Article 2 of the Constitution opens with the words, “The executive power shall be vested in a President of the United States.” Presidents take the term executive power to mean a general responsibility to direct the bureaucracy.
The Presidential claim is controversial because the Constitution confers neither the title nor the powers of “chief executive” on the President, nor does it assign the President any powers to make a budget or remove other government officials. It does not explicitly say that the President can issue orders to heads of departments. Instead, it provides that he may “require the opinion in writing, of the principal officer in each of the departments, on any subject relating to the duties of their respective offices.”
When Andrew Jackson asserted that he could give orders to the secretary of the Treasury, his claim led to a split within his own party and the rise of an opposition party known as the Whigs, who challenged the prerogatives of “King Andrew the First.” The Whigs sought to minimize, if not entirely eliminate, Presidential control of the departments. Senator Daniel Webster countered that the Founding Fathers did not intend to make the President administrative chief. He argued that “the executive power” meant no more than the specific powers that appear after it in Article 2—most of which had nothing to do with administering the government. “I do not regard the declaration that the executive power shall be vested in a President as being any grant at all,” Webster concluded. The Whigs believed that Presidents could not remove cabinet secretaries without the consent of Congress, nor could they control policy in the departments. Instead, the Whigs believed that Congress should make policy.
Modern Presidents, beginning with Theodore Roosevelt, have argued that the “executive power” constitutes an affirmative grant of power that allows them to supervise the executive departments' budget and legislative requests to Congress. Presidents Herbert Hoover and Franklin D. Roosevelt both argued that the principle of accountability to the people in a democracy requires that Presidents have absolute control over operations of the departments, that they be considered the “chief executive,” and that they be able to issue orders to officials in the departments. Only with such powers, they concluded, could Presidents be fairly held accountable for the actions of officials in their administrations.
The conflict between Congress and the President over power to run the departments remains unsettled, in large part because of specific powers the Constitution grants to Congress in Article 1. The legislature creates all the departments, determines their powers, and creates all the offices (and the salaries that go with them)—all by passing laws. It also reorganizes the government bureaucracy to create new agencies or abolish existing ones.
Congress authorizes government programs, determines the powers and duties of all officials, and can prohibit activities of which it disapproves. Congress appropriates all funds for departments, and officials can spend only the money appropriated by its laws. Congress oversees the activities of the agencies to ensure that officials have obeyed the laws and spent money lawfully. Congress makes the rules that govern the civil and military personnel in the bureaucracies. The Supreme Court has stated the principle that officials are expected, in performing routine duties, to obey the laws of the United States rather than orders that the President might issue, if such orders conflict.
In modern times Presidents have vastly increased their executive powers. Since 1921 they have submitted an annual budget to Congress, rather than permitting departments to request funds directly. Since 1926 they have had the power to remove officials from departments. Since the late 1930s the Executive Office of the President has enabled the President to dominate personnel selection, program development, and legislative requests made to Congress by the departments. In the 1940s the President was given authority by Congress to formulate and then implement reorganization plans, subject only to prior congressional consent. By the 1970s Presidents were implementing new management techniques in the departments. In the 1980s they were approving or disapproving all departmental agency regulations prior to final adoption. They had indeed become “chief executives.”
See also Appointment power; Budget, Presidential; Cabinet; Commander in chief; Departments, executive; Executive branch; Executive Office of the President; Executive orders; Executive privilege; Impoundment of funds; Modern presidency; Office of Management and Budget; Removal power; War powers
Sources
- Christopher H. Pyle and Richard M. Pious, The President, Congress, and the Constitution (New York: Free Press, 1984)
