Keith Mack
The US President has a duty to ensure the laws are executed faithfully, but this does not mean they are responsible for personally executing the laws. The President's power to remove or supervise subordinates wielding executive power means they can ensure the laws are executed without having to enforce them personally. The President has a general duty to supervise executive departments, but they cannot be required to oversee the day-to-day activities of each department. The President has wide-ranging discretion on how to enforce particular laws, but when they use their enforcement power to invalidate or rewrite statutes, questions arise as to whether they are meeting their take care obligations. Presidents may refuse to enforce laws on policy grounds, but aggrieved parties could seek to obtain Writs of Mandamus for any refusal by the President to execute any shall duties.
| Characteristics | Values |
|---|---|
| Refuse to enforce a law | Yes, but this is a complicated issue. Presidents have wide-ranging discretion on how to enforce particular laws, and may take policy considerations into account. However, they cannot breach federal law or order subordinates to do so. |
| Be held in contempt of court | No, the president is not bound by court injunctions against the federal government. However, they can be accused of ignoring or defying court orders. |
| Veto a bill | Yes, but Congress can override this with a two-thirds majority vote in both chambers. |
| Sign a bill into law | Yes, and if they do not sign or veto a bill within 10 days, it automatically becomes law. |
| Make a treaty | Yes, but with the approval of the Senate. |
| Make suggestions about new laws | Yes. |
| Represent the nation in talks with foreign countries | Yes. |
| Enforce laws passed by Congress | Yes. |
| Act as Commander-in-Chief during a war | Yes. |
| Call out troops to protect the nation | Yes. |
| Grant pardons | Yes. |
| Nominate Cabinet members, Supreme Court Justices, and other high officials | Yes, but with Senate approval. |
| Appoint ambassadors | Yes. |
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What You'll Learn
Non-enforcement of laws
While the US President does have the power to enforce the laws passed by Congress, they cannot make laws, declare war, decide how federal money is spent, interpret laws, or choose Cabinet members or Supreme Court Justices without Senate approval.
Presidents have, and should have, wide-ranging discretion on how to enforce particular laws. Enforcing every federal law against every offender would be impossible. However, serious questions arise when Presidents use their enforcement power to invalidate or rewrite statutes with which they disagree. This calls into question whether they are meeting their "take care" obligations.
The non-enforcement of marijuana prohibition in 'legal' states is a well-known example of a President's non-enforcement of laws. Marijuana is illegal in all 50 states, but the last three Presidents have not enforced this law in states where the state government has 'legalized' it. Similarly, federal obscenity laws are valid laws but have been deprioritized by the Department of Justice.
The US President cannot be held in contempt because they are not bound by court injunctions against the federal government. However, if a judge decided that jailing a government official was the only way to enforce a court order, the president could, in theory, order US marshals not to enforce a contempt order against an executive branch official, though this would violate the law.
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Vetoing bills
Vetoing is one of the ways a president can act against a law. The president has the power to veto, or block, a bill passed by Congress before it becomes a law. This power is outlined in the Presentment Clause of the US Constitution, which states that a bill must be presented to the president after it has been passed by both the House of Representatives and the Senate. If the president approves, they sign the bill into law. However, if the president does not approve, they can veto the bill by returning it to the originating House, along with their objections. The bill then undergoes reconsideration, and if two-thirds of both the House and the Senate still agree to pass the bill, it becomes a law despite the president's veto.
The president has a limited time frame to exercise their veto power. They must return the bill within ten days (Sundays excepted) after it has been presented to them. If the president fails to do so, the bill automatically becomes law, unless Congress adjourns before the ten days elapse, which is known as a pocket veto. In this case, the president can prevent the bill from becoming law by simply not signing it. However, a pocket veto cannot be overridden by Congress; instead, the bill must be reintroduced and enacted again.
The Supreme Court has clarified that the veto provisions in the Constitution serve two functions. Firstly, they ensure that the president has a suitable opportunity to consider the bills presented to them. Secondly, they ensure that Congress has the opportunity to consider the president's objections and pass the bill over their veto if there are sufficient votes. While the president can use their veto power to prevent a bill from becoming law, once a bill becomes law, the president has no authority to repeal it.
The power to veto bills allows the president to act as a check on the legislative branch, ensuring that laws passed by Congress are carefully considered and reviewed before they come into effect. It provides a mechanism for the president to exercise their judgment and ensure that bills align with the best interests of the nation and the values they represent. However, the veto power is not absolute, as Congress can override a veto with a two-thirds majority vote in both the House and the Senate.
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Pocket veto
A pocket veto is a legislative manoeuvre that allows the president to prevent a bill from becoming law by neither signing nor explicitly vetoing it. In the United States, if the president does not sign a bill within 10 days of its passage by Congress, it automatically becomes law. However, if Congress adjourns within this 10-day period and the president does not sign, the bill is automatically vetoed, and this veto is absolute. This is known as a pocket veto.
The pocket veto is a powerful tool for the president to block legislation without having to formally exercise a veto. By not returning the bill to Congress, the president can effectively veto it. This tactic was notably used by Zail Singh, the President of India from 1982 to 1987, to prevent the Indian Post Office (Amendment) Bill from becoming law.
Franklin D. Roosevelt, the US president from 1933 to 1945, had an outstanding number of pocket vetoes—263 out of 635 total vetoes. All presidents after him until George W. Bush also used pocket vetoes while in office. The most frequent user of the pocket veto after Roosevelt was Dwight D. Eisenhower, with 108. Interestingly, since the George W. Bush presidency, no president has used this tactic.
The Indian Constitution also allows for a form of pocket veto. Article 111 states that the president can declare their assent to a bill passed by both houses of Parliament or withhold it, provided that they may return the bill for reconsideration. If Parliament passes the bill again, with or without amendments, the president cannot withhold their assent a second time. However, the Indian Constitution does not specify a timeframe for presidential action on a bill, so by indefinitely postponing action and not returning the bill, the president can effectively veto it.
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Removing executive officers
The US President has a variety of powers, including the ability to veto and sign bills, make treaties, represent the nation in talks with foreign countries, enforce laws passed by Congress, and nominate Cabinet members and Supreme Court Justices. However, the President does not have the power to make laws, declare war, or interpret laws.
Now, regarding the removal of executive officers, there is a long-running debate about whether the Constitution grants the President the power to do so. This power is known as the "executive power" or "removal power". Some, like James Madison, George Washington, Thomas Jefferson, and Alexander Hamilton, argue that the President does have the authority to remove executive officers at will. This view is supported by early Congresses and Executives, who believed that the Constitution granted the President such power.
On the other hand, some Justices and scholars argue that Congress has the power to curb executive removals and set limitations on the grounds for removal. They contend that if Congress can limit the grounds for removal, it could also limit the grounds for executive pardons, judicial judgments, and impeachment removals.
Despite these differing opinions, the Court has endorsed the traditional view that the Constitution grants the President the power to remove executive officers. This was affirmed in three opinions: Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law LLC v. Consumer Financial Protection Bureau, and Collins v. Yellen.
However, it is important to note that there are certain limitations to the President's removal power. For example, in the case of inferior officers, Congress may "limit and restrict the power of removal as it deems best for the public interest". Additionally, the Court has held that while Congress can grant for-cause protections to certain agencies, it cannot grant such protections to a single executive officer in charge of an agency.
In conclusion, while the President of the United States does possess the power to remove executive officers, this power is not absolute and may be subject to limitations set by Congress or the Court.
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Pardon people who have committed federal offences
The President of the United States has the power to pardon people who have committed federal offences. This is a discretionary power, and the President may choose to disregard the findings of the Pardon Attorney or bypass the office altogether.
A pardon is an executive order granting clemency for a conviction. It may be granted at any time after the commission of the crime, even before any indictments are issued or legal proceedings are initiated. It does not remove the offence from a person's criminal record, but it can remove civil disabilities, such as restrictions on the right to vote, hold office, or sit on a jury, imposed because of the conviction. It may also be helpful in obtaining licenses, bonding, or employment.
There are some limitations to the President's pardon power. Firstly, it only applies to offences against the United States, meaning state criminal offences and federal or state civil claims are not covered. Secondly, the President cannot use the pardon power in cases of impeachment.
There have been several notable uses of the pardon power by US Presidents. For example, President Gerald R. Ford pardoned former President Richard M. Nixon in 1974 for any offences he may have committed during his time in office, including any potential involvement in the Watergate scandal. More recently, in 2020, President Trump pardoned his former National Security Advisor, retired General Michael Flynn, who had pleaded guilty to making false statements to the FBI.
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Frequently asked questions
The president is not required to personally ensure the faithful execution of the laws. They cannot be required to perform the numerous details incident to services that the Constitution or federal laws may require. However, they can be compelled to execute a law through a Writ of Mandamus for any refusal by the President to execute any "shall" duties.
The president's role is to supervise executive departments and ensure that subordinates execute the laws faithfully. They can remove executive officers if they abuse their discretion.
Yes, the president can veto a bill. In most cases, Congress can vote to override that veto and the bill becomes a law. If the president does not sign off on a bill and it remains unsigned when Congress is no longer in session, the bill will be vetoed by default. This action is called a pocket veto and cannot be overridden by Congress.
