Oscar Avatare

12/11/15
Law 100 Honors Essay
An examination of the modern American political world demonstrates that all politics
leads back to one source. The President of the United States. For better or worse, the President is
blamed for every failure, lauded for every success, and scapegoated mercilessly from the day
they enter office to the day they leave it. The fundamental question that must be asked is did our
Founding Fathers intend it to be this way and how have the Presidents powers evolved beyond
the role prescribed to him legally in the Constitution, especially in the 20th and 21st centuries? In
simpler terms, despite Article 2 of the Constitution staying the same, the power of the President
has undoubtedly grown. There is no good answer to this question and that is why I was inspired
to pick this topic. To further narrow down the topic, I decided to focus on the presidents treaty
power, war powers, and executive orders. This topic was just one of many topics I had an interest
in in Law 100 Honors and it took me a while to decide what topic I wanted to do. The overview
of law that I learned in Law 100 Honors this quarter was amazing. From the philosophical
underpinnings of the American legal and political system down to tort law, a massive and varied
amount of law was examined. However, I was inspired to pick this topic because I felt that I
should choose a legal topic that would be relevant nowadays and that has changed over time to
provide a basis for contrast.
To answer this question of the evolution of the Presidents power, the original powers of
the President must be examined. The main responsibilities granted to the President were that they
were the Commander-in-Chief of the armed forces, could make treaties with the consent of the
Senate, veto bills from the legislature, and administer laws.1 The legislative and judicial branch
would provide checks and balances on the power of the executive through the veto and judicial
review. Now while these checks and balances never disappeared the power of the presidency
increased. The modern president after the Second World War can trace their power back to
Franklin Delano Roosevelts presidency when a huge consolidation of power occurred within the
executive. While George Washington, Abraham Lincoln, and Woodrow Wilson all expanded the
powers and role of the president they were anomalies compared to most presidents before FDR.2
In FDR, the Great Depression and the Second World War came together to produce the blueprint
of the powers that the post-war president would have. This is especially apparent in terms of
diplomacy and treaty powers.
The treaty powers delegated to the President are as stated in the Constitution are very
straightforward. Article II, Section 2, Clause 2 states that The President... shall have Power, by
and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the
Senators present concur....3 FDR challenged this precedent heavily over the course of his
1 Executive Power." LII / Legal Information Institute. Cornell, n.d. Web. 7 Dec. 2015.
2 "The Evolution of the Presidency." Ushistory.org. Independence Hall Association, n.d. Web. 7 Dec.
2015.
3 "Treaty Clause." Heritage. N.p., n.d. Web. 7 Dec. 2015.

presidency through executive agreements, and in 1933 he made an executive agreement with the
Soviet Unions foreign minister that stipulated the two nations would recognize each other and
the United States would alert the USSR of the assets that the US held in its banks that was the
property of former citizens of the Russian Empire.4 The lawsuit Belmont v. United States (1937)
was a lawsuit over if the state of New York had the right to that property or if the federal
government had the right to the property.5 The Supreme Court decided that the federal
government had the exclusive right to carry out foreign policy and that executive agreements
were constitutional.6 This ruling established an alternative of how to carry out a legally binding
international agreement with a foreign state. In practice, it went around the Constitution by not
having to get any Senate approval needed to make an international agreement. This is in addition
to another method of international agreement called the congressional-executive agreement
where the President submits his agreement to Congress to be approved like a normal bill from
the legislative process.7 During the Obama administration there have been examples of all these
types of international agreements. The New START treaty passed with more than the 2/3rds of
Senators needed for ratification,8 the Trans Pacific Partnership trade authority bill passed over a
filibuster with 60 votes in the Senate and more than half the House of Representatives as a
congressional-executive agreement,9 and the Iran nuclear deal passed as an executive agreement
because it wasnt vetoed by Congress with both 2/3rds majorities in the House and Senate.10
Examining these developments, it is obvious presidential discretion has grown over time in
regards to foreign relations and international agreements, but to fully understand the presidents
treaty power we must examine Supreme Court cases other than Belmont v. United States.
In the United States, a person has the right to a trial in a jury of their peers. So when the
Supreme Court faced the case of Reid v. Covert (1957) they faced an enigma because the murder
of an American serviceman had taken place in England on an airbase by his wife who was an
American citizen.11 The wife was tried in front of a military tribunal because the executive
agreement the United States had made with the UK that gave US military courts to exert
4 "MILESTONES: 19211936 Recognition of the Soviet Union, 1933." History.state.gov. N.p., n.d. Web.
11 Dec. 2015.
5 "United States v. Belmont." Casebriefs. N.p., n.d. Web. 8 Dec. 2015.
6 Ibid.
7 Treaty Clause
8 "New START: Senate Action." U.S. Department of State. U.S. Department of State, n.d. Web. 6 Dec.
2015.
9 "Senate Approves Fast-track, Sending Trade Bill to White House." TheHill. N.p., 24 June 2015. Web. 8
Dec. 2015.
10 "Vote To Reject Iran Nuclear Deal Fails, Handing Victory To Obama." NPR. NPR, n.d. Web. 7 Dec.
2015.

jurisdiction over military members and their dependents. This case became important in terms of
the treaty clause, the Bill of Rights, and the constitutionality of treaties. The courts ruling
stipulated that no executive agreement or treaty could violate the Constitution by depriving a
civilian of their right to a trial in front of a non-military tribunal.12 Also, it states that the Court
could strike down a treaty if they chose to do so and that the Constitution supersedes all forms of
treaties.13 However, they have never done so because that would pull the Supreme Court too deep
into political issues which isnt their intended realm. This issue is called the political question
and the Supreme Court traditionally avoids these kinds of cases that include an unresolved
political issue between two competing factions.14 This issue becomes much more apparent in the
next case that related to the treaty clause that I am examining. Goldwater v. Carter (1979)
concerns the presidents power to unilaterally withdraw from a treaty. The treaty that Jimmy
Carter withdrew from was the treaty in which the United States agreed to defend the Republic of
China from the Peoples Republic of China and Senator Barry Goldwater sued arguing that
Carter required Senate approval to withdraw from the treaty.15 Ultimately, the Supreme Court
dismissed the case due to the political question of the case and the fact that the Senate hadnt
voted on whether to withdraw from the treaty.16 In this case, the Supreme Court left a grey area
here constitutionally that has been filled up by the executive branch. Looking at my next two
areas of focus, it is apparent this idea of the executive filling in the grey areas of the Constitution
can define the evolution of the presidency.
The power of being Commander-in-Chief has always been the presidents most powerful,
yet precarious duty. To understand the evolution of the presidents war powers the period of the
Cold War must be examined as well as Article 2, Section 2, Clause 1 of the Constitution. The
President shall be commander in chief of the Army and Navy of the United States17 this is
contrasted with Article 1, Section 8, Clause 11 The Congress shall have Power To declare
War.18 This power of war that clearly lay with the Congress was challenged by the President
before the Cold War and only escalated as US troops were deployed worldwide to fight
11 "Reid v. Covert." Oyez. N.p., n.d. Web. 6 Dec. 2015.
12 Ibid.
13 "Reid v. Covert." Wikipedia. Wikimedia Foundation, n.d. Web. 8 Dec. 2015.
14 "Political Question Doctrine." Law.cornell. N.p., n.d. Web. 8 Dec. 2015.
15 "Goldwater v. Carter." Oyez. N.p., n.d. Web. 7 Dec. 2015.
16 Ibid.
17 "Article II." LII / Legal Information Institute. N.p., n.d. Web. 7 Dec. 2015.
18 "The Constitution of the United States: A Transcription." Archives. National Archives and Records
Administration, n.d. Web. 12 Dec. 2015.

communism after the Second World War. The spark that led to the passage of the War Powers
Act of 1973 was Nixons Cambodian Incursion which was without a declaration of war or
authorization of force by Congress.19 The act specified that Congress must be alerted within 48
hours of US military action and must withdraw within 60 days unless Congress declares war or
authorizes force.20 This 60 day limit for war has been exceeded by both Clinton in Yugoslavia
and Obama in Libya and both were taken to court for violating the War Powers Act. In the case
of Campbell v. Clinton (2000), the plaintiffs, who were Congressmen, were told that their case
was moot, didnt have the legal standing through an injury to sue, and retained the ability to stop
the president legislatively.21 Interestingly, one of the presiding judges, Judge Silberman, stated
that "no one" is able "to challenge a Presidents arguably unlawful use of force, because courts
lack judicially discoverable and manageable standards for addressing whether a President
unlawfully used force.22 This admission demonstrates just how helpless the other two branches of
government are in applying checks to the executive branch. Obamas airstrikes in Libya were
subjected to the same principle that there was no standing and that the Congress could use
legislative power to stop the bombings. When we combine the dual issues of terrorism and war
powers we begin to see just how much power the president has accumulated and this is made
apparent in the case of Anwar al-Awlaki. Anwar al-Awlaki was an American citizen who was
involved in terrorism and killed by a drone strike in 2011. This raised the legal issue of if the
executive assumed the role of judge, jury, and executioner when circumstances allow it.
Essentially, according to a Justice Department memo released in 2014, the executive can kill
someone if they pose an imminent threat to Americans.23 While the story of Anwar al-Awlaki is
unique, the president using his executive power to advance his agenda is not. Rather, this kind of
unilateral action is much more common and wide ranging when it comes to domestic matters.
When a president takes unilateral action in the form of an executive order it has the full force of
law and has significant influence over the internal affairs of the government. Executive orders
must be derive their authority from a legislative power given to the president through the
administrative state or direct delegation to the president and these executive orders can be vetoed
and are subject to judicial review.24 Executive orders have no basis in the Constitution, but are
derived from Article II, Section 1, Clause 1 declaring the President the executive and Article II,

19 "War Powers Resolution." Wikipedia. Wikimedia Foundation, n.d. Web. 6 Dec. 2015.
20 Ibid.
21 "Campbell v. Clinton - Opposition." Justice. N.p., n.d. Web. 8 Dec. 2015.
22 Ibid.
23 "Long-sought Memo on Lethal Drone Strike Is Released." Washington Post. The Washington Post,
n.d. Web. 6 Dec. 2015.
24 "Executive Order." Wikipedia. Wikimedia Foundation, n.d. Web. 8 Dec. 2015.

Section 3, Clause 5 which is the Take Care clause that laws must be executed by the
executive.25 Executive orders have led to Japanese internment, integration of the armed forces,
and government affirmative action.26 However, executive orders do have limits on them even in
wartime as seen in the case Youngstown Sheet & Tube Co. v. Sawyer (1952). Here, President
Truman nationalized the steel mills through an executive order during the Korean War and the
Supreme Court ruled against Truman in this case and stated that the president didnt have the
authority to seize private property because no such authority was delegated to him by Congress
or Article 2.27 This case established the firm legal precedent that executive orders must have
some basis in existing or derived presidential powers and statutes.28 Executive orders have taken
on a bigger role in as political polarization has increased and have become especially prominent
during Obamas presidency because of the lack of bills being passed through Congress. This
combined with the massive growth of the administrative state have led executive orders to take
on powers near those of a bill. That is exactly what the lawsuit Texas v. United States (2015)
addresses. It is an injunction put on Obamas executive order that would give an approximate 4
million illegal aliens safety from deportation and the ability to file for a work permit.29 The Fifth
Circuit Court of Appeals ruled in favor of Texas due to the fact that they would incur an
economic loss from this thus giving them standing and allows them to argue that Obama has
overreached his authority.30 The Justice Department has announced it will appeal to the Supreme
Court meaning it will be decided a few months before the presidential elections. This ruling will
have a huge impact on the race for the presidency and will have consequences in terms of the
scope of executive orders.
Through executive orders the legal powers of the president directly extend to almost 3 million
people through the administrative state and almost all citizens are indirectly affected by the
administrative state.31 A direct comparison of the growth of each of the branches demonstrates

25 Ibid.
26 Mayer, Kenneth. "Executive Orders and Presidential Power." (n.d.): n. pag. Polisci.wisc. Web. 8 Dec.
2015.
27 "Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952)." Justia Law. N.p., n.d. Web. 8 Dec.
2015.
28 Ibid.
29 "In the United States Court of Appeal for the Fifth Circuit Texas v. United States." (n.d.): n.
pag. Uscourts. Web. 8 Dec. 2015.
30 Ibid.
31 Turley, Jonathan. "The Rise of the Fourth Branch of Government." Washington Post. The Washington
Post, n.d. Web. 8 Dec. 2015.

this increasing disparity in power. The executive branch has absolutely exploded in terms of
size32 whereas the growth of the legislature33 and the judiciary has been much more restrained by
both population and legislation. This growth has shifted the balance of power to weaken checks
and balances. Starting with treaties, if the president can make any international agreement
through an executive agreement and only have his veto not be overridden by Congress, it gives
him vast powers beyond what was granted to him by the Constitution. Also, since he doesnt
require Senate approval to make an executive agreement the Treaty Clause of Article II, Section
2, Clause 2 of the Constitution has essential been made irrelevant. If a president unilaterally
withdraws from a treaty he also tarnishes Article 2, Section 3, Clause 5 of the Constitution by not
enforcing the Take Care Clause. The president can also effectively ignore the War Powers Act
now without consequences because there is no standing for Congress to sue a president and that
the president now initiates hostilities instead of Congress. This eliminates Congress from any
role in war which is exactly the opposite of what the Founding Fathers intended. Finally, with the
size of the administrative state and historically bad gridlock occurring, the power of executive
orders have increased dramatically due to these factors. The president has filled up the grey areas
of the Constitution with his power and this is dangerous because in an age of such radical
political polarization34 the executive branchs power has grown massively but the ability of other
branches to check it legally has decreased. All this is accepted as political reality. But it is very
dangerous and unhealthy for a democracy based on checks and balances system to allow one of
three supposedly coequal branches to have this much power especially when we are moving
away from the executives constitutional role and are so politically polarized.
What I learned from this topic is that the presidents modern powers go well beyond the
powers granted to him in the Constitution which I hadnt known before this project. Legally, the
topic is an interesting one since many cases against the executive are dismissed because of the
political question doctrine or a lack of standing. The legal problem emerges balancing the need
for a strong executive with maintaining the checks and balances of the Constitution. The topic
relates to the legal doctrine of constitutional law we covered in class examining the legal powers
of each branch of government and what these powers are. What I would like to see happen in this
topic of law is for more bipartisanship to ensue. This passage of laws through the normal
legislative process would eliminate the executives need to use the acquired powers of the
presidency to carry out progress. Of course this is completely unrealistic examining the current
political situation, but it would be a nice reprieve from the incompetence of the previous few
sessions of Congress. We have put ourselves in a position where our president has much more
power than the other branches of the government. Therefore, we can only hope that the executive
is wise in using the immense legal powers of the presidency.
Word Count: 2996
32 Appendix 1
33 Appendix 2
34 "Growing Ideological Consistency." Pew Research Center for the People and the Press RSS. N.p., 11
June 2014. Web. 8 Dec. 2015.

Sources
"Executive Power." LII / Legal Information Institute. Cornell, n.d. Web. 7 Dec. 2015.
"The Evolution of the Presidency." Ushistory.org. Independence Hall Association, n.d. Web. 7
Dec. 2015.
"Treaty Clause." Heritage.org N.p., n.d. Web. 7 Dec. 2015.
"MILESTONES: 19211936 Recognition of the Soviet Union, 1933." History.state.gov. N.p.,
n.d. Web. 11 Dec. 2015.
"United States v. Belmont." Casebriefs. N.p., n.d. Web. 8 Dec. 2015.
"New START: Senate Action." U.S. Department of State. U.S. Department of State, n.d. Web. 6
Dec. 2015.
"Senate Approves Fast-track, Sending Trade Bill to White House." TheHill. N.p., 24 June 2015.
Web. 8 Dec. 2015.
"Vote To Reject Iran Nuclear Deal Fails, Handing Victory To Obama." NPR. NPR, n.d. Web. 7
Dec. 2015.
"Reid v. Covert." Oyez. N.p., n.d. Web. 6 Dec. 2015.
"Reid v. Covert." Wikipedia. Wikimedia Foundation, n.d. Web. 8 Dec. 2015.
"Political Question Doctrine." Law.cornell. N.p., n.d. Web. 8 Dec. 2015.
"Goldwater v. Carter." Oyez. N.p., n.d. Web. 7 Dec. 2015.
Article II." LII / Legal Information Institute. N.p., n.d. Web. 7 Dec. 2015.
"The Constitution of the United States: A Transcription." Archives. National Archives and
Records Administration, n.d. Web. 12 Dec. 2015.
"War Powers Resolution." Wikipedia. Wikimedia Foundation, n.d. Web. 6 Dec. 2015.
"Campbell v. Clinton - Opposition." Justice. N.p., n.d. Web. 8 Dec. 2015.
"Long-sought Memo on Lethal Drone Strike Is Released." Washington Post. The Washington
Post, n.d. Web. 6 Dec. 2015.
"Executive Order." Wikipedia. Wikimedia Foundation, n.d. Web. 8 Dec. 2015.
Mayer, Kenneth. "Executive Orders and Presidential Power." (n.d.): n. pag.Polisci.wisc. Web. 8
Dec. 2015.
"Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952)." Justia Law. N.p., n.d. Web. 8
Dec. 2015.
"In the United States Court of Appeal for the Fifth Circuit Texas v. United States." (n.d.): n.
pag. Uscourts. Web. 8 Dec. 2015.

Turley, Jonathan. "The Rise of the Fourth Branch of Government."Washington Post. The
Washington Post, n.d. Web. 8 Dec. 2015.
"Growing Ideological Consistency." Pew Research Center for the People and the Press RSS.
N.p., 11 June 2014. Web. 8 Dec. 2015.
Appendix 1

Appendix 2