Technically speaking, the President of the United States can make no laws that have not been passed by Congress. Article II of the US Constitution actually vests “executive power” in the President, which means that the Congress “legislates” (passes laws) and the President heads the Executive Branch and “executes” (enforces laws). But in exercising the broad executive powers of the office, the President sometimes actually can do things that have the effect of law.
♦ The effects of checks and balances and separation of powers on the legislative process
While the President and the Congress each have their specific roles in the lawmaking process, there is an interesting and dynamic rivalry and tension that occurs because the Executive and Legislative Branch each plays their part. In some respects the President encroaches on lawmakers’ “turf” through both constitutionally prescribed checks and sometimes through a blurry balancing act; to wit:
♦ The President has a “legislative agenda”
The President, being the one person elected by all the people in the United States (albeit indirectly through the Electoral College), wins elections on how well the supporting political party sells the upcoming four-year agenda the President proposes during the campaign by means of the so-called “platform.” That agenda can only be carried out by laws the President hopes to have Congress pass and his effective execution of the programs created by those laws. The President also reinforces that agenda yearly in the State of the Union address, which has typically been a method of telling Congress and the American people how the President’s program is progressing and what more needs to be done.
A large and expert advisory group in the President’s White House staff is dedicated to the President’s legislative program. They work closely with the legislators in Congress who are in the President’s political party. Those experts consult with lawmakers and help draft the legislation the President wants, and typically a member of Congress will, on behalf of the President, sponsor that legislation.
♦ The President’s veto power
The President can make no laws, but he (and, hopefully someday, she) has the power to keep them from passing by means of veto. Except in the case of a pocket veto, each branch of Congress must muster a two-thirds majority to override the veto for the bill to become law. This, in turn, gives the President as much power as the 67 Senators and 288 Representatives (if all are present during the vote) that it would take to overcome the President’s veto, something that has, historically, only has had a less-than-eight percent chance of happening.
♦ Gray areas: Proclamations and Executive Orders
◊ Proclamations
The President can, from time to time, issue proclamations, which have the effect of laws, but are typically somewhat innocuous. For example, proclaiming a day to honor some prominent citizen or healthful cause, would be two typical examples.
◊ Executive Orders
Although an executive order can be given out as a directive by a leader of some executive agency of the US government, it is a term most commonly applied to an order issued by the President of the United States and has the full force of a law. Usually, the order is in support of a some law passed by Congress that gives the President or his agents some discretionary powers in carrying out the law.
Except for vague references to “executive power” in Article II, there is no constitutional provision for executive orders, and some presidents have issued executive orders that many feel have exceeded their powers and have had the effect of the Chief Executive encroaching on the legislative prerogatives of Congress.
ο Examples:
Executive Order 9066 – Perhaps the worst example of abuse of executive power, this occurred during World War II. President Franklin D. Roosevelt authorized the military to remove Japanese-Americans from the West Coast to internment camps. American citizens were rounded up, transported and confined to bleak and isolated concentration camps away from their homes.
Executive Order 9981 – More in the service of justice, this Executive order by President Harry S. Truman granted “equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion, or national origin.” Fearing that he had insufficient congressional support for the measure, President Truman opted for desegregation through an executive order, 18 years ahead of any congressional civil rights legislation.
♦ Miscellaneous “quasi-legislative powers” of the President
◊ Treaties
Although they must be approved by a two-thirds vote in the Senate (Article II, section 2), the President (with the help of the Secretary of State) single-handedly conducts the foreign policy of the United States through treaties and other agreements, which, when approved by the Senate, have the effect of law. The Senate has, historically, approved in excess of 1,500 and rejected only 21.
◊ Presidential pardons
The President, under Article II, Section 2, of the Constitution has the power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Although not a legislative prerogative per se, Presidential pardons have the effect of overcoming the consequences of breaking a law passed by the Congress.