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This task links to the Course Assessment Specification (CAS): The executive branch -the distribution of power & the relationship between the executive and other branches of government.
We now need to examine the powers of the US President in greater depth. We are going to look into the following areas of the powers of the President:
1. Fiscal powers (the influence and control the executive holds over the economic matters of state)
2. Powers of patronage (the power to appoint individuals to positions of power)
3. The power relationship between the executive and the other branches of power: the legislature and the judiciary.
By examining these three areas of power we can understand the extent of the executive's influence and power.
Fiscal Powers
In the US, the budget is proposed by the executive, but then has to be voted upon and approved by Congress. This means that in order for the budget to be approved there has to be a cross-party agreement.
This can place a significant restriction on the fiscal power of the President. If a budget is not approved by the beginning of the new financial year, a government shutdown is triggered. The US faced the longest government shutdown in its history from late December 2018 to January 2019, lasting 35 days. This shutdown cost the US economy around $11 billion, and temporarily shut down a quarter of all government activities. The shutdown emerged as a result of disagreements over funding for President Trump’s border wall between the US and Mexico. The Democrats rejected Donald Trump’s demands to include $5.7bn for a southern border wall in a spending bill.The president accused the Democrats of “obstruction” for failing to go along with his wall idea and asserted that Democrats “know it [the wall] is really needed”. Democrats said a border wall would be an expensive and ineffective solution to a problem that Trump exaggerates.
Trump tweeted, “This isn’t about the Wall … This is only about the Dems not letting Donald Trump & the Republicans have a win.” Trump also revived a 2011 tweet on immigration from Barack Obama, which read: “I strongly believe that we should take on, once and for all, the issue of illegal immigration.” Trump added: “I totally agree!”
Powers of patronage
The US President can appoint individuals to positions in the federal government; however, these appointments have to be ratified (approved) by the Senate. The President may work around this by making appointments when the Senate is not in session, however these only last until the end of the next session.
The Senate attempts to work around this by holding sessions every few days, even during holidays. In 2017 US politicians blocked Donald Trump from making appointments without their permission as the Senate was due to begin its summer break.
Senators unanimously agreed to hold nine short “pro-forma” sessions during the break, which runs from 11 August to 5 September. This meant that the Senate would be in session every three days throughout August.
The US Constitution says neither the Senate nor the House "can adjourn for more than three days without the consent of the other."
Democrats suggested they would use the procedure to block the US President after it was suggested Mr Trump would try to replace Attorney General Jeff Sessions during recess.
(On November 7, 2018 Sessions resigned as Attorney General at the president's request)
The Guardian reported the following in April 2020 about the influence the President has over the judiciary:
During Trump's 2016 campaign trail he promised to fill the courts with conservative judges, understood to mean judges who were skeptical of environmental regulations, who were not enthralled with the legacy of the civil rights era and who took a narrow view of a woman’s right to choose
To combat doubts about his conservative credentials, Trump took the unusual step of releasing, while still a candidate, a list of his potential picks for the US supreme court. The list was curated by the Federalist Society, the country’s largest organisation of conservative legal activists.
At the circuit court level, Trump has installed 51 judges, or about 30% of all active judgeships, just one step before the US supreme court. He is preparing to fill dozens of district court vacancies. Most significantly of all, Trump has appointed two justices to the supreme court, Neil Gorsuch and Brett Kavanaugh, out of nine total.
Together these judges wield immense power over who gets to vote, who gets to marry, who has access to healthcare, who carries a gun, who is branded a criminal, who may join a union, who is protected from discrimination and who has permission to discriminate on religious grounds.
Pervasive influence on the federal judiciary is an immense prize, with implications spanning generations, given that federal judgeships are lifetime appointments. And it is a prize, analysts say, that Trump has handed the conservative movement, creating a powerful bulwark for his own political fortunes.
“These judges have all been vetted in terms of judicial philosophy,” said Sheldon Goldman, a professor of political science at the University of Massachusetts at Amherst who focuses on the federal bench. “All believe in a bench that is not activist in terms of promoting civil libertarian values. But they’re activist judges in terms of promoting the values that are important to them – property rights, pro-business, anti-regulation.”
Trump’s success at installing top-level judges – he has placed more, faster, than any previous president – has owed to the preparedness of outside groups in taking advantage of Republican control of both the presidency and the US Senate, which is in charge of confirming judges. Trump also has benefited from dozens of retirements by judges who were appointed by previous Republican presidents.
But his best friend in the effort has been Mitch McConnell, the Senate majority leader, who by blocking nominees under Barack Obama helped create 17 appeals court vacancies for Trump when he took office, more than any of his recent predecessors. McConnell also held a supreme court seat open for Trump, and he has changed Senate rules to speed the confirmation of Trump judges.
Have Trump’s judges made any impact yet?
While experts advise that it could take five years or more for the full picture to develop of how Trump’s judges are changing the courts, and the country, signs are emerging of a potential phase shift.
Formerly reliable progressive benches have issued rulings that threaten access to reproductive healthcare, while others have greenlighted the Trump administration’s most reckless attacks on voting rights and on vulnerable populations, from the disabled to victims of police abuse to asylum seekers. The supreme court, meanwhile, has consistently sided with Trump administration requests for emergency relief from lower court rulings against executive actions by Trump to create a wealth test for green card applicants, divert Pentagon funding for a border wall, ban transgender individuals from the military and more.
What is at stake in these changes?
Goldman expressed general confidence in the health of the judiciary and said many Trump judicial appointees were qualified for their posts. But he warned of dire consequences if Trump’s judges gave in wholly to the president’s desire to prosecute his political enemies and destroy the free press. “We have a president who has authoritarian instincts,” said Goldman. “We have a president who is rather vindictive. That’s really the big issue now – whether the constitution of the United States, the bill of rights, will survive Trump.”
The power relationship between the executive and the legislature
The President’s relationship with the legislature (The United States Congress is the bicameral (2 chamber) legislature of the federal government of the United States and consists of two chambers: the House of Representatives and the Senate) is often described as one based on persuasion.
The reason that the President relies on his or her powers of persuasion is because almost every power that the president possesses is checked by Congress. The president therefore needs Congress' agreement. This can be difficult especially when the president's party is not in the majority in both houses of Congress.
The makeup of Congress changes every two years when voters elect Representatives in the House and some members of the U.S. Senate. Between 2017 and 2018, Donald Trump's party, the Republicans, controlled both the House and the Senate. This meant that the president was able to enjoy support in both houses.
In the 116th Congress – 2019 and 2020, Democrats took control of the House of Representatives in the midterm elections of 2018, though Republicans slightly increased their Senate majority.
As of October 2019, Republicans held 197 seats in the House of Representatives, Democrats held 234 seats; there was one independent (a former Republican) and three vacancies.
As of October 2019, Republicans held 53 seats in the Senate, Democrats held 45 seats; there were two independents, both of whom caucused (a group of people united to promote an agreed-upon cause) with the Democrats.
Impeachment proceedings against Donald Trump were initiated on December 18, 2019, when the House of Representatives approved articles of impeachment on charges of abuse of power and obstruction of Congress. Trump was later acquitted by the Senate on these two counts of impeachment on February 5, 2020.
Read the article attached to the top of this post about Trump's recent dealings with Congress. The article describes Trump as,
'...treating the Congress as support staff to his presidency and relying on sheer force of personality to shape the government to his will. A simple Trump tweet can cower critics and reward loyalists all the same. His power only grows as lawmakers, particularly Senate Republicans, stay silent.
The result is a an exhaustive, head-spinning era that's turning Capitol Hill into a spectator stand of those watching, reacting and shaking a fist as their institutional prerogative is slipping away.
"There's a deeper institutional question," said Sen. Angus King, the independent from Maine. "The Congress is abdicating its responsibilities to the executive." '
Trump is currently escalating his fight with Congress over a broad bipartisan ( the agreement or cooperation of two political parties that usually oppose each other's policies) effort to rename military installations named for figures from the Confederacy (Existing from 1861 to 1865, the Confederacy was originally formed by secession of seven slave-holding states—South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas—in the Lower South region of the United States, whose economy was heavily dependent upon agriculture, particularly cotton, and a plantation system that relied upon the labor of African-American slaves), threatening to veto an annual defense bill if it includes the provision. You can read more about this here.
The House approved its annual defense policy bill in a 295-125 vote in late July, taking a step toward confrontation with President Trump over stripping Confederate names from military bases.
The fiscal 2021 National Defense Authorization Act (NDAA) was approved with a veto-proof majority, though it is possible that some of the 108 Republicans who voted for the legislation could change their votes to back up a presidential veto. The 125 "no" votes included 43 Democrats.
The massive $740.5 billion defense bill covers everything from authorizing a 3 percent pay raise for troops to establishing a $3.6 billion fund to counter China in the Indo-Pacific region to setting aside $1 billion to help the Pentagon with pandemic preparedness amid the coronavirus crisis.
But the fight is over language that would require the Pentagon to rename bases and other military properties that are named after Confederate military officers. The version of the NDAA approved Tuesday would require the names to be changed in one year.
In a Fox News interview, Trump said he “might” veto the bill after tweeting last month that he “will” veto it if the renaming requirement stays in.
An official White House statement of administration policy also threatened to veto the bill. Republicans have urged Trump to back off the threats and have even raised the possibility of a veto override.
The veto occurs when a President objects to a bill or resolution. The President usually sends the bill back to Congress with a message explaining his objections; this is known as a direct veto. If the President withholds his signature during the 10-day review period allowed by the Constitution and Congress adjourns during that period, it is considered a “pocket veto” and the bill doesn’t become a law. The last pocket veto used by President Bill Clinton in December 2000.
Overriding a presidential veto requires a two-thirds majority in both the House and the Senate, as specified in Article 1, Section 7 of the Constitution.
Here are some examples of Trump's vetoes:
1. National Emergency Resolution
The US president is able to issue an Executive Order (EO) to circumvent the power of the legislative branch. An executive order is an official directive from the U.S. president to federal agencies that often have much the same power of a law. Throughout history, executive orders have been one way that the power of the president and the executive branch of government has expanded—to degrees that are sometimes controversial. This news report offers analysis of Trump's EOs.
Congress can revoke an executive order by passing new legislation. The judiciary is able to overturn EOs which it finds to be unconstitutional.
The power relationship between the executive and the judiciary
The judiciary is the guardian of the liberty of the people and this function can be performed efficiently and honestly only when it is independent of the control of the executive.
Although appointments to the Supreme Court are political and made by US presidents, the Supreme Court is able to scrutinise the actions of the executive by interpreting actions (through a judicial review) and decisions of lower courts or presidential executive orders, for example in terms of whether they were unconstitutional or constitutional.
Trump is currently wrangling with the Supreme Court over calls for him to disclose his personal financial records. The court also refused to side with his argument that the presidency protects him from investigation. Trump declared on Twitter that this was 'not fair'.
Trump has been very critical of the current Supreme Court. You can see more on this here.
Your task is to read the text above and the attached document and respond to the following question:
“Separation of powers” refers to the idea that the major institutions of state should be functionally independent and that no individual should have powers that span these offices. (The principal institutions are usually taken to be the executive, the legislature and the judiciary.)
Do you think there is a distinct separation of powers in the US system? Provide at least one argument for and one against the idea that the US system enjoys a total separation of powers. Add your views in the comments below: