Presidents of the USA are constrained by the constitutional system of checks and balances (McKay 2009: p. 46). Political success can only prevail, if Presidents attempt to strengthen their powers given by the constitution. This includes congressional persuasion, as well as the use of given executive prerogatives (Rudalevige 2006: p. 509-512). By analysing both aspects, this essay provides a general perspective on the effectiveness of overcoming the presidential power limits, whereupon effectiveness is regarded as the preferred policy-outcome of the President. Finally, this essay aims at the examination of examples of both aspects after World War II, but does not primary evaluate the development of presidential power.
Ultimately, this essay comes to the conclusion that Presidents can rely on the effectiveness of persuasion, when public support is high and the political environment favors the President's agenda. Executive orders are increasingly used to alter policies, but cannot achieve the preferred policy-outcome of the President. In the final analysis, this essay points out that the use of signing statements provides a highly effective tool for Presidents to overcome their power limits, especially in situations of national crisis.
This claim will be proofed in two main parts. First, the limits set by the constitution will be briefly outlined. The second section analysis the Presidents attempts to extend their powers by the use of informal powers by the means of oppositional examples. Moreover, the increase of executive orders by Presidents in the last decades will be examined and demonstrated how this opportunity to achieve policy goals can be evaluated. At the end, a conclusion will propose further research aims.
Brief Outline of Constitutional Limits
The constitution guarantees the President several prerogatives, constrains his ability to act unilaterally but simultaneously describes only vague where his power ends (Jillson 2009: p. 263; p. 268-270). One superiority of the President is located in security- and defense-related issues. He is the 'Commander in Chief' of the armed forces. The prerogative in foreign policy is enhanced by the fact that he has the power to make treaties. Moreover, the President can recommend legislation to the congress and is able to veto bills sent by congress (Singh 2003: p. 172-173). A further power to influence legislation is the use of presidential signing statements. This gives the President the opportunity to interpret a law as it is compliant with the President's interpretation of the constitution, because he has the primary duty to “take care that the laws be faithfully executed” (Singh 2003: p. 174). Signing Statements can be applied to secure that a bill is enforceable by the administration (Tushnet 2009: p. 92-93).
In return, the congress constrains the power of the President by his ability to override vetoes and its required approval of treaties as well as its approval of high governmental officials like ambassadors and public ministers. Additionally, only the congress has the right to declare war (Peterson 1995: p. 443-444; Jillson 2009: p. 271). Furthermore, the congress decides about the spending of the federal budget (Maidment 1993: p. 50). The judiciary constrains presidential power by interpreting binding what the constitution really means. Therefore, the court can amend laws or declare a law or an order as unconstitutional and oversee the actions of the President (Howell 1999:
p. 865-866). Nevertheless, the President has the ability to interpret the duties and rights of his office in order to comply with his task to take care that laws are faithfully executed to be independent of congressional attempts to undermine his authority. Thus, the President was given the ability to act as national leader, but even impeded by the system of checks and balances to act like a tyrant (Cronin et al.2005: p. 109; Maidment et al. 1993: p. 43).
The description of the constitutional limits of the President has shown that the chief executive is bound to the confirmation of the congress to pass his policy-agendas. The American political system compels the legislative and the executive to cooperate with each other. According to Richard Neustadt’s thesis, the President is able to achieve his policy-goals by persuading the congress (Neustadt 1990: p. 32; Dickinson 2005: p. 262). Power of Persuasion is the essential keyword of Neustadt's analysis. The constitutional constraint of being bound to executive power can be overcome by using informal power. In this conception, the President bargains for laws either by providing 'sticks and carrots' to the congressmen or by persuading them that a law complies with their own policy-preference (Quirk et al. 1995: p. 533-535; Dickinson 2008: p. 280-282). This strategic implication of presidential power determines the proactive Presidency, denoted by the intention of the President to put himself in the focus of the political system and act as the central institution to lead the country (Cronin et al. 2005: p. 109, 132). The President's ability to bargain for laws is accompanied by various factors of his political environment. High public approval rates force the congress to act and give the President a higher legitimation of his political agenda, because he represents the national will (Soha-Eshbaugh 2010: p. 710-711).
This argument will be strengthened, if one takes into account the following examples. Clinton suffered under a low presidential public approval of nearly 40% in 1994, when he attempted to pass his health care package. He used media attention and addressed his point of view directly to the constituency. He tried to convince the public but it turned against him by the majority. This leads us to the assumption that the political environment plays a role in overcoming the presidential power limits effectively (Edwards III 2000: p. 54-55; Cronin et al. 2005: p. 64 ; McKay 2009: p. 238). In contrast, Johnson had a comparably important goal of his presidency: the civil rights. Johnson enjoyed high approval rights of 80% in his first term. Moreover, he bargained with congressmen of his own party, leading a unified government. Johnson communicated clearly his policy goals by framing the “Great Society” program, and benefited from the lasting positive image of Kennedy's liberal agenda. In this favorable environment, Johnson could use his asserted unique bargaining skills to persuade the congress to pass the Civil Rights Act in 1964 without significant amendments (Mervin 1993: p. 178-180; Pfiffner 1993: p. 46, p. 146). Clinton in contrast, could not provide a clearly defined policy goal and suffered under the popular sentiments against big government, the legacy of Ronald Reagan (Edwards III: p. 57-58; Mervin 1993: p. 208).