What exactly can the POTUS do?


The Wiki article on presidential powers is somewhat vague.

How much power the POTUS have in terms of executive orders? What do they apply to? Can he order congress to stay in session? Etc…

The GD thread about a reportcard on Obama has me wondering how much authority he actually has. I don’t mean implied political goodwill or malignancy; or “Stuff you do because the POTUS asked”. What can he really, legally do?

End the world?

Basic (and generic) answers:

He is the Commander in Chief of the US military. As recently demonstrated, he can hand a General his ass.

During times of “war” (a term I’m not even going to touch at this point) he can do damn near anything - Lincoln suspended several laws (some of them Constitutionally fundamental) using logic predating the War Powers act.

He can issue Executive Orders that have quite an impact (Carter: “No more assassinations!” Bush the 2nd: “More assassinations”)

Ultimately, though, he the Congress is the real powerbroker in the US government. Checks and balances are largely misunderstood. When the courts reject legislation, Congress can rewrite it to suit their intentions; Congress can remove the President.

On the other hand, the President can’t kick anyone out of Congress (or the Supreme Court), and is only an “executive”; that is, he is ultimately responsible for the execution of Congressional legislation.

He can issue executive orders which apply to the running of the executive branch of the Federal government to the extent that such orders are consistent with the law. To the extent that the law gives the President the power to issue an EO on a particular subject, he would have very broad discretion, to the extent that the law limits the executive branch’s ability to issue regulations on a subject, the President’s orders cannot override such a law.

The Constitution allows him to order Congress back into session in extraordinary circumstances.

The president has the power to issue executive orders pursuant to powers granted to him by statue or the Constitution. For example, the president can waive certain trade requirements with the Republic of Belarus, because the Trade Act of 1974 gives the president the power to waive those requirements in certain circumstances. As another example, the president can order the military to kill Somali pirates holding an American ship captain hostage, because the Constitution makes him commander and chief of the military.

Executive orders are subject to the same constitutional scrutiny as any law, since they are given for the purpose of enforcing that law. A president can not give an order for something he is not empowered by law to do; Truman found this out the hard way when he tried to seize the nation’s steel mills to end a labor dispute.

The president has unchecked power to pardon or commute the sentence of any federal crime, except in cases of impeachment.
But the vast majority of the president’s power is through less formal means. As the leader of his party, he is expected to manage their legislative agenda in Congress by directing the activities of legislators of his party, proposing legislation to be introduced (the White House has a whole staff just for writing bills) and negotiating and mediating amongst interested parties in Congress. The White House has a large body of advisory departments who formulate foreign and domestic policy, and the president acts on this advice through international negotiations, pushing forward new legislation and regulations, and issuing of executive orders. Further, the White House is extremely influential during the yearly federal budget process, during which the president will enact policy through negotiation of line items. (Remember, the federal budget and subsequent appropriations are bills that can be vetoed.)

Finally, the White House has a large discretionary budget which it can use for a lot of purposes, such as studying policy, direct grants, etc.

Okay, So since he is CMIC of the military then can he Repeal Don’t Ask Don’t Tell by EO? it was enacted by one. Along the same lines, I know that congress has to act to start a war, does it have to act to end it, or can the POTUS order all the forces home himself? Could he refuse to issue troops to a region if he disagreed with congress?

POTUS does have odd limitations because of politics.

Clinton was my governor. As governor he actually ran his own staff. Hiring & firing were a routine part of the job. This is a small state and governors are hands on workers. Clinton becomes POTUS. He notices the staff at his travel office are somewhat ineffective. He fires them. No big deal they are part of his staff. Right? Nope. The poop hits the fan. That was his first stumble early in his administration.

The point is POTUS has powers in theory. But, the political sword at his throat severely limits what he can actually do.

He can do most of these things. Many of the signing statements that created controversy under the Bush administration stated that he was refusing to appropriate money in a bill passed by Congress.

As friedo quite correctly states, the President is limited by the Supreme Court. OTOH, the Court has no enforcement powers. A rogue president could defy them. (See Andrew Jackson.)

Mostly, though, the question is like division by 0. It’s undefined except for some special situations in which a definition is created. Nothing is known about what’s legal until a specific situation comes along and tests the law. We know what has been tested in the past, but that leaves a googleplex number of possible situations for the future, in each of which the exact facts of the case becomes the determiner.

And in the real world, everything is done with compromise and negotiation and fear of the consequences, which is why true constitutional crises almost never occur and the number of cases that can answer your question probably would fit onto one hand.

Huh. That almost makes my brain hurt.

He could repeal DADT, but it’s still illegal under federal law for gay people to serve in the military. Remember, the original DADT order was a compromise about the manner of enforcing existing statute. Undoing DADT would make things worse for gay people who wanted to serve, because then military prosecutors would have discretion to investigate people for being gay, whereas now they are somewhat restrained from doing so by the “don’t ask” policy.

Yes, he could. In general, Congress issues declarations of war (the last one was during WWII) at the advice of the president, and does the same for authorizations of military force. The president can not be forced to order the military to conduct some operation, but if Congress felt strongly enough about a war, the president could be removed. Imagine if the Russkies invade the US in a Red Dawn-type scenario, and the president said, “nah, I don’t give a shit about Montana, I’m ordering the Army to stand down.” Impeachmentsville, population him.

The Youngstown case which Friedo mentions gives a quite good discussion of the extents of and limits on executive power.

Essentially, the President has the power to do everything that the Federal government does except enact laws and judge Article III cases (he does judge administrative tribunal cases). Nearly all of this, of course, he does through the employees and officials of the Executive Branch, but it should never be forgotten that, barring specific statutory empowerment of a given official to do something himself, he and he alone is the one with the authority – they act totally under his delegated authority.

Cite, please. Not only do I not recall this, it would be considered impoundment, which was made illegal three decades ago.

Actually, DADT is law and cannot be repealed by executive order. Another law has to be passed in order to change that law. A proposal is now pending in Congress.

The President has the ability to send troops into harm’s way without prior approval of Congress under various circumstances… the thing is, there is disagreement as to what those exact circumstances really are. Everyone agrees that the President can launch a preemptive attack without the consent of Congress – as in, Canada is about to attack us, but we beat them to the punch.

The President is allowed by law to deploy troops into harm’s way for limited periods of time (this is the War Powers Act), but Presidents have all held that they believe the limitation of time is unconstitutional – but that hasn’t been tested in court, really.

An interesting question that probably doesn’t have a factual answer because this circumstance hasn’t yet happened.

Apparently my memory is faulty, so I withdraw that for a more factual account from here:

For anyone interested in the DADT portion - it’s part of the Uniform Code of Military Justice and Title 10 US Code 654.

The President cannot order a nuclear attack by himself*. The President and the Secretary of Defence acting together (the National Command Authority) must jointly authorize the use of nuclear weapons. Of course if the SecDef says not the President can simply fire him, and ask the next in line, and so on and so force until someone says yes.

*This may not apply if the US is already under nuclear attack.

I would also add the inverse is true. The President can use the military without Congress’s approval. In the same scenario (Russians invade), the President can constitutionally defend the nation without Congress doing anything.

This power is controversial because the President can use the military when “war is thrust upon the nation.” That is open to interpretation and abuse.

It really depends on the situation actually. Most of the time, Congress and the President work together which greatly expands the powers of both. Even when different parties are in each branch, they still tend to work together. For example, Presidents are given a fairly wide latitude in negotiating treaties with other nations. Usually Congress approves; however Congress can refuse to ratify some of those treaties and they occasionally have. So would you consider treaty making something the President can do or not? On one hand, we have SALT and NAFTA and a whole bunch of other treaties the President negotiated that prove it is. OTOH, we have Kyoto as a major example where the Presidents negotiation meant dick all.

The President is charged with law enforcement. He does so through cabinet appointments, which are subject to approval by Congress. Congress also has the power to pass laws limiting who can be appointed or laws to change how lower offices are filled (for example, as a direct result of JFK & RFK, family members can’t be appointed anymore). At lower levels, the President can fire people, but that often has a great political cost. You may remember Nixon’s ‘saturday night massacre’, where he quickly went through several Attorney Generals. Perfectly legal, but a large part of why Nixon resigned. Bush got some flack over firing attorneys as well, but little came of that. Obama has been accused of allowing his justice department to ignore voter fraud and that may or may not become a huge issue (I’m not arguing pro or con on that, just pointing out the situation exists). So do those limits mean law enforcement is within his authority or not?

And lets not forget the veto. That is an astounding amount of authority. Granted, it can be overcome, but even so, it’s quite a lot of authority. Often even the threat of using it will force Congress to give concessions on issues the President cares about. As an example of the power this gives a President, a disagreement between Clinton and Congress on the budget, which the President has no authority over since that’s all Congress, ended up in the debt ceiling not being raised, again this is Congress’s authority, and caused a shutdown of the government. All because Clinton had veto power.

Then there’s Commander in Chief. How much authority that really gives and what checks there are on it is rather a gray area. Congress usually respects this. The laws they do pass usually aren’t major encroachments on the Presidents authority. Even so, the President often argues the laws are unconstitutional, but he follows them anyway. IIRC there are laws that require the President to brief Congress occasionally on military issues, and the President does so while insisting it’s a courtesy rather than a requirement. The few times military issues have become a major political fights, Congress usually loses.

Anyway, the point is, it’s really hard to say what exactly the authority of the President has. Clearly he has a lot, but much of it is tactfully granted by Congress, or at least by Congress not actively countering it. Despite bitter partisanship, the President and Congress work together and don’t push that much on which wields the biggest stick on what issue.

Can the president nuke any country he wants? Could Obama wake up tomorrow and way nuke London or would he be declared insane and take from office

And what about the pardon power?

“Quite a lot of federal laws about marijuana, eh? It’s illegal to buy it. It’s illegal to use it. It’s illegal to sell it. It’s like that quote from PULP FICTION, in reverse, or something. So, yeah, that’s all – gone, now. Jail time? Fines? Not on my watch; come to historic Washington DC and, y’know, get baked for the weekend.”

Within his authority to decree?

Doesn’t even require pardon power. He enforces the laws. All he’d have to do is instruct orders that no cases involving marijuana be prosecuted. In fact, Obama has done exactly that in the case of medical marijuana. However, this only covers national enforcement. States could still choose to enforce whatever their laws are.

Note: His pardon power, like his enforcement power, is limited to a federal scope. The President can not pardon people for violating an individual state’s laws. In most, but not all, states it is the governor who pardons violations of state law.