Gavin Howe
While the US president has a duty to take care that the laws be faithfully executed, they cannot make laws themselves. This means that the president must ensure that existing laws and the Constitution are upheld, but they cannot create new laws. The president can, however, make suggestions about things that should be new laws and use executive orders to direct the government to take specific actions to ensure the laws are executed faithfully. Executive orders cannot override federal laws and statutes, and they can be reversed by Congress or a future president.
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What You'll Learn
The president cannot make laws
Article II, Section 3 of the Constitution outlines several presidential duties, including the "Take Care Clause", which requires the president to "take care that the laws be faithfully executed". This clause grants the president broad enforcement authority, but it also limits their power by requiring them to execute the laws of Congress faithfully and not disregard them. The president can suggest new laws and can veto or sign bills passed by Congress, but they cannot make laws on their own.
Executive orders are a tool used by presidents to direct the government to take specific actions, but they cannot be used to override federal laws and statutes or to sidestep the checks and balances built into the Constitution. If a president issues an executive order that violates the Constitution or federal law, the courts can hold it to be unlawful, and Congress can enact a law to reverse it.
While the president has some discretion in how they enforce the law, they cannot interpret laws or decide how federal money will be spent. The president's power to enforce the law is primarily exercised through their subordinates in the executive branch, such as department heads, who have the authority to implement orders as they see fit within the bounds of the law.
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The president can make executive orders
While the president cannot make laws, they do have the power to issue executive orders. These are written directives, signed by the president, that order the government to take specific actions to ensure "the laws be faithfully executed".
Article II of the US Constitution vests the president with executive power over the government, including the obligation to "take care that the laws be faithfully executed". This is known as the Faithful Execution Clause or the Take Care Clause. The president is also the "Commander in Chief of the Army and Navy of the United States", as stated in Article II, Section 2.
Executive orders are a powerful tool, with much the same power as federal law. They can be used to manage the operations of the federal government, including federal agencies and staff. For example, an executive order can tell federal agencies how to implement a statute. While Congress can declare a certain drug legal or illegal, the president can use an executive order to tell the Department of Justice whether prosecuting certain drug cases is a priority.
Executive orders cannot, however, override federal laws and statutes. They must be supported by the Constitution and cannot sidestep the checks and balances in place to ensure no branch of the government becomes more powerful than another. For example, the president cannot use an executive order to take on the power vested in Congress to pass new statutes or the power of the courts to invalidate certain laws as unconstitutional.
Executive orders can be an effective way to carry out policy while staying within the rule of law. However, they can also be misused. For example, President Trump's order rescinding Johnson's order concerning civil rights obligations of federal contractors undermined civil rights protections without overruling any statute governing equal protection in employment.
Every US president since George Washington has issued executive orders, with most modern presidents issuing hundreds during their presidency.
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The president can veto bills
The US Constitution grants the president the power to veto bills. This power is derived from the Presentment Clause, which states that any bill passed by the House of Representatives and the Senate must be presented to the President of the United States for approval. If the president does not approve of a bill, he or she has the authority to veto it, preventing it from becoming a law.
The process of vetoing a bill involves the president returning the bill to the Chamber in which it originated within ten days (excluding Sundays) of when the bill is presented to them. The president must also provide their objections to the bill, which are then entered into the journal of the House. The bill is then reconsidered by the House, and if two-thirds of the members agree to pass it, it is sent to the other House for similar reconsideration. Only if two-thirds of both the House and the Senate vote to override the veto does the bill become law.
The pocket veto is an exception to the regular veto process. A pocket veto occurs when Congress adjourns before the ten-day period for returning a bill has elapsed, and the president does not sign the bill. In this case, the president can prevent the bill from becoming law without returning it to the originating Chamber. The legislature must then reintroduce the bill and enact it again for it to become law.
While the president has the power to veto bills, they cannot use this power to override federal laws and statutes. The Constitution grants Congress the authority to pass new statutes, and a presidential veto cannot circumvent this process. Additionally, the president cannot use executive orders to sidestep the checks and balances in the Constitution or take over powers from other branches of government.
It is important to note that the president's veto power is not unlimited, and it is subject to checks and balances within the US political system. Congress can override a presidential veto if two-thirds of both the House and the Senate vote to do so. Additionally, the Supreme Court has held that once a bill becomes law, the president has no authority to repeal it.
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The president can make treaties with Senate approval
The US Constitution provides that the president "shall have the power, by and with the advice and consent of the Senate, to make treaties, provided that two-thirds of the Senators present concur" (Article II, Section 2). Treaties are binding agreements between nations and become part of international law. They have the force of federal legislation, forming part of what the Constitution calls "the supreme Law of the Land".
The president is the final actor in expressing the United States' assent to be bound to a treaty. However, additional action by Congress may be necessary to implement the treaty into domestic law. Once the parties to the treaty have completed the processes necessary to express their final assent to be bound, the president may proclaim the treaty and declare it to be in force by executive order.
The president has no obligation to ratify a Senate-approved treaty, and in some cases, the president has declined to do so. The Restatement of Foreign Relations Law of the United States is non-binding, but the Supreme Court has cited it on several occasions. After the Senate provides its advice and consent, the president determines whether to ratify or otherwise make the treaty on behalf of the United States. The president, not the Senate, has the final responsibility for completing the treaty-making process.
In some cases, when Senate leadership believed a treaty lacked sufficient support for approval, the Senate did not vote on the treaty, and it was eventually withdrawn by the president. In recent decades, presidents have frequently entered the United States into international agreements without the advice and consent of the Senate. These are called "executive agreements". Although not brought before the Senate for approval, executive agreements are still binding on the parties under international law.
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The president can remove executive officers
The US president has a certain degree of executive power over the government, as outlined in Article II of the Constitution. This includes the ability to issue executive orders, which are written directives signed by the president, ordering the government to take specific actions. However, it is important to note that the president cannot make laws, declare war, decide how federal money is spent, interpret laws, or choose Cabinet members without Senate approval.
When it comes to removing executive officers, the president does have some authority, but it is limited. The president can remove executive officers, but only for specific reasons and with certain restrictions. For example, in the case of Myers v. United States, the Court concluded that "Congress cannot reserve for itself the power of removal of an officer charged with executing the laws except by impeachment." This means that while Congress cannot remove an officer at will, the president can remove them through impeachment for reasons such as inefficiency, neglect of duty, or malfeasance in office.
In another case, Humphrey's Executor vs. United States, the Court upheld the independence of certain agencies and concluded that the president could only remove officers for "cause" rather than at will. This was further clarified in Morrison v. Olson, which sustained the independent counsel statute and reinforced the idea that Congress should not interfere with the president's exercise of executive power.
It is worth noting that the president's power to remove executive officers is not unlimited. Congress can create quasi-legislative or quasi-judicial agencies that act independently of executive control. These agencies are designed to maintain an attitude of independence from the president's will. Additionally, Congress generally cannot impose two layers of removal protection on a specific office, providing both superior and inferior officers with for-cause removal provisions.
In summary, while the president can remove executive officers, their power to do so is constrained by the Constitution, Congress, and the courts. The president must provide justifiable reasons for removal and respect the independence of certain agencies. These limitations ensure a balance of power between the executive and legislative branches of the US government.
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Frequently asked questions
No, the president cannot make any rule a law. The president's role is to ensure that the laws are "faithfully executed", which means they must ensure existing laws and the Constitution are upheld. The president can make suggestions about things that should be new laws, but Congress has the power to pass new statutes.
An executive order is a written directive, signed by the president, that orders the government to take specific actions to ensure “the laws be faithfully executed”. Executive orders cannot override federal laws and statutes, and they cannot be used to sidestep the checks and balances in the Constitution.
No, the 22nd Amendment restricts an individual to two four-year terms of service as president.
