Chapter 13 The Presidency

Congressional Limitations on Presidential Power

Almost all presidential powers rely on what Congress does (or does not do). Presidential executive orders implement the law but Congress can overrule such orders by changing the law. And many presidential powers are delegated powersPresidential prerogatives accorded by legislation, where Congress gives authority under the powers given to it by the Constitution. that Congress has accorded presidents to exercise on its behalf—and that it can cut back or rescind.

Congress can challenge presidential powers single-handedly. One way is to amend the Constitution. The Twenty-Second Amendment was enacted in the wake of the only president to serve more than two terms, the powerful Franklin D. Roosevelt (FDR). Presidents now may serve no more than two terms. The last presidents to serve eight years, Ronald Reagan, Bill Clinton, and George W. Bush, quickly became “lame ducks” after their reelection and lost momentum toward the ends of their second terms, when attention switched to contests over their successors.

ImpeachmentCongress’s power to remove executive officers and judges from office for “treason, bribery and high crimes and misdemeanors.” gives Congress “sole power” to remove presidents (among others) from office.The language in the Constitution comes from Article I, Section 2, Clause 5, and Article I, Section 3, Clause 7. This section draws from Michael Les Benedict, The Impeachment and Trial of Andrew Johnson (New York: Norton, 1973); John R. Labowitz, Presidential Impeachment (New Haven, CT: Yale University Press, 1978); and Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis, 2nd ed. (Chicago: University of Chicago Press, 2000). It works in two stages. The House decides whether or not to accuse the president of wrongdoing. If a simple majority in the House votes to impeach the president, the Senate acts as jury, House members are prosecutors, and the chief justice presides. A two-thirds vote by the Senate is necessary for conviction, the punishment for which is removal and disqualification from office.

Prior to the 1970s, presidential impeachment was deemed the founders’ “rusted blunderbuss that will probably never be taken in hand again.”The early twentieth-century political scientist Henry Jones Ford quoted in John R. Labowitz, Presidential Impeachment (New Haven, CT: Yale University Press, 1978), 91. Only one president (Andrew Johnson in 1868) had been impeached—over policy disagreements with Congress on the Reconstruction of the South after the Civil War. Johnson avoided removal by a single senator’s vote.

Since the 1970s, the blunderbuss has been dusted off. A bipartisan majority of the House Judiciary Committee recommended the impeachment of President Nixon in 1974. Nixon surely would have been impeached and convicted had he not resigned first. President Clinton was impeached by the House in 1998, though acquitted by the Senate in 1999, for perjury and obstruction of justice in the Monica Lewinsky scandal.

Figure 13.2

Bill Clinton was only the second US president to be impeached for “high crimes and misdemeanors” and stand trial in the Senate. Not surprisingly, in this day of huge media attention to court proceedings, the presidential impeachment trial was covered live by television and became endless fodder for twenty-four-hour-news channels. Chief Justice William Rehnquist presided over the trial. The House “managers” (i.e., prosecutors) of the case are on the left, the president’s lawyers on the right.

Source: http://en.wikipedia.org/wiki/File:Senate_in_session.jpg.

Much of the public finds impeachment a standard part of the political system. For example, a June 2005 Zogby poll found that 42 percent of the public agreed with the statement “If President Bush did not tell the truth about his reasons for going to war with Iraq, Congress should consider holding him accountable through impeachment.”Polling Report, http://www.pollingreport.com/bush.htm, accessed July 7, 2005.

Impeachment can be a threat to presidents who chafe at congressional opposition or restrictions. All three impeached presidents had been accused by members of Congress of abuse of power well before allegations of law-breaking. Impeachment is handy because it refers only vaguely to official misconduct: “treason, bribery, or other high crimes and misdemeanors.”

From Congress’s perspective, impeachment can work. Nixon resigned because he knew he would be removed from office. Even presidential acquittals help Congress out. Impeachment forced Johnson to pledge good behavior and thus “succeeded in its primary goal: to safeguard Reconstruction from presidential obstruction.”Michael Les Benedict, The Impeachment and Trial of Andrew Johnson (New York: Norton, 1973), 139. Clinton had to go out of his way to assuage congressional Democrats, who had been far from content with a number of his initiatives; by the time the impeachment trial was concluded, the president was an all-but-lame duck.

Judicial Limitations on Presidential Power

Presidents claim inherent powersPresidential prerogatives claimed by presidents as implied by either the office of the president itself or the provisions of the Constitution. not explicitly stated but that are intrinsic to the office or implied by the language of the Constitution. They rely on three key phrases. First, in contrast to Article I’s detailed powers of Congress, Article II states that “The Executive Power shall be vested in a President.” Second, the presidential oath of office is spelled out, implying a special guardianship of the Constitution. Third, the job of ensuring that “the Laws be faithfully executed” can denote a duty to protect the country and political system as a whole.

Ultimately, the Supreme Court can and does rule on whether presidents have inherent powers. Its rulings have both expanded and limited presidential power. For instance, the justices concluded in 1936 that the president, the embodiment of the United States outside its borders, can act on its behalf in foreign policy.

But the court usually looks to congressional action (or inaction) to define when a president can invoke inherent powers. In 1952, President Harry Truman claimed inherent emergency powers during the Korean War. Facing a steel strike he said would interrupt defense production, Truman ordered his secretary of commerce to seize the major steel mills and keep production going. The Supreme Court rejected this move: “the President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.”Respectively, United States v. Curtiss-Wright Export Corp, 299 US 304 (1936); Youngstown Sheet & Tube Company v. Sawyer, 343 US 579 (1952).

The Vice Presidency

Only two positions in the presidency are elected: the president and vice president. With ratification of the Twenty-Fifth Amendment in 1967, a vacancy in the latter office may be filled by the president, who appoints a vice president subject to majority votes in both the House and the Senate. This process was used twice in the 1970s. Vice President Spiro Agnew resigned amid allegations of corruption; President Nixon named House Minority Leader Gerald Ford to the post. When Nixon resigned during the Watergate scandal, Ford became president—the only person to hold the office without an election—and named former New York Governor Nelson Rockefeller vice president.

The vice president’s sole duties in the Constitution are to preside over the Senate and cast tie-breaking votes, and to be ready to assume the presidency in the event of a vacancy or disability. Eight of the forty-three presidents had been vice presidents who succeeded a dead president (four times from assassinations). Otherwise, vice presidents have few official tasks. The first vice president, John Adams, told the Senate, “I am Vice President. In this I am nothing, but I may be everything.” More earthily, FDR’s first vice president, John Nance Garner, called the office “not worth a bucket of warm piss.”

In recent years, vice presidents are more publicly visible and have taken on more tasks and responsibilities. Ford and Rockefeller began this trend in the 1970s, demanding enhanced day-to-day responsibilities and staff as conditions for taking the job. Vice presidents now have a West Wing office, are given prominent assignments, and receive distinct funds for a staff under their control parallel to the president’s staff.Paul C. Light, Vice-Presidential Power: Advice and Influence in the White House (Baltimore: Johns Hopkins University Press, 1984).

Arguably the most powerful occupant of the office ever was Dick Cheney. This former doctoral candidate in political science (at the University of Wisconsin) had been a White House chief of staff, member of Congress, and cabinet secretary. He possessed an unrivaled knowledge of the power relations within government and of how to accumulate and exercise power. As George W. Bush’s vice president, he had access to every cabinet and subcabinet meeting he wanted to attend, chaired the board charged with reviewing the budget, took on important issues (security, energy, economy), ran task forces, was involved in nominations and appointments, and lobbied Congress.Barton Gellman and Jo Becker, “Angler: The Cheney Vice Presidency,” Washington Post, June 24, 2007, A1.

The Executive Office of the President

The Executive Office of the President (EOP)An umbrella organization started in 1939 by Franklin D. Roosevelt for various presidential staff agencies, many established by law. is an umbrella organization encompassing all presidential staff agencies. Most offices in the EOP, such as the Office of the Vice President, the National Security Council, and the Office of Management and Budget, are established by law; some positions require Senate confirmation.

Inside the EOP is the White House Office (WHO)An organization within the EOP that contains the president’s personal advisors and staffers.. It contains the president’s personal staff of assistants and advisors; most are exempt from Congress’s purview. Though presidents have a free hand with the personnel and structure of the WHO, its organization has been the same for decades. Starting with Nixon in 1969, each president has named a chief of staff to head and supervise the White House staff, a press secretary to interact with the news media, and a director of communication to oversee the White House message. The national security advisor is well placed to become the most powerful architect of foreign policy, rivaling or surpassing the secretary of state. New offices, such as President Bush’s creation of an office for faith-based initiatives, are rare; such positions get placed on top of or alongside old arrangements.

Even activities of a highly informal role such as the first lady, the president’s spouse, are standardized. It is no longer enough for them to host White House social events. They are brought out to travel and campaign. They are presidents’ intimate confidantes, have staffers of their own, and advocate popular policies (e.g., Lady Bird Johnson’s highway beautification, Nancy Reagan’s antidrug crusade, and Barbara Bush’s literacy programs). Hillary Rodham Clinton faced controversy as first lady by defying expectations of being above the policy fray; she was appointed by her husband to head the task force to draft a legislative bill for a national health-care system. Clinton’s successor, Laura Bush, returned the first ladyship to a more social, less policy-minded role. Michelle Obama’s cause is healthy eating. She has gone beyond advocacy to having Walmart lower prices on the fruit and vegetables it sells and reducing the amount of fat, sugar, and salt in its foods.

Bureaucratizing the Presidency

The media and the public expect presidents to put their marks on the office and on history. But “the institution makes presidents as much if not more than presidents make the institution.”Lyn Ragsdale and John J. Theis III, “The Institutionalization of the American Presidency, 1924–92,” American Journal of Political Science 41, no. 4 (October 1997): 1280–1318 at 1316. See also John P. Burke, The Institutional Presidency, 2nd ed. (Baltimore: Johns Hopkins University Press, 2000).

The presidency became a complex institution starting with FDR, who was elected to four terms during the Great Depression and World War II. Prior to FDR, presidents’ staffs were small. As presidents took on responsibilities and jobs, often at Congress’s initiative, the presidency grew and expanded.

Not only is the presidency bigger since FDR, but the division of labor within an administration is far more complex. Fiction and nonfiction media depict generalist staffers reporting to the president, who makes the real decisions. But the WHO is now a miniature bureaucracy. The WHO’s first staff in 1939 consisted of eight generalists: three secretaries to the president, three administrative assistants, a personal secretary, an executive clerk. Since the 1980s, the WHO has consisted of around eighty staffers; almost all either have a substantive specialty (e.g., national security, women’s initiatives, environment, health policy) or emphasize specific activities (e.g., White House legal counsel, director of press advance, public liaison, legislative liaison, chief speechwriter, director of scheduling). The White House Office adds another organization for presidents to direct—or lose track of.

The large staff in the White House, and the Old Executive Office Building next door, is no guarantee of a president’s power. These staffers “make a great many decisions themselves, acting in the name of the president. In fact, the majority of White House decisions—all but the most crucial—are made by presidential assistants.”John H. Kessel, Presidents, the Presidency, and the Political Environment (Washington, DC: CQ Press, 2001), 2.

Most of these labor in anonymity unless they make impolitic remarks. For example, two of President Bush’s otherwise obscure chief economic advisors got into hot water, one for (accurately) predicting that the cost of war in Iraq might top $200 billion, another for praising the outsourcing of jobs.Edmund L. Andrews, “Economics Adviser Learns the Principles of Politics,” New York Times, February 26, 2004, C4. Relatively few White House staffers—the chief of staff, the national security advisor, the press secretary—become household names in the news, and even they are quick to be quoted saying, “as the president has said” or “the president decided.” But often what presidents say or do is what staffers told or wrote for them to say or do (see Note 13.13 "Comparing Content").

Legislative Liaison

Presidents aim at legislative accomplishments by negotiating with legislators directly or through their legislative liaisonNow called the Office of Legislative Affairs, an office consisting of presidential staffers whose job is to interact with and lobby members of Congress. officers: White House staffers assigned to deal with Congress who provide a conduit from president to Congress and back again. These staffers convey presidential preferences and pressure members of Congress; they also pass along members’ concerns to the White House. They count votes, line up coalitions, and suggest times for presidents to rally fellow party members. And they try to cut deals.

Legislative liaison focuses less on twisting arms than on maintaining “an era of good feelings” with Congress. Some favors are large: supporting an appropriation that benefits members’ constituencies; traveling to members’ home turf to help them raise funds for reelection; and appointing members’ cronies to high office. Others are small: inviting them up to the White House, where they can talk with reporters; sending them autographed photos or extra tickets for White House tours; and allowing them to announce grants. Presidents hope the cordiality will encourage legislators to return the favor when necessary.This section relies on Kenneth Collier, Between the Branches: The White House Office of Legislative Affairs (Pittsburgh: University of Pittsburgh Press, 1997).

Such good feelings are tough to maintain when presidents and the opposition party espouse conflicting policies, especially when that party has a majority in one or both chambers of Congress or both sides adopt take-it-or-leave-it stances.

The Veto

When Congress sends a bill to the White House, a president can return it with objections.This section relies most on Charles M. Cameron, Veto Bargaining: Presidents and the Politics of Negative Power (New York: Cambridge University Press, 2000); see also Robert J. Spitzer, The Presidential Veto: Touchstone of the American Presidency (Albany: State University of New York Press, 1988). This vetoThe president’s power to reject a bill by not signing it into law.—Latin for “I forbid”—heightens the stakes. Congress can get its way only if it overridesThe congressional power to enact legislation over a president’s veto by a two-thirds majority in each chamber. the veto with two-thirds majorities in each chamber. Presidents who use the veto can block almost any bill they dislike; only around 4 percent of all vetoes have ever been successfully overridden.See Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 1999–2000 (Washington, DC: CQ Press, 1998), table 6-9. The threat of a veto can be enough to get Congress to enact legislation that presidents prefer.

The veto does have drawbacks for presidents:

• Vetoes alienate members of Congress who worked hard crafting a bill. So vetoes are most used as a last resort. After the 1974 elections, Republican President Ford faced an overwhelmingly Democratic Congress. A Ford legislative liaison officer recalled, “We never deliberately sat down and made the decision that we would veto sixty bills in two years.…It was the only alternative.”Quoted in Paul C. Light, The President’s Agenda: Domestic Policy Choice from Kennedy to Clinton, 3rd ed. (Baltimore: Johns Hopkins University Press, 1999), 112.
• The veto is a blunt instrument. It is useless if Congress does not act on legislation in the first place. In his 1993 speech proposing health-care reform, President Clinton waved a pen and vowed to veto any bill that did not provide universal coverage. Such a threat meant nothing when Congress did not pass any reform. And unlike governors of most states, presidents lack a line-item vetoThe power, available to most state governors but not to the president, to reject parts of a bill., which allows a chief executive to reject parts of a bill. Congress sought to give the president this power in the late 1990s, but the Supreme Court declared the law unconstitutional.Clinton v. City of New York, 524 US 427 (1998). Presidents must take or leave bills in their totality.
• Congress can turn the veto against presidents. For example, it can pass a popular bill—especially in an election year—and dare the president to reject it. President Clinton faced such “veto bait” from the Republican Congress when he was up for reelection in 1996. The Defense of Marriage Act, which would have restricted federal recognition of marriage to opposite-sex couples, was deeply distasteful to lesbians and gay men (a key Democratic constituency) but strongly backed in public opinion polls. A Clinton veto could bring blame for killing the bill or provoke a humiliating override. Signing it ran the risk of infuriating lesbian and gay voters. Clinton ultimately signed the legislation—in the middle of the night with no cameras present.
• Veto threats can backfire. After the Democrats took over the Senate in mid-2001, they moved the “patients’ bill of rights” authorizing lawsuits against health maintenance organizations to the top of the Senate agenda. President Bush said he would veto the bill unless it incorporated strict limits on rights to sue and low caps on damages won in lawsuits. Such a visible threat encouraged a public perception that Bush was opposed to any patients’ bill of rights, or even to patients’ rights at all.Frank Bruni, “Bush Strikes a Positive Tone on a Patients’ Bill of Rights,” New York Times, July 10, 2001, A12. Veto threats thus can be ineffective or create political damage (or, as in this case, both).

Savvy presidents use “vetoes not only to block legislation but to shape it.…Vetoes are not fatal bullets but bargaining ploys.”Charles M. Cameron, Veto Bargaining: Presidents and the Politics of Negative Power (New York: Cambridge University Press, 2000), 171. Veto threats and vetoing ceremonies become key to presidential communications in the news, which welcomes the story of Capitol Hill-versus-White House disputes, particularly under divided government. In 1996, President Clinton faced a tough welfare reform bill from a Republican Congress whose leaders dared him to veto the bill so they could claim he broke his 1992 promise to “end welfare as we know it.” Clinton vetoed the first bill; Republicans reduced the cuts but kept tough provisions denying benefits to children born to welfare recipients. Clinton vetoed this second version; Republicans shrank the cuts again and reduced the impact on children. Finally, Clinton signed the bill—and ran ads during his reelection campaign proclaiming how he had “ended welfare as we know it.”

Signing Statements

In a signing statementThe president claims the right to ignore or refuse to enforce laws, parts of laws, or provisions of appropriations bills that Congress has enacted and he has signed into law., the president claims the right to ignore or refuse to enforce laws, parts of laws, or provisions of appropriations bills even though Congress has enacted them and he has signed them into law. This practice was uncommon until developed during President Ronald Reagan’s second term. It escalated under President George W. Bush, who rarely exercised the veto but instead issued almost 1,200 signing statements in eight years—about twice as many as all his predecessors combined. As one example, he rejected the requirement that he report to Congress on how he had provided safeguards against political interference in federally funded research. He justified his statements on the “inherent” power of the commander in chief and on a hitherto obscure doctrine called the unitary executive, which holds that the executive branch can overrule Congress and the courts on the basis of the president’s interpretation of the Constitution.

President Obama ordered executive officials to consult with the attorney general before relying on any of President Bush’s signing statements to bypass a law. Yet he initially issued some signing statements himself. Then, to avoid clashing with Congress, he refrained from doing so. He did claim that the executive branch could bypass what he deemed to be unconstitutional restraints on executive power. But he did not invoke the unitary executive theory.Charlie Savage, “Obama’s Embrace of a Bush Tactic Riles Congress,” New York Times, August 9, 2009, A1; and Charlie Savage, “Obama Takes a New Route to Opposing Parts of Laws,” New York Times, January 9, 2010, A9.

Presidential Scorecards in Congress

How often do presidents get their way on Capitol Hill? On congressional roll call votes, Congress goes along with about three-fourths of presidential recommendations; the success rate is highest earlier in the term.George C. Edwards III, At the Margins: Presidential Leadership of Congress (New Haven, CT: Yale University Press, 1989); Jon R. Bond and Richard Fleisher, The President in the Legislative Arena (Chicago: University of Chicago Press, 1990); and Mark A. Peterson, Legislating Together: The White House and Capitol Hill from Eisenhower to Reagan (Cambridge, MA: Harvard University Press, 1990). For overall legislative productivity, the classic starting point is David R. Mayhew’s Divided We Govern: Party Control, Lawmaking, and Investigations, 1946–1990 (New Haven, CT: Yale University Press, 1991). Even on controversial, important legislation for which they expressed a preference well in advance of congressional action, presidents still do well. Congress seldom ignores presidential agenda items entirely. One study estimates that over half of presidential recommendations are substantially reflected in legislative action.Mark A. Peterson, Legislating Together: The White House and Capitol Hill from Eisenhower to Reagan (Cambridge, MA: Harvard University Press, 1990); and Andrew Rudalevige, Managing the President’s Program: Presidential Leadership and Legislative Policy Formulation (Princeton, NJ: Princeton University Press, 2002), 136.

Can and do presidents lead Congress, then? Not quite. Most presidential success is determined by Congress’s partisan and ideological makeup. Divided government and party polarization on Capitol Hill have made Congress more willing to disagree with the president. So recent presidents are less successful even while being choosier about bills to endorse. Eisenhower, Kennedy, and Johnson staked out positions on well over half of congressional roll call votes. Their successors have taken positions on fewer than one-fourth of them—especially when their party did not control Congress. “Presidents, wary of an increasingly independent-minded congressional membership, have come to actively support legislation only when it is of particular importance to them, in an attempt to minimize defeat.”Lyn Ragsdale, Vital Statistics on the Presidency, 3rd ed. (Washington, DC: CQ Press, 2008), 360. See also Steven A. Shull and Thomas C. Shaw, Explaining Congressional-Presidential Relations: A Multiple Perspective Approach (Albany: State University of New York Press, 1999), chap. 4.

Appointment Powers

Presidents both hire and (with the exception of regulatory commissions) fire executive officers. They also appoint ambassadors, the members of independent agencies, and the judiciary.See David E. Lewis, The Politics of Presidential Appointments: Political Control and Bureaucratic Performance (Princeton, NJ: Princeton University Press, 2008); and G. Calvin Mackenzie, ed., Innocent until Nominated: The Breakdown of the Presidential Appointments Process, ed. G. Calvin Mackenzie (Washington, DC: Brookings Institution Press, 2001).

The months between election and inauguration are consumed by the need to rapidly assemble a cabinetThe group of advisors to presidents made up of the secretaries of departments (e.g., secretary of defense) and the heads of agencies given cabinet-level status by the president., a group that reports to and advises the president, made up of the heads of the fourteen executive departments and whatever other positions the president accords cabinet-level rank. Finding “the right person for the job” is but one criterion. Cabinet appointees overwhelmingly hail from the president’s party; choosing fellow partisans rewards the winning coalition and helps achieve policy.Jeffrey E. Cohen, The Politics of the U.S. Cabinet: Representation in the Executive Branch, 1789–1984 (Pittsburgh, PA: University of Pittsburgh Press, 1988). Presidents also try to create a team that, in Clinton’s phrase, “looks like America.” In 1953, President Dwight Eisenhower was stung by the news media’s joke that his first cabinet—all male, all white—consisted of “nine millionaires and a plumber” (the latter was a union official, a short-lived labor secretary). By contrast, George W. Bush’s and Barack Obama’s cabinets had a generous complement of persons of color and women—and at least one member of the other party.

These presidential appointees must be confirmed by the Senate. If the Senate rarely votes down a nominee on the floor, it no longer rubber-stamps scandal-free nominees. A nominee may be stopped in a committee. About one out of every twenty key nominations is never confirmed, usually when a committee does not schedule it for a vote.Glen S. Kurtz, Richard Fleisher, and Jon R. Bond, “From Abe Fortas to Zoë Baird: Why Some Presidential Nominations Fail in the Senate,” American Political Science Review 92 (December 1998): 871–81.

Confirmation hearings are opportunities for senators to quiz nominees about pet projects of interest to their states, to elicit pledges to testify or provide information, and to extract promises of policy actions.G. Calvin Mackenzie, The Politics of Presidential Appointments (New York: Free Press, 1981), especially chap. 7. To win confirmation, cabinet officers pledge to be responsive and accountable to Congress. Subcabinet officials and federal judges, lacking the prominence of cabinet and Supreme Court nominees, are even more belatedly nominated and more slowly confirmed. Even senators in the president’s party routinely block nominees to protest poor treatment or win concessions.

As a result, presidents have to wait a long time before their appointees take office. Five months into President George W. Bush’s first term, one study showed that of the 494 cabinet and subcabinet positions to fill, under half had received nominations; under one-fourth had been confirmed.James Dao, “In Protest, Republican Senators Hold Up Defense Confirmations,” New York Times, May 10, 2001, A20; and Crystal Nix Hines, “Lag in Appointments Strains the Cabinet,” New York Times, June 14, 2001, A20. One scholar observed, “In America today, you can get a master’s degree, build a house, bicycle across country, or make a baby in less time than it takes to put the average appointee on the job.”G. Calvin Mackenzie, “The State of the Presidential Appointments Process,” in Innocent Until Nominated: The Breakdown of the Presidential Appointments Process, ed. G. Calvin Mackenzie (Washington, DC: Brookings Institution Press, 2001), 1–49 at 40–41. With presidential appointments unfilled, initiatives are delayed and day-to-day running of the departments is left by default to career civil servants.

No wonder presidents can, and increasingly do, install an acting appointee or use their power to make recess appointments.G. Calvin Mackenzie, “The State of the Presidential Appointments Process,” in Innocent Until Nominated: The Breakdown of the Presidential Appointments Process (Washington, DC: Brookings Institution Press, 2001), 35. But such unilateral action can produce a backlash. In 2004, two nominees for federal court had been held up by Democratic senators; when Congress was out of session for a week, President Bush named them to judgeships in recess appointments. Furious Democrats threatened to filibuster or otherwise block all Bush’s judicial nominees. Bush had no choice but to make a deal that he would not make any more judicial recess appointments for the rest of the year.Neil A. Lewis, “Deal Ends Impasse over Judicial Nominees,” New York Times, May 19, 2004, A1.

Executive Orders

Presidents make policies by executive ordersDirectives to administrators in the executive branch on how to implement legislation already enacted; courts treat them as having the status of law, but they may be superseded by congressional legislation..Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power (Princeton, NJ: Princeton University Press, 2001). This power comes from the constitutional mandate that they “take care that the laws be faithfully executed.”

Executive orders are directives to administrators in the executive branch on how to implement legislation. Courts treat them as equivalent to laws. Dramatic events have resulted from executive orders. Some famous executive orders include Lincoln’s Emancipation Proclamation, Franklin D. Roosevelt’s closing the banks to avoid runs on deposits and his authorizing internment of Japanese Americans during World War II, Truman’s desegregation of the armed forces, Kennedy’s establishment of the Peace Corps, and Nixon’s creation of the Environmental Protection Agency. More typically, executive orders reorganize the executive branch and impose restrictions or directives on what bureaucrats may or may not do. The attraction of executive orders was captured by one aide to President Clinton: “Stroke of the pen. Law of the land. Kind of cool.”Paul Begala, quoted in James Bennet, “True to Form, Clinton Shifts Energies Back to U.S. Focus,” New York Times, July 5, 1998, 10. Related ways for presidents to try to get things done are by memoranda to cabinet officers, proclamations authorized by legislation, and (usually secret) national security directives.Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action (Lawrence: University Press of Kansas, 2002).

Executive orders are imperfect for presidents; they can be easily overturned. One president can do something “with the stroke of a pen”; the next can easily undo it. President Reagan’s executive order withholding American aid to international population control agencies that provide abortion counseling was rescinded by an executive order by President Clinton in 1993, then reinstated by another executive order by President Bush in 2001—and rescinded once more by President Obama in 2009. Moreover, since executive orders are supposed to be a mere execution of what Congress has already decided, they can be superseded by congressional action.

War Powers

Opportunities to act on behalf of the entire nation in international affairs are irresistible to presidents. Presidents almost always gravitate toward foreign policy as their terms progress. Domestic policy wonk Bill Clinton metamorphosed into a foreign policy enthusiast from 1993 to 2001. Even prior to 9/11 the notoriously untraveled George W. Bush was undergoing the same transformation. President Obama has been just as if not more involved in foreign policy than his predecessors.

Congress—as long as it is consulted—is less inclined to challenge presidential initiatives in foreign policy than in domestic policy. This idea that the president has greater autonomy in foreign than domestic policy is known as the “Two Presidencies Thesis.”See Barbara Hinckley, Less than Meets the Eye: Foreign Policy Making and the Myth of the Assertive Congress (Chicago: University of Chicago Press, 1994). Such deference seems largely limited to presidents’ own initiatives. See Richard Fleisher, Jon R. Bond, Glen S. Krutz, and Stephen Hanna, “The Demise of the Two Presidencies,” American Politics Quarterly 28 (2000): 3–25; and Andrew Rudalevige, Managing the President’s Program: Presidential Leadership and Legislative Policy Formulation (Princeton, NJ: Princeton University Press, 2002),148–49.

War powers provide another key avenue for presidents to act unilaterally. After the 9/11 attacks, President Bush’s Office of Legal Counsel to the US Department of Justice argued that as commander in chief President Bush could do what was necessary to protect the American people.John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (Chicago: University of Chicago Press, 2005).

Since World War II, presidents have never asked Congress for (or received) a declaration of war. Instead, they rely on open-ended congressional authorizations to use force (such as for wars in Vietnam and “against terrorism”), United Nations resolutions (wars in Korea and the Persian Gulf), North American Treaty Organization (NATO) actions (peacekeeping operations and war in the former Yugoslavia), and orchestrated requests from tiny international organizations like the Organization of Eastern Caribbean States (invasion of Grenada). Sometimes, presidents amass all these: in his last press conference before the start of the invasion of Iraq in 2003, President Bush invoked the congressional authorization of force, UN resolutions, and the inherent power of the president to protect the United States derived from his oath of office.

Congress can react against undeclared wars by cutting funds for military interventions. Such efforts are time consuming and not in place until long after the initial incursion. But congressional action, or its threat, did prevent military intervention in Southeast Asia during the collapse of South Vietnam in 1975 and sped up the withdrawal of American troops from Lebanon in the mid-1980s and Somalia in 1993.William G. Howell and Jon C. Pevehouse, While Dangers Gather: Congressional Checks on Presidential War Powers (Princeton, NJ: Princeton University Press, 2007).

Congress’s most concerted effort to restrict presidential war powers, the War Powers Act, which passed over President Nixon’s veto in 1973, may have backfired. It established that presidents must consult with Congress prior to a foreign commitment of troops, must report to Congress within forty-eight hours of the introduction of armed forces, and must withdraw such troops after sixty days if Congress does not approve. All presidents denounce this legislation. But it gives them the right to commit troops for sixty days with little more than requirements to consult and report—conditions presidents often feel free to ignore. And the presidential prerogative under the War Powers Act to commit troops on a short-term basis means that Congress often reacts after the fact. Since Vietnam, the act has done little to prevent presidents from unilaterally launching invasions.Louis Fisher, Presidential War Power (Lawrence: University of Kansas Press, 1995); Barbara Hinckley, Less than Meets the Eye: Foreign Policy Making and the Myth of the Assertive Congress (Chicago: University of Chicago Press, 1994), chap. 4.

President Obama did not seek Congressional authorization before ordering the US military to join attacks on the Libyan air defenses and government forces in March 2011. After the bombing campaign started, Obama sent Congress a letter contending that as commander in chief he had constitutional authority for the attacks. The White House lawyers distinguished between this limited military operation and a war.

Public Approval

For over fifty years, pollsters have asked survey respondents, “Do you approve or disapprove of the way that the president is handling his job?” Over time there has been variation from one president to the next, but the general pattern is unmistakable.James A. Stimson, “Public Support for American Presidents: A Cyclical Model,” Public Opinion Quarterly 40 (1976): 1–21; Samuel Kernell, “Explaining Presidential Popularity,” American Political Science Review 72 (1978): 506–22; and Richard A. Brody, Assessing the President: The Media, Elite Opinion, and Public Support (Stanford, CA: Stanford University Press, 1991). Approval starts out fairly high (near the percentage of the popular vote), increases slightly during the honeymoon, fades over the term, and then levels off. Presidents differ largely in the rate at which their approval rating declines. President Kennedy’s support eroded only slightly, as opposed to the devastating drops experienced by Ford and Carter. Presidents in their first terms are well aware that, if they fall below 50 percent, they are in danger of losing reelection or of losing allies in Congress in the midterm elections.

Events during a president’s term—and how the news media frame them—drive approval ratings up or down. Depictions of economic hard times, drawn-out military engagements (e.g., Korea, Vietnam, and Iraq), unpopular decisions (e.g., Ford’s pardon of Nixon), and other bad news drag approval ratings lower. The main upward push comes from quick international interventions, as for President Obama after the killing of Osama bin Laden in 2011, or successfully addressing national emergencies, which boost a president’s approval for several months. Under such conditions, official Washington speaks more in one voice than usual, the media drop their criticism as a result, and presidents depict themselves as embodiments of a united America. The successful war against Iraq in 1991 pushed approval ratings for the elder Bush to 90 percent, exceeded only by the ratings of his son after 9/11. It may be beside the point whether the president’s decision was smart or a blunder. Kennedy’s press secretary, Pierre Salinger, later recalled how the president’s approval ratings actually climbed after Kennedy backed a failed invasion by Cuban exiles at the Bay of Pigs: “He called me into his office and he said, ‘Did you see that Gallup poll today?’ I said, ‘Yes.’ He said, ‘Do you think I have to continue doing stupid things like that to remain popular with the American people?’”Quoted in Daniel C. Hallin, ed., The Presidency, the Press and the People (La Jolla: University of California, San Diego, 1992), 21.

But as a crisis subsides, so too do official unity, tributes in the press, and the president’s lofty approval ratings. Short-term effects wane over the course of time. Bush’s huge boost from 9/11 lasted well into early 2003; he got a smaller, shorter lift from the invasion of Iraq in April 2003 and another from the capture of Saddam Hussein in December before dropping to levels perilously near, then below, 50 percent. Narrowly reelected in 2008, Bush saw his approval sink to new lows (around 30 percent) over the course of his second term.

Polls

Naturally and inevitably, presidents employ pollsters to measure public opinion. Poll data can influence presidents’ behavior, the calculation and presentation of their decisions and policies, and their rhetoric.Lawrence Jacobs and Robert Shapiro, Politicians Don’t Pander (Chicago: University of Chicago Press, 2000).

After the devastating loss of Congress to the Republicans midway through his first term, President Clinton hired public relations consultant Dick Morris to find widely popular issues on which he could take a stand. Morris used a “60 percent rule”: if six out of ten Americans were in favor of something, Clinton had to be too. Thus the Clinton White House crafted and adopted some policies knowing that they had broad popular support, such as balancing the budget and “reforming” welfare.

Even when public opinion data have no effects on a presidential decision, they can still be used to ascertain the best way to justify the policy or to find out how to present (i.e., spin) unpopular policies so that they become more acceptable to the public. Polls can identify the words and phrases that best sell policies to people. President George W. Bush referred to “school choice” instead of “school voucher programs,” to the “death tax” instead of “inheritance taxes,” and to “wealth-generating private accounts” rather than “the privatization of Social Security.” He presented reducing taxes for wealthy Americans as a “jobs” package.Joshua Green, “The Other War Room,” Washington Monthly 34, no. 4 (April 2002): 11–16; and Ben Fritz, Bryan Keefer, and Brendan Nyhan, All the President’s Spin: George W. Bush, the Media, and the Truth (New York: Touchstone, 2004).

Polls can even be used to adjust a president’s personal behavior. After a poll showed that some people did not believe that President Obama was a Christian, he attended services, with photographers in tow, at a prominent church in Washington, DC.

Press Conferences

In the best-known form of press conference, the president appears alone, usually before television cameras, to answer questions on the record from the assembled reporters who can ask anything on their minds for a given period of time (usually up to an hour). Presidents generally hold such press conferences when they need to respond to important issues or mounting criticism—or if they have been accused of avoiding direct questions from the press.

Press conferences allow presidents to dominate the news, pay obeisance to or at least acknowledge the importance of a free press, galvanize supporters, and try to placate opponents. Presidents, as much as reporters, control press conferences. They make opening statements. They choose who asks questions—at his first press conference President Obama recognized the presence of the new media by taking a question from a writer for the influential online-only news outlet the Huffington Post. They can recover from a tough question by finding someone to toss them a softball. Follow-up questions are not guaranteed. Presidents can run out the clock, blather on in evasive or convoluted language, and refuse to take or answer questions on a subject.Jarol B. Manheim, “The Honeymoon’s Over: The News Conference and the Development of Presidential Style,” Journal of Politics 41 (1979): 55–74.

Figure 13.5

The presidential press conference evolved from Franklin D. Roosevelt’s informal, off-the-record bull session in the Oval Office to a full-fledged staged event when President Kennedy invited television cameras to broadcast the conference live.

Source: Used with permission from Getty Images.

Nonetheless, press conferences have risks for presidents. Since reporters’ questions have become more challenging over time, presidents shy away from press conferences more and more.Steven Clayman and John Heritage, “Questioning Presidents: Deference and Adversarialness in the Press Conferences of Eisenhower and Reagan,” Journal of Communication 52 (2002): 749–75. Increasingly, they rely on joint press conferences, most often with foreign leaders. Such press conferences add questioners from another press corps, limit the number of questions to a handful, and reduce the amount of time for the president to answer questions.

Presidents favor ever more controlled interactions with reporters. Most typically, they make a brief statement or give a speech without answering questions, or pose in a photo opportunity, where they are seen but not heard. Controversial announcements may be made in writing so that television news has no damaging footage to air. “It is a rare day when the president is not seen by reporters. But it is also a rare day when his appearance is not a scripted one. The White House goal is to have the president publicly available, but to do so with his having as little vulnerability to error as the staff can fashion.”Martha Joynt Kumar, “The Daily White House Press Briefings: A Reflection of the Enduring Elements of a Relationship,” unpublished paper, April 1999, 9.

Press Secretary

The most visible member of a White House publicity apparatus—and the key person for reporters—is the presidential press secretary.Woody Klein, All the President’s Spokesmen (Westport, CT: Praeger, 2008). The press secretary is “responsible for creating and disseminating the official record of the president’s statements, announcements, reactions, and explanations.”Martha Joynt Kumar, Managing the President’s Message: The White House Communications Operation (Baltimore: Johns Hopkins University Press, 2007), 179. The press secretary has three constituencies with different expectations of him: “the president, White House staff, reporters and their news organizations.”Martha Joynt Kumar, Managing the President’s Message: The White House Communications Operation (Baltimore: Johns Hopkins University Press, 2007), 180.

In every presidency starting with Ronald Reagan’s, press secretaries begin their day with meetings with the central coordinator of policy and message, the White House chief of staff, and other senior staffers to study overnight news developments (a news summary is circulated each day to senior staff), forecast where stories are going, and review the president’s schedule. Press secretaries next prepare for their first interaction with reporters, the morning’s daily, less formal discussion known as the gaggleThe White House press secretary’s 9:30 a.m. meeting with reporters, neither formal nor public; an important “dry run” for the on-the-record afternoon briefing..See Howard Kurtz, Spin Cycle: Inside the Clinton Propaganda Machine (New York: Free Press, 1998), and Kumar, “Daily White House Press Briefings: A Reflection of the Enduring Elements of a Relationship,” unpublished paper, April 1999. Cameras are not allowed into the gaggle. Reporters use tape recorders only to gather information, not for sound bites.

The press secretary begins the gaggle by reviewing the president’s schedule before entering into a fast-moving question-and-answer session. The gaggle benefits reporters: it provides responses to overnight news, gives guidance for the workday ahead, reveals the line the White House is pushing and allows them to lobby for access to the president. The gaggle helps press secretaries too by enabling them to float ideas and slogans and, by hearing what’s on reporters’ minds, prepare for the afternoon briefing.

The press secretary leads this more official 12:30 p.m. briefing, which is as close as anything to a daily enunciation of White House policy. Here, cameras are allowed; the briefing is broadcast live on cable television if news is brewing. The session is transcribed and disseminated (electronically and on paper) to reporters at the White House and beyond. The press secretary spends the hours between the gaggle and the briefing looking for answers to questions raised (or anticipated) and checking with other spokespersons elsewhere in the administration, such as at the Departments of State and Defense.

Figure 13.6

The daily White House press briefing is a central event of the day for both reporters and press secretaries.

Source: Photo courtesy of the White House (Tina Hager), http://georgewbush-whitehouse.archives.gov/history/photoessays/pressbriefingroom/02-js.html.

Briefings do not always benefit the White House. The presence of television cameras sometimes pushes reporters to be—or act—tough and combative for viewers. Reporters try to throw the press secretary off balance or to elicit a juicy or embarrassing admission. Briefings offer reporters a rare chance to quiz officials on matters the White House would prefer not to discuss. Press secretaries are often unresponsive to reporters’ questions, stonewall, and repeat set phrases. During a single briefing when he was peppered by questions about President George W. Bush’s National Guard service, press secretary Scott McClellan dutifully uttered the phrase “The president met all his responsibilities” some thirty-eight times.

Office of Communications

The press secretary on the front line is not always the key public relations strategist. Richard Nixon was the first president to craft long-range communication strategies. A bevy of public relations veterans defined a White House priority or storyline, coordinated who said what, and planned public schedules of administration officials. They brought local reporters from outside Washington to the capital. The aim was to emphasize a single White House position, woo softer local news, and silence contrary messages in the administration.

Such tasks were given to the newly established Office of CommunicationsThe part of the White House Office devoted to long-term planning of communication, headed by the director of communications.—retained by all subsequent presidents. Directors of communications rarely interact with reporters on a regular basis; their job is to stress the big picture. Even when Nixon’s first successors, Gerald Ford and Jimmy Carter, pledged open and free interactions with reporters, they found they had to reopen the Office of Communications for central control of the all-important message.

Another lasting innovation of the Nixon presidency is the line of the dayThe issue or stance designated by the White House and sent to the remainder of the executive branch and to the media that day.. Specific topics and storylines are repeated throughout the administration as the focus for all discussion on that day. Presidents use the Office of Communications to centralize a marketing strategy on issues. They are often open about this. In 2002, White House Chief of Staff Andrew Card said the Bush administration waited until after Labor Day to lobby Congress to authorize war against Iraq because, in his words, “From a marketing point of view…you don’t introduce new products in August.”Quoted in Elisabeth Bumiller, “Bush Aides Set Strategy to Sell Policy on Iraq,” New York Times, September 7, 2002, A1.

“Manipulation by Inundation”

The public must be reached through the news media. Reagan’s election took such efforts to new heights. Like Nixon, Reagan downgraded the news conference in favor of stage-managed appearances. A press officer who worked for both presidents noted a crucial distinction. The Nixon administration was restrictive, but he said, “The Reagan White House came to the totally opposite conclusion that the media will take what we feed them. They’ve got to write their story every day.…Hand them a well-packaged, premasticated story in the format they want, they’ll go away. The phrase is ‘manipulation by inundation.’”Les Janka, quoted in Mark Hertsgaard, On Bended Knee: The Press and the Reagan Presidency (Boston: Houghton Mifflin Harcourt, 1988), 52.

Reagan’s lesson has been learned by subsequent presidents and media advisors. Presidents rarely have to “freeze out” given reporters (when officials do not return their calls). Staff do sometimes cajole and berate reporters, but frontal assaults against the press usually only occur in clear cases of journalistic bungling.

More typically, presidents and their staffs try to manage the news. Presidents cultivate reporters, columnists, and pundits: they host lunches, dine with them, and hold off-the-record sessions. The staff members anticipate what reporters will ask in briefings and prepare the president accordingly. They design events to meet news values of drama, color, and terseness. And they provide a wealth of daily, even hourly, information and images.

The End Run around White House Reporters

Inundation is not sufficient. George W. Bush was typical of all presidents when he groused in 2003 to a regional reporter, “There’s a sense that people in America aren’t getting the truth. I’m mindful of the filter through which some news travels, and sometimes you have to go over the heads of the filter and speak directly to the people.”Quoted in Elisabeth Bumiller, “Trying to Bypass the Good-News Filter,” New York Times, October 20, 2003, A12.

All new presidents try novel strategies to do an end run around what they always perceive to be a biased press. President Franklin D. Roosevelt relished behind-the-scenes Oval Office conferences to woo Democratic-leaning reporters (and bypass Republican-leaning editorial pages).

President Richard Nixon shunned press conferences and sought other ways to get his messages out, such as through star-struck local news. President Bill Clinton instituted cozy miniconferences with other world leaders and brought in local television weather reporters for a confab on global warming. Nowadays, the White House deals directly with the regional and local press, special-interest media, and ethnic news organizations.

Cooperation and Conflict

The relationship between the White House and its press corps is ongoing. The “village” feel to the newsbeat includes presidents and their staffers. But while this day-to-day continuity favors cooperation, the divergent interests and notions of the White House and reporters makes for a constant tension. Reporters do not like appearing as “mouthpieces” for presidents. They embrace the notion of acting as watchdogs and seek ways to present an independent and critical account whenever possible in their White House stories.

What reporters consider news and what presidents consider news are often at odds. Presidents love to speak at length, be alone at center stage, favor nuance if not ambiguity, and focus on questions of policy. Reporters like terse sound bites, dramatic conflict, clear-cut comments, and a new installment on how the president is doing politically.

Assembling the Story

Reagan’s first White House spokesperson, Larry Speakes, had a plaque on his desk that read: “You don’t tell us how to stage the news, and we won’t tell you how to cover it.” Though he was being playful, Speakes revealed how the White House and the press corps each control one part of the news.

The White House controls whether, when, how, and where White House officials will meet reporters and what information to release. Pictures and video of the president are packaged along with slogans that make a visual case regardless of the angle the reporter advances. Clinton’s aides affixed captions to the presidential podium during ceremonies to underscore the theme they wished to communicate. George W. Bush’s assistants went one better, crafting twenty different canvasses that could be placed behind him, each emblazoned with a motto of the day, such as “Protecting the Homeland” or “Corporate Responsibility.” Dan Bartlett, then Bush’s director of communication, defended such branding: “The message should be seen and read and understood on TV. It’s a good reinforcement.”Quoted in Anne E. Kornblut, “President Is Keeping His Messages Front and Center,” Boston Globe, July 23, 2002, A4.

But reporters take the raw material provided by presidential news operations and craft it into a coherent and dramatic story. In a typical television news story, the president’s words and images make up a tiny fraction of the allotted time. Television reporters add old video, interview critics in Congress, cite poll numbers, and give their own interpretations. Even on cable television news, which often airs presidential remarks live during the day, reporters and commentators will hash over and contest the White House “angle.” Presidential statements have a different effect once placed into the news media’s sometimes dramatically divergent context.

The dilemma for presidents, as Clinton’s press secretary Mike McCurry noted, is that “ninety percent of what happens at the White House is pure boredom.”Quoted in Andrew Miga, “White House Drama More Colorful than the Real White House,” Boston Herald, September 23, 1999, 3. Reporters need drama. If presidents do not fit the heroic roles of “decisive problem solver” and “representative of the nation,” they can be slotted into a less positive frame. Politics will displace policy; criticism and conflict overwhelm praise and unity. Even in presidents’ supposed “honeymoon” periods, critical coverage is not unknown. Presidents are, then, in the unenviable position of needing the news and being routinely in its spotlight without being able consistently to control the images of themselves and their policies in that news.