worse, on the Senate floor. This is may even force the President to make a humbling retreat to stop the even worse humiliation of a defeat by the Senate. This is an effective power, and unlike other powers to limit the executive, this is not dependant on the make up of the Congress. This can be seen by the Senate refusing to endorse John Bolton as the US Ambassador to the United Nations, despite the fact the Senate was still controlled by the Republicans. This is because John Bolton is a very controversial figure and not generally supported by the public. This shows that this power is possibly even more effective in limiting the president’s power as this does not depend on who is the controlling party in the Senate.

There is one other limitation on the president’s power held by the Senate and that is impeachment. This however, is a very rare power and this only really comes about when the president abuses their power. While this instance is very rare, Clinton was the first president to be impeached for a very long time, it is an effective power to stop the president abusing his power in the background.

Checks by the Judiciary

The courts have only one real power over the executive to limit his power and that is the power of judicial review. This is where the judicial branch can declare any act by any member of the executive branch unconstitutional. This power is very effective as this is not restricted by any political affiliation. This can be seen by two example cases. The first is Youngstown Sheet & Tube Company v Sawyer (1952). This is where the Supreme Court ordered President Truman’s commerce secretary Charles Sawyer was ordered to removal federal troops who he had sent into steel mills to break up a strike that affected the whole of the steel industry. The most well known case is that of United States v Nixon (1974). This ruled that President Nixon was behaving unconstitutionally by withholding the ‘White House Tapes’ and ordered him to hand these tapes over to the prosecutors investigating whether he was involved in the cover up of the Watergate affair. This is a very effective power and led to the resignation of Nixon. This an effective limitation as the president can not then go above the law and abuse the law and the president must respect the judiciary and all the decisions of law. This is shows that judicial review is very effective in limiting the power of the US president.

Other Limitations

 There are other much more subtle ways in which the President’s power can be limited. The first of these is the media. The media is a major influence on how the President’s policies are received by the general public. The media can also cripple a president in terms of how effectively he can use his power. This can be seen by Jimmy Carter in the late seventies. The media did not like the way that Carter had conducted himself and handled the situation surrounding the hostage taking in Iran in 1980 as well as Carter’s failure to get Leonid Brezhnev to stop the Soviet invasion of Afghanistan. The media’s daily kicking of Carter led to Carter being virtually unable to function as President and his he had no power but limitations.
The party and the chances of re-election also constrain the powers of the president. The party is a limitation because the president must always keep his own party so that he does not risk his own party voting against his policies or even worse, being de-selected from his party’s candidacy. This would be exceptional but would be one of the most humiliating events in US political history. This re-election obsession also acts as a self-regulating limitation of the president. The president would not want to risk his re-election chances by doing anything too controversial. These are effective in limiting the power of the president as they are effectively self-regulating.

Conclusion

In conclusion, there are a number of limitations on the power of the President of the United States. These limitations however, vary in effectiveness in restricting the president’s power. The powers to limit the president that Congress holds are only effective if the controlling party differs to that which the president is a member. The judiciary limitations are effective but only occur in rare instances. However, the limitations used by the media and the party can be quite effective as they are very subtle and in the background. This means the power of the president can be limited without a huge embarrassment.