How presidents use formal and informal power

UNIT 2 · INSTITUTIONS

CHAPTER 12

Article II gives the president a defined set of constitutional powers. Modern presidents also use statutory authority, control of the executive branch, appointments, vetoes, military leadership, bargaining, party leadership, and public communication. The key is to identify which source of authority supports a specific presidential action and what limits apply to it.

Each presidential tool has a specific constitutional or statutory basis and operates through a particular institution. The exam consistently asks which power is in play and what limits it.

WHAT ARTICLE II GIVES THE PRESIDENT

Article II, Section 1 vests executive power in a president elected to a four-year term. That vesting clause is brief, and the powers that follow it in Sections 2 and 3, appointments, treaties, commanding the armed forces, granting pardons, and taking care that the laws are faithfully executed, supply the specific tools a president has to work with.

APPOINTMENTS AND THE EXECUTIVE BRANCH

The president nominates federal officers and judges, and the Senate provides advice and consent before an appointment takes effect. Nomination and confirmation are two separate institutional actions: a president can nominate freely, but the Senate controls whether that nominee takes office.

The president acts through a larger executive team. The Vice President, Cabinet, and Executive Office of the President help develop, coordinate, and carry out the administration’s policy agenda. Cabinet secretaries lead major departments. The Executive Office supplies policy, management, budget, national-security, and political staff. These support structures turn presidential priorities into decisions across the executive branch.

VETO POWER AND LEGISLATIVE BARGAINING

A president can reject legislation with a regular veto, which returns the bill to Congress with objections and can be overridden by two-thirds of both chambers. A pocket veto works differently. If the president does not sign a bill within ten days, excluding Sundays, and Congress adjourns in a way that prevents the bill from being returned, the bill dies and Congress cannot override that pocket veto. If Congress remains able to receive the bill, an unsigned bill generally becomes law after the ten-day period. Because a regular veto is difficult to override, even the threat of one can shape negotiations before final passage.

FOREIGN AND MILITARY AUTHORITY

As commander in chief, the president directs the armed forces, while Congress holds the power to declare war and control military funding, a shared authority rather than a power the president holds alone. The president also makes treaties, but only with the advice and consent of two-thirds of senators present. The Senate gives that consent; the president is the one who completes ratification.

FEDERALIST NO. 70 AND THE CASE FOR ENERGY

Federalist No. 70 defends a single executive against the claim that concentrated power in one office threatens republican government. Hamilton argues that a single executive, serving a meaningful duration, with adequate support and real powers, can act with decision, activity, secrecy, and dispatch in ways a divided executive cannot.

Energy in the executive supports accountability rather than replacing it. A single president can be identified, credited, and blamed in a way a committee cannot, which is part of Hamilton’s case for concentrating executive power in one office instead of several.

WHY PRESIDENTIAL POWER HAS EXPANDED

Presidential power has grown well beyond Article II’s sparse text through a mix of war, national emergencies, congressional delegation, the growth of the executive branch itself, and new communication technology. Presidents frequently act where a statute delegates discretion or where Congress has not fully specified how a law should be carried out.

Executive orders are a central tool in that growth. An executive order directs executive-branch operations within authority a president already claims under the Constitution or a statute; it is not a law passed without Congress, and both courts and Congress can constrain it. Executive agreements expand presidential reach in a similar way: unlike a treaty, an executive agreement does not require two-thirds Senate approval, though it still operates within the president’s existing constitutional and statutory authority.

BARGAINING, PERSUASION, AND SIGNING STATEMENTS

Bargaining and persuasion are informal presidential powers. A president can negotiate with legislators, trade political support, use access to the administration, and appeal to shared policy interests to build congressional support. These tools do not create legal authority, but they can change whether Congress acts.

A signing statement is issued when the president signs a bill into law and explains how the administration interprets or intends to apply parts of that law. The statement does not amend the statute. It communicates the president’s interpretation to Congress, executive officials, and the public.

PRESIDENTIAL ACTIONS AND THEIR CONSTITUTIONAL SOURCE

Three presidential actions appear below, each resting on a different part of Article II. Work out the constitutional source for each one first.

Item 1. The president nominates a new federal appeals court judge.

Source: the appointment power under Article II, Section 2, subject to Senate advice and consent.

Item 2. Without submitting the deal to the Senate for a two-thirds vote, the president signs an agreement with a foreign government.

Source: the executive agreement, a tool distinct from the treaty power and not subject to the treaty ratification threshold.

Item 3. An executive order directs a federal agency to prioritize enforcement of an existing statute in a particular way.

Source: the Take Care Clause and existing statutory authority, exercised through an executive order or similar directive.

CONCEPT APPLICATION: A VETO THREAT

A president publicly states an intention to veto a bill unless a specific provision is removed before final passage. Congressional negotiators then revise the bill to drop that provision before the final vote.

Part A. Identify the formal power the president is drawing on.

The veto power under Article I, Section 7, which requires the president’s signature or a two-thirds override vote in both chambers before a bill becomes law over the president’s objection.

Part B. Explain why the threat of a veto can shape legislation before any vote occurs.

Because overriding a veto requires a two-thirds vote in both chambers, a threshold difficult for Congress to reach on most legislation, negotiators have a strong incentive to accommodate a credible veto threat rather than risk the bill failing after final passage.

A CONSTITUTIONAL LIMIT AFTER FDR

The Twenty-Second Amendment limits a person to two elections as president. A person who serves more than two years of another president’s term may be elected president only once. Adopted after Franklin D. Roosevelt won four presidential elections, the amendment reflects concern about how much power can accumulate in a long-serving presidency.

The broader debate did not end with term limits. A limited view of presidential power emphasizes powers stated in the Constitution and authority clearly delegated by Congress. A more expansive view gives presidents greater room to act from the executive power vested in Article II, especially during emergencies or when Congress has delegated discretion. Contemporary disputes often turn on where a presidential action falls between those two views.

Tool	Type	How it works
Regular veto	Formal	Rejects a bill; Congress can override with two-thirds of both chambers
Pocket veto	Formal	Bill dies when the president does not sign within the constitutional period and adjournment prevents return; it cannot be overridden
Commander in chief / treaties	Formal	Directs armed forces; treaties require Senate advice and consent
Executive agreement	Informal	Foreign-policy agreement that does not use the treaty two-thirds Senate threshold
Bargaining and persuasion	Informal	Builds congressional support through negotiation and political leverage
Executive order	Informal presidential tool rooted in executive or delegated authority	Directs executive-branch operations within lawful authority
Signing statement	Informal	Explains the president’s interpretation of a law being signed

Table 12.1 Presidential tools, sorted by formal and informal authority.

QUESTIONS TO ANSWER WITHOUT NOTES

1. What does Article II, Section 1 establish?

The presidency itself and a four-year term for the office.

2. Are nomination and confirmation the same institutional action?

No. The president nominates; the Senate separately confirms through its own vote.

3. Why does a credible veto threat give a president leverage before a final vote?

Because overriding a veto requires two-thirds of both chambers, a high threshold that gives Congress a strong incentive to accommodate the president’s position in advance.

4. Does the president hold war powers alone?

No. The president commands the armed forces as commander in chief, but Congress holds the power to declare war and control military funding.

5. What case does Federalist No. 70 make for a single executive?

That a single executive, with adequate duration, support, and power, can act with decision, activity, secrecy, and dispatch, and can be held accountable in a way a divided executive cannot.

6. Is an executive order a law passed without Congress?

No. It is a presidential directive operating through existing constitutional or statutory authority, and both courts and Congress can constrain it.

7. Does an executive agreement require the same Senate approval as a treaty?

No. A treaty requires two-thirds Senate advice and consent; an executive agreement is a separate mechanism that does not require that threshold.

8. What happens if the president does not sign a bill within ten days and Congress has adjourned in a way that prevents its return?

The bill dies through a pocket veto, which Congress cannot override.

9. What does a signing statement do, and what does it not do?

It communicates the president’s interpretation of a law being signed to Congress, executive officials, and the public. It does not amend the statute.

10. Why is the Twenty-Second Amendment relevant to the expansion of presidential power?

It imposed presidential term limits after FDR’s four elections and reflects concern about power accumulating in a long-serving presidency.