The State of the Weak and Vague Presidency
Barack Obama tonight will exercise one of the very few specific Constitutional mandates imposed on the President of the United States. He will "give to the Congress Information of the State of the Union," which is required "from time to time," although the manner of doing so is left, as is so much of Article II, vague. He will also exercise my very favorite presidential power: He will "recommend to their Consideration such Measures as he shall judge necessary and expedient."
I love that clause, because it demonstrates just how vague the presidency was for the framers. That is, the president gets to recommend things to Congress?!? You know who else can do that? You can. I can. Any citizen can; in fact, you don't even have to be a citizen to exercise this particular "power." The framers could have put some force into that clause. They could have forced Congress to vote on presidential proposals, for example. But, no, it's absolutely empty.
They really had no idea what they were creating. How could they? It was something absolutely new in the history of political systems; there was really nothing similar to a president, a one-person executive branch responsible to and representative of exactly the same people to whom the legislature was responsible.
Read through Article I and Article II; it was clear the framers knew exactly what they were doing with Congress, and in fact Article I remains an excellent introduction to what Congress is and what it is meant to do. Article II? Yes, there are a few specific grants of authority or responsibility, but you'll find surprisingly little there. Which explains, by the way, the likely coming debate over executive authority, with conservatives already believing that Obama has improperly used executive orders and regulatory discretion to achieve goals without Congressional action. A surprisingly large chunk of a president's actual Constitutional authority comes down to two clauses: that the "executive Power shall be vested in a President of the United States," and that "he shall take Care that the Laws be faithfully executed." Which means, in both cases . . . what? It's up to the occupant of the office, the Congress and perhaps ultimately the courts.
Most partisans flip-flop based on who is in the White House; between 2001 and 2008 Republicans had an expansive interpretation of presidential powers while Democrats thought George W. Bush was overreaching. Since 2009, it's been mostly the other way around.*
In real life, as opposed to the make-believe world of partisan rhetoric, constraints on presidential action result more from the built-in politics of the office than from parsing the particular meaning of vague constitutional language. If a president tries to do things that the bureaucracy opposes, executive branch departments and agencies have plenty of tools to thwart him, including generating negative publicity, rallying concerned interest groups against him and engaging in all sorts of foot-dragging and passive resistance. Congress can cut to the chase by passing a law to prevent the president's actions. Or the courts can intervene. Whether any of these players can defeat the president depends significantly on political factors -- presidential popularity, the particular players in the particular fight and how intense their preferences are, and the president's own bargaining and political skills.
Which brings me back to the constitutional "power" to recommend. It's sort of a joke and it sort of isn't. One of the things that happens when a president embraces a policy in the State of the Union address or other high-profile setting is that particular policy rises on the national agenda. It pushes people to mobilize for or against it. It signals that the president is committed to the policy, which among other things makes it more difficult for news media, bureaucrats, interest groups and Members of Congress to just ignore it. Which is why interest groups and executive branch departments and agencies fight hard for those mentions; it turns out it really does matter when words come out of the presidential mouth, even if the president can't actually order people to do much of anything.
So (as John Sides and Brendan Nyhan remind us) don't expect the president's approval ratings to change because of the State of the Union message. And don't bother focusing on the futility of his legislative recommendations during a time of divided government. Instead, enjoy the pageantry and the reminders of how important Congress is. And pay attention to the signals Obama sends (and the signals that Congress returns). They're the products of battles that have been going on for months, and hint of battles to come. That's all the State of the Union speech is, but that's not nothing.
*It's also the case that the question of presidential authority is often, and understandably, conflated with the somewhat different question of what the federal government is allowed to do. The latter tends to be more substantive than procedural, and therefore the parties' positions tend to be a lot less tied to which one is in office.
This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.
(Jonathan Bernstein covers U.S. politics for Bloomberg View. He is co-editor of "The Making of the Presidential Candidates 2012." Follow him on Twitter at @JBPlainblog.)
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