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This week we're going to continue
with our look at the Executive Branch,

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focusing on the powers of the President
under the Constitution.

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Article 2, Section 2,
sets out some of the most important

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powers of the American President,
namely the war powers,

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the ability to sign treaties,
and the nomination power.

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If we start with the war powers,
the Constitution makes it clear

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that the President is the
commander-in-chief of the military.

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The Founding Fathers,
wary of the prospect of the country

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falling into a military dictatorship,
wanted the role of the

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commander-in-chief to be allocated
to a civilian rather than a military

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official.

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One obvious corollary of this is
that Congress can't delegate the

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ultimate command of the Army and
Navy to anyone other than the

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President.

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But nor can it insulate parts of
the military from the President's

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oversight, as this would effectively
undermine the command authority

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of the President.

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The Constitution explicitly gives
Congress the power to declare war,

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with the President's role presumably
confined to decisions about how

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to conduct the war.

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And yet history shows us that it
is almost invariably the President

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who takes the decision about whether
to take the country to war.

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Although President Franklin turned
to Congress for formal declarations

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of war against Axis powers in the
Second World War, every American

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President since then has used military
force without a Congressional

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declaration of war.

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There was some pushback by Congress
when, in 1973, it passed the War

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Powers Act.

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This legislation obliged the President
to notify Congress within 48 hours

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of deciding on military action,
and limited such actions to 60

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or 90 days.

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But it could be argued that this
law only served to confirm the

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idea of broad presidential war
powers by explicitly acknowledging

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the President's ability to use
military force without the need

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for a prior declaration of war
by Congress.

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The prevailing view today seems
to be that the Commander-in-Chief

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Clause confers wide and substantive
war powers on the President.

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The precise limits of these powers
were tested following the terrorist

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attacks of September 11,
2001.

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The White House argued that,
under the Commander-in-Chief Clause,

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it would be unconstitutional to
place statutory limits on the

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President's authority to conduct
the war on terror, whether that

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be through the torture of detainees,
warrantless surveillance,

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or the detention of U.S.

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citizens as enemy combatants.

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However, in Hamden v.

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Rumsfeld in 2006, the Supreme Court
appeared to push back against such

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an expansive view of executive power.

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The case held that President Bush
could not establish military tribunals

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to try non-citizen terrorism suspects.

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Writing for the majority,
Justice Stevens wrote that,

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"…whether or not the President
has independent power,

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absent Congressional authorization
to convene military commissions,

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he may not disregard limitations
that Congress has, in proper exercise

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of its own war powers,
placed on his powers." While the

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decision served to check President
Bush's ambitions to circumvent

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civilian courts in terror-related
matters, the precise scope of the

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ruling is not entirely clear and
it has certainly not limited the

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Executive's power to continue
processing detainees at the military

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prison in Guantanamo.

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The main role of the President
as head of the Executive branch

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is to execute enforcement of the
laws passed by Congress.

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And Article 2 gives the President
broad executive authority to use

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their discretion in deciding how
best to do this.

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Since the time of the first American
President, George Washington,

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all Presidents have used a tool
known as executive orders to carry

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out their functions.

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An executive order is a signed
directive from the President that

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manages operations of the federal
government.

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Executive orders are not legislation
and so do not require Congressional

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approval, nor can Congress overturn
them.

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Only a sitting U.S.

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President can overturn an existing
executive order.

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Abraham Lincoln used an executive
order to fight the Civil War,

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Woodrow Wilson issued numerous
executive orders over U.S.

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involvement in World War I,
and Franklin Roosevelt used an

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executive order to approve Japanese
internment camps during World War II.

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The power to issue executive orders is,
along with the expanded war powers,

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a key factor in understanding the
power of modern American Presidents.

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In the 1937 case, United States v.

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Belmont, the Supreme Court established
executive predominance over state

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laws and constitutions in matters
of foreign policy, and confirmed

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that executive agreements were
reserved to the President.

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Although on paper, the Constitution
shared responsibility for foreign

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policy between the executive and
the legislature, today it is the

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President who directs U.S.

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foreign policy and who is often
able to overcome Congressional

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resistance to policy initiatives
through the mechanism of executive

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orders.

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Another significant power of the
American President, and something

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that figured prominently in the
electioneering of President Trump,

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is the power to nominate federal
judges, including Supreme Court

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justices.

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Given that Supreme Court justices
are appointed for life,

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and are responsible for deciding
whether laws comply with the

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Constitution, the political stakes
of such nominations are high.

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The nominations must be approved
by the Senate, which may provide

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a check on presidential ambitions
to orient the federal judiciary

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toward a particular ideological stance.

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However, this is less likely where
the Senate is controlled by the

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same party as the President.

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We can see this process at work
in recent history.

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Donald Trump, in his first term
in office, had the opportunity

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to nominate three justices to the
Supreme Court, which had the effect

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of tilting the Court towards a
conservative majority.

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The impact of this decisive shift
in the Court is already being felt

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in decisions on free speech or
religious freedom, and perhaps

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most notably in the Court's momentous
decision to overturn Roe v.

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Wade, the 1973 decision that
established women's right to an

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abortion.

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Another example of where the Senate
has a role in approving a decision

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of the President can be found in
Section 2 of Article 2,

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which states that the President
shall have power by and with the

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advice and consent of the Senate
to make treaties provided two-thirds

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of the Senators concur.

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In other words, the Constitution
makes it clear that while the President

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can make treaties, they only become
official once they have the approval

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of a Senate supermajority.

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Under the Constitution,
the President has an almost unlimited

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power to grant pardons to anyone
convicted of a federal crime.

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The only exception is where someone
has been impeached by Congress.

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Otherwise, the President can pardon
anyone without Congressional

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involvement.

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It is sometimes difficult to reconcile
this power with the original aims

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of the Founding Fathers.

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After all, pardoning people was
typically a royal prerogative,

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and so the idea of giving the American
President the same powers as a

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King seems somewhat incongruous.

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The apparent justification was
that it would act as a check on

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abuses of power by the judiciary.

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Section 3 of Article 2 focuses
on the President's role in the

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legislative process.

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One way in which the President
influences this process is the

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State of the Union Address,
an annual speech delivered by the

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President to Congress on the state
of an opportunity, at least in

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modern times, for the President
to set out his or her own legislative

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agenda.

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Many of the law proposals passed
or rejected by Congress,

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including the federal budget,
were originally proposed by the

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President in the State of the Union
Address.

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Another important aspect of this
role is the President's power to

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veto legislation approved by Congress.

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As we saw in previous weeks,
this veto power has its limits,

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as it can be overridden by a two-thirds
vote by Congress.

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However, it remains an important
part of the checks and balances

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system implemented through the
Constitution.

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Thank you for your time in watching
this week's video on Executive Power.