Institutional Powers

Finally, after working through the powers of the federal government it is necessary to explore institutional powers. While little doubt exists that Congress has substantial Article I powers, greater questions arise over the role and authority of the executive. Quite simply, the Commerce Clause, Necessary and Proper, and general constitutional authority provide a great deal of leeway for the United States Congress to enact laws, policies, and programs. The President lacks those levers of power. What complicates the issue is the somewhat inconsistent issues of interpretation.

The Legal Information Institute outlines the branch powers as follows: 

Congress

The main task of Congress is to legislate. It is the dominant policymaking authority out of the three branches of government and represents the states. Congress is a bicameral legislature comprised of the House of Representatives and the Senate. The bicameral design of Congress exemplifies the Founders’ method of splitting power between different entities in order to share power and create a check against tyranny. Members of the House of Representatives and the Senate are both elected by voters as a form of representative democracy. The Senate is composed of two Senators from each state who serve terms of six years while in the House representatives represent approximately 600,000 people each and serve terms of two years. The Founding Fathers decided that while every state would be represented equally in the Senate, representation in the House of Representatives would be according to a state’s population. The number of Representatives was capped by legislation in the early 1900s. At-large elections, which is where the entire state population votes for Representatives instead of voters in the specific congressional district, are only permitted in states with one Representative.

The most important power Congress has is to make laws, and a bill only becomes a law after it has passed both the House of Representatives and the Senate. A bill first needs to be introduced, which can only be done by a member of Congress. Next, it is referred to a committee for review, which can approve, amend, or reject it. If it is not rejected then it continues to move through different committees and subcommittees where the bill is debated. After a bill has been approved by a full committee, it is voted on. After one chamber has approved it, it is sent to the other for debate and approval. Once it has passed both chambers, it goes to the President who then vetoes it or signs it into law. If the chambers approve different versions of the bill then they need to be resolved in a joint congressional committee. Even if the President vetoes a bill, Congress can still turn it into law although it requires a two-thirds majority in both chambers of Congress. In addition to passing laws, the legislative branch also has the power to amend the Constitution. An amendment needs to be passed by a two-thirds majority in both chambers of Congress then it needs to go to the states and be passed by three-quarters of the state legislatures.

Section 1 Article 8 of the Constitution grants Congress a number of powers, including the power to coin money, declare war, regulate commerce, raise an army and a navy, establish federal courts, and establish rules regarding immigration and naturalization. In addition to these enumerated powers, the Constitution also grants Congress the power to pass legislation that it is “necessary and proper” in order to implement its enumerated powers.

Furthermore, each of the houses has been granted special powers. Powers given to the House of Representatives include the impeachment power, the power to elect the President in the case of an electoral college tie, and revenue bills that need to originate in the House. The Senate has the power to confirm the President’s appointments for executive and judicial branch posts and ratify treaties. Each one of the chambers also votes to confirm the President’s choice for Vice President when there is a vacancy.

The Constitution also specifically forbids Congress from taking certain acts. Congress is not allowed to pass legislation that retroactively makes a specific act a crime or laws that condemn persons for crimes or unlawful acts without providing a trial. There are also certain rules hampering Congress’s ability to level taxes on the population.

Congress also serves an important role in checking and balancing the power of the other branches. The legislative branch provides a check through the use of hearings where it provides oversight. Another one of Congress’s most important functions is its investigative power. This is often done through committees that gather information to form future laws, determine how effective current laws are, and check on the performance of other officials.

President

In its first three articles, the U.S. Constitution outlines the branches of the U.S. Government, the powers that they contain, and the limitations to which they must adhere. Article II outlines the duties of the Executive Branch.

The President of the United States is elected to a four-year term by electors from every state and the District of Columbia. The electors make up the Electoral College, which is comprised of 538 electors, equal to the number of Representatives and Senators that currently make up Congress. The citizens of each state vote for slates of electors who then vote for the President on the prescribed day, selected by Congress.

To become President, a person must be a natural-born citizen of the United States. Naturalized citizens are ineligible, as are persons under the age of 35. In the case that the President should be unable to perform his duties, the Vice-President becomes the President. Amendment XXII placed a two-term limit on the presidential office.

As Executive

Is the Commander in Chief of the armed forces. He or she has the power to call into service the state units of the National Guard, and in times of emergency may be given the power by Congress to manage national security or the economy.

Has the power to make treaties with Senate approval. He or she can also receive ambassadors and work with leaders of other nations.

Is responsible for nominating the heads of governmental departments, federal judges, and Supreme Court justices. The U.S. Senate is charged with approving these nominations.

Can issue executive orders, which have the force of law but do not have to be approved by Congress.

Can issue pardons for federal offenses.

Can convene Congress for special sessions.

Can veto legislation approved by Congress. However, the veto is limited. It is not a line-item veto, meaning that the President must veto the entire bill, rather than parts of it. Further, a presidential veto can be overridden by a two-thirds vote by Congress.

Delivers the State of the Union address annually to a joint session of Congress.

War Powers

Congress holds the power to declare war. As a result, the President cannot declare war without their approval. However, as the Commander in Chief of the armed forces, Presidents have sent troops to battle without an official war declaration (which happened in Vietnam and Korea). The 1973 War Powers Act attempted to define when and how the President could send troops to battle by adding strict time frames for reporting to Congress after sending troops to war, in addition to other measures, however, it has not had much effect (see "War Powers Resolution" section in the Commander in Chief Powers article).

Nominations

The President is responsible for nominating candidates for the head positions of government offices. The President will typically nominate cabinet officials and secretaries at the beginning of his or her presidency and will fill vacancies as necessary. In addition, the President is responsible for nominating Federal Circuit Court judges and Supreme Court justices and choosing the chief justice. These nominations must be confirmed by the Senate. While the President usually has broad appointment powers, subject to Senate approval, there are some limitations. In National Labor Relations Board v. SW General Inc. (2017), the Supreme Court found that the "Federal Vacancies Reform Act of 1998 [FVRA], which prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity, applies to anyone performing acting service under the FVRA."

Further, the President is constitutionally allowed to make recess appointments when Senate is not in session (which means that such appointments are not subject to Senate approval until the end of the session). However, In National Labor Relations Board v. Noel Canning, the Supreme Court found that "for purposes of the clause, the Senate is in session whenever it indicates that it is, as long as – under its own rules – it retains the capacity to transact Senate business." As such, the Senate can claim to always be in session, therefore preventing the President from making any recess appointments.

Executive Orders

In times of emergency, the President can override Congress and issue executive orders with almost limitless power. Abraham Lincoln used an executive order in order to fight the Civil War, Woodrow Wilson issued numerous ones related to US involvement in World War I, and Franklin Roosevelt approved Japanese internment camps during World War II with an executive order.

Pardons

The U.S. Constitution gives the President almost limitless power to grant pardons to those convicted of federal crimes. While the President cannot pardon someone impeached by Congress, he or she can pardon anyone else without any Congressional involvement.

The Extent of the President's Powers

Article II of the Constitution contains the vesting clause, which states: "The executive Power shall be vested in a President of the United States of America." This has historically been interpreted to mean that the President is the head of the Executive Branch, but that he is still subject to limits within that Branch (i.e. if the President fires members of the Executive Branch, Congress would have oversight and would be able to investigate the firings.) Some scholars, however, have interpreted the Vesting Clause under a much stronger lens, finding that the President has full power over the entire Executive Branch. Under this theory, commonly referred to as the Unitary Executive Theory, any decision that the President makes regarding the Executive Branch would not be subject to any sort of review or oversight (i.e. Congress would not be able to investigate the President's firings of any members of the Executive Branch). While the Supreme Court has not directly embraced or rejected this theory, Justice Alito has made comments which have caused some to think that he endorses the theory: "The president has not just some executive powers, but the executive power — the whole thing."