Key Takeaways

• While the US president controls the federal executive branch, which employs four  million people, they can only be elected for two terms, or eight years.
• For Forbes, the US president ranked 3rd most powerful in the world in 2018, and second in 2016.
• Elon Musk has a strong influence in several key global industries: social media, space travel, autonomous driving, electric transportation, and artificial intelligence. According to CNN, he's the most powerful person in the world.

Introduction

Key Powers of the US President

• The president of the US is the head of state, head of government, and commander-in-chief of the country's armed forces.
• She or he is able to execute and enforce laws already created by Congress.
• They appoint the members of the president's cabinet.
• They control the federal executive branch, which employs four  million people.
• They can receive ambassadors from other countries and thereby recognize states.
• The president can issue executive agreements with other governments, which are valid so long as Congress doesn't object.
• The president has full authority over the CIA and EPA. They also appoint the heads of over 50 federal commissions, such as the Federal Reserve Board or the Securities and Exchange Commission.

• For example, President Biden, on his first full day in office, signed 10 executive orders aimed at improving the country's pandemic response.
• Another example is how Donald Trump managed to withdraw the US from several multilateral agreements, including the Paris climate agreement.

Key Power Limitations of the US President

• US presidents can only be limited for two terms.
• While the president can pardon people and name federal justices, these decisions must be approved by the Senate.
• The US president can't introduce legislative bills. They can only talk about a topic and pressure Congress to act.
• The president can veto a bill, but that can be overridden with a two-thirds majority in the House and the Senate. Only 7% of presidential vetoes have been successful for this reason.
• The president can also pass executive orders with the power of law, but these can also be overturned in court, or Congress can pass a countering law. The next president can revoke the order.
• The US president can't declare war - that is up to Congress. They also can't determine how federal money will be spent, nor interpret laws.
• Donald Trump's agenda, for example, was limited by Congress and members of his own party in Congress, and investigations by law enforcement agencies as well as media critique and scandals had some limiting effect.

• Another example is the double impeachment of Donald Trump, though it is debatable how much that limited his power.
• Also, the Supreme Court blocked President Biden's vaccine mandate for large employers.
• A final example is how Senator Joe Manchin whittled down President Biden's Build Back Better Agenda. The $6 trillion social spending plan became $1.75 trillion after the senator had the deciding vote in an evenly split Senate.

US Presidential Power - Context

• Forbes measures individual global power in four ways: power over people, financial resources (where GDP counted for heads of state), power in multiple spheres (e.g., various industries), and active use of the power. By those standards, it ranked the US president in 2018 as #3 most powerful in the world, after the presidents of China and Russia. In 2016, Russian President Vladimir Putin was ranked number 1, and the US president was second. Forbes has not compiled such lists more recently.
• However, each entity has different criteria for measuring power, and for CNN, in April this year, Elon Musk was the most powerful person. He has a strong influence over various key industries that are influencing the present and future: social media, space travel, autonomous driving, electric transportation and artificial intelligence.
• While the US president has military and political power, economic forces and big transnationals are often stronger, globally, meaning some of the top billionaires may have more power. Because election or policy favors can be bought in most countries, financial or economic power is often seen as trumping political power.
• On the other hand, the US has global hegemonic power. It has the largest economy, going by GDP, at $23 trillion last year. It also has the largest military budget, at $801 billion - bigger than the next nine largest defense spenders. Global Fire Power also ranked the US first for military strength, based on its manpower, air, land and naval power, logistics, geography, and natural resources.

 

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• Last year, the US was ranked the most powerful country in the world by the CEOWORLD magazine. Beyond the US's economic and military power, the magazine noted the country's large cultural impact through the entertainment industry. CEOWORLD considered 7 factors: political stability, economic influence, defense budget, weapons, global alliances, soft power, and military strength.
• But, opinions on which person or which position is the most powerful, globally, may vary by ideology and geopolitical position. For a British Herald readers poll in 2019, Indian Prime Minister Narendra Modi was the most powerful world leader. The British Herald is a smaller media organization, with strong Indian influence in its ownership.

Research Strategy

Key Takeaways

• In the execution of executive powers informed by Article II of the Constitution, any action that the president undertakes is deemed ipso facto lawful, and the president cannot be civilly or criminally litigated when executing their mandate.
• President Nixon sought to employ the doctrine of executive privilege to prevent his subordinates from revealing information about the Watergate scandal. He claimed executive privilege for communications that took place in the Oval Office.
• According to the 1973 memorandum by the Office of Legal Counsel, "the prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions, and violate the separation of powers."

Introduction

Article II of the Consitution

Separation of Powers and Executive Privilege

• The Checks and Balances system in the US Constitution ensures the separation of powers among the arms of government. Congress has the power to impeach and convict the president. The House of Representatives has the power to bring impeachment charges against the president whereas the Senate has the power to convict and remove the president from office.
• Before Congress can impeach the president for treason, bribery, or other high crimes and misdemeanors, it has to obtain information relating to the alleged crimes. The president can in turn use his executive privilege to block the courts or congressional committees from investigating their conduct.
• According to Article II of the Constitution: Section 2, Clause 3, the doctrine of executive privilege gives the president the authority to withhold documents in their possession or within the possession of the executive. Presidents employ the doctrine to prevent courts or congressional committees from investigating their conduct by blocking access to the information requested by the investigations. They also employ executive privilege to resist the actions of courts or congressional committees that require their subordinates to divulge communications from or to the president.

• President Nixon sought to use the above privilege to prevent his subordinates from revealing information about the Watergate scandal. President Nixon claimed executive privilege for communications that took place in the Oval Office. After facing an investigation by the Judiciary Committee and the Supreme Court, he resigned to avoid facing impeachment by Congress. After Vice-President Gerald R. Ford assumed the presidency, he pardoned Nixon for all charges relating to the Watergate scandal.

• The president has the power to violate the law in the quest to protect and defend the nation during emergencies. In such events, they can bypass statutory and constitutional provisions and not face civil or criminal prosecution.
• The constitution envisions that in times of conflict, the executive should work with other branches of power in executing its national security mandate. Despite the president's emergency powers being protected in the constitution, the executive may be found culpable for gross abuse of executive power wherein Congress can impeach them for such violations.

Department of Justice Memorandums

• The policy of the Department of Justice is that the president is above the law. It is guided by a legal opinion issued by the Office of Legal Counsel (OLC) in its 1973 and 2000 memorandums.
• In its 2000 memo, the Department of Justice reaffirmed the legal opinion from the 1973 OLC memorandum, issued during the Watergate scandal. It says that the persecution of a sitting president would undermine the capacity of the executive branch to perform its constitutional functions "and violate the separation of powers."
• Guided by the 1973 and 2000 OLC memorandums, the president has immunity in civic and criminal suits. As such, the Attorney General cannot prosecute the president. To resolve this impasse, the Department of Justice's legal opinion is that it is up to Congress to fulfill its constitutional obligations, including the capacity to impeach the president. Additionally, a grand jury could continue to gather evidence during the period of immunity and can indict a president when they leave office.
• Based on 1973 and 2000 OLC memos, President Trump claimed his immunity from state judicial process when he was subpoenaed for his tax returns when under investigation for financial crimes. However, the Supreme Court ruled that he was facing an investigation for his conduct as a private individual not in the execution of his presidential mandate.

Statute of Limitations

• The president of the United States has a five-year statute of limitations to be prosecuted for any criminal offenses that were done while in office. Given that they have immunity over criminal prosecution while in office, they can only face criminal prosecution for offenses that took place in their last term. The five-year statute of limitations often can timeout before criminal offenses committed by the president can be investigated and prosecuted resulting in them being above the law.

No President is Above the Law Act of 2020

• No President is Above the Law Act of 2020 is an example of proposed legislation to limit protections for the president. It seeks to pause the statute of limitations for federal criminal offenses that are committed by the president or vice president before or during their term of office. If passed, the law would allow the prosecution of the president or vice president for criminal acts.

Research Strategy