Legislative powers




Article I, Section 1 of the Constitution vests all lawmaking power in Congress's hands, and Article 1, Section 6, Clause 2 prevents the president (and all other executive branch officers) from simultaneously being a member of Congress. Nevertheless, the modern presidency exerts significant power over legislation, both due to constitutional provisions and historical developments over time.

Signing and vetoing bills

The president's most significant legislative power derives from the Presentment Clause, which gives the President the power to veto any bill passed by Congress. While Congress can override a presidential veto, it requires a two-thirds vote of both houses, which is usually very difficult to achieve except for widely supported bipartisan legislation. The framers of the Constitution feared that Congress would seek to increase its power and enable a "tyranny of the majority," so giving the indirectly-elected president a veto was viewed as an important check on the legislative power. While George Washington believed the veto should only be used in cases where a bill was unconstitutional, it is now routinely used in cases where presidents have policy disagreements with a bill. The veto – or threat of a veto – has thus evolved to make the modern presidency a central part of the American legislative process.

Specifically, under the Presentment Clause, once a bill has been presented by Congress, the president has three options:

  1. Sign the legislation within ten days, excluding Sundays—the bill becomes law.
  2. Veto the legislation within the above timeframe and return it to the house of Congress from which it originated, expressing any objections—the bill does not become law, unless both houses of Congress vote to override the veto by a two-thirds vote.
  3. Take no action on the legislation within the above timeframe—the bill becomes law, as if the president had signed it, unless Congress is adjourned at the time, in which case it does not become law (a pocket veto).

In 1996, Congress attempted to enhance the president's veto power with the Line Item Veto Act. The legislation empowered the president to sign any spending bill into law while simultaneously striking certain spending items within the bill, particularly any new spending, any amount of discretionary spending, or any new limited tax benefit. Congress could then repass that particular item. If the president then vetoed the new legislation, Congress could override the veto by its ordinary means, a two-thirds vote in both houses. In Clinton v. City of New York, 524 U.S. 417 (1998), the U.S. Supreme Court ruled such a legislative alteration of the veto power to be unconstitutional.

Setting the agenda

For most of American history, candidates for president have sought election on the basis of a promised legislative agenda. Formally, Article II, Section 3, Clause 2 requires the president to recommend such measures to Congress which the president deems "necessary and expedient." This is done through the constitutionally-based State of the Union address, which usually outlines the president's legislative proposals for the coming year, and through other formal and informal communications with Congress.

The president can be involved in crafting legislation by suggesting, requesting, or even insisting that Congress enact laws he believes are needed. Additionally, he can attempt to shape legislation during the legislative process by exerting influence on individual members of Congress. Presidents possess this power because the Constitution is silent about who can write legislation, but the power is limited because only members of Congress can introduce legislation.

The president or other officials of the executive branch may draft legislation and then ask senators or representatives to introduce these drafts into Congress. Additionally, the president may attempt to have Congress alter proposed legislation by threatening to veto that legislation unless requested changes are made.

Promulgating regulations

Many laws enacted by Congress do not address every possible detail, and either explicitly or implicitly delegate powers of implementation to an appropriate federal agency. As the head of the executive branch, presidents control a vast array of agencies that can issue regulations with little oversight from Congress.

In the 20th century, critics charged that too many legislative and budgetary powers that should have belonged to Congress had slid into the hands of presidents. One critic charged that presidents could appoint a "virtual army of 'czars'—each wholly unaccountable to Congress yet tasked with spearheading major policy efforts for the White House". Presidents have been criticized for making signing statements when signing congressional legislation about how they understand a bill or plan to execute it. This practice has been criticized by the American Bar Association as unconstitutional. Conservative commentator George Will wrote of an "increasingly swollen executive branch" and "the eclipse of Congress".

Convening and adjourning Congress

To allow the government to act quickly in case of a major domestic or international crisis arising when Congress is not in session, the president is empowered by Article II, Section 3 of the Constitution to call a special session of one or both houses of Congress. Since John Adams first did so in 1797, the president has called the full Congress to convene for a special session on 27 occasions. Harry S. Truman was the most recent to do so in July 1948 (the so-called "Turnip Day Session"). In addition, prior to ratification of the Twentieth Amendment in 1933, which brought forward the date on which Congress convenes from December to January, newly inaugurated presidents would routinely call the Senate to meet to confirm nominations or ratify treaties. In practice, the power has fallen into disuse in the modern era as Congress now formally remains in session year-round, convening pro forma sessions every three days even when ostensibly in recess. Correspondingly, the president is authorized to adjourn Congress if the House and Senate cannot agree on the time of adjournment; no president has ever had to exercise this power.

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