Missouri Bar Citizenship Education
The Missouri Bar Constitution Day Program


THE ROLE OF THE PRESIDENT IN THE AMERICAN CONSTITUTIONAL SYSTEM

A Joint Project of the Missouri Bar and HEC-TV Live

September 16, 2011

STUDY GUIDE
(Prepared by Millie Aulbur, Director of Citizenship Education, The Missouri Bar)

INTRODUCTION

The Missouri Bar and HEC-TV are proud to host The Missouri Bar Constitution Day Program for the fourth consecutive year.  This year we are pleased to announce that the program will be broadcast from White Haven, the St. Louis family home of Julia Dent Grant, wife of President Ulysses S. Grant.  The Grants spent time there prior to the Civil War. (See http://www.nps.gov/ulsg/index.htm for more information about White Haven.)   The reason for broadcasting from White Haven is that the 2011 Constitution Day program will focus on Article II of the Constitution, which created the executive branch of government.  Thus, it is fitting that the program originates from a place connected to one of the forty-three  men who have served as President of the United States.

Political scientists, historians, biographers and tabloid-like reporters have written volumes about Presidents and their constitutional powers and the use or abuse of those powers.  The 2011 Constitution Day Program will have two different live events: The 10:00 a.m. broadcast will focus on the President and domestic issues and the 1:00 p.m. broadcast will focus on the President and international issues.  Both programs will feature taped statements from two former Presidents—George H.W. Bush and William J. Clinton.  Constitution Day participants will have the opportunity to listen to a panel of experts on these topics and to submit their own questions and comments to the panel.  The panel members are:
• John Truman, great nephew of President Harry S Truman.   Mr. Truman is a member of The Missouri Bar, served as a defense attorney at the My Lai trials and has practiced law with F. Lee Bailey. 
• Greg Willard, former attorney for President Gerald Ford.  Mr. Willard is a partner with the law firm Bryan Cave LLP.  He is also an Adjunct Professor at the St. Louis University Law School, where he teaches a course on presidential power.
• Dr. Dave Robertson, Political Science professor at the University of Missouri-St. Louis.

Objectives: 
Students will be able to:
1. Identify and explain the purpose of Article II of the United States Constitution.
2. Evaluate and defend the role of the President in the American Constitutional System.
3. Explain how the executive branch has evolved since 1787 and the implications of these expanded powers.
4. Compare and contrast the powers and duties of George Washington’s presidency with the present day presidency.
5. Explain the concept of the rule of law and how it applies to the American presidency.
6. Discuss current constitutional presidential controversies as they pertain to Article II.

Purpose of the study guide
This study guide is intended as a resource for classroom teachers to prepare students for the Constitution Day broadcasts and to provide follow-up activities.  The study guide has background materials, classroom activities, enrichment suggestions and links to outstanding Internet resources. 

THE MAKING OF THE CONSTITUTION AND THE BILL OF RIGHTS

We recommend several excellent websites for exploring the philosophical and historical foundations and for learning about the Constitution and the Bill of Rights, and for information about the Constitutional Convention of 1787 and the constitutional ratification process:
• The National Archives site at http://www.archives.gov
• The National Constitution Center at http://constitutioncenter.org.
• The Constitutional Sources Project at http://consource.org


THE ROLE OF THE PRESIDENT
IN THE AMERICAN CONSTITUTIONAL SYSTEM

THE RATIFICATION DEBATES OVER THE PRESIDENCY
The Framers of the Constitution debated a great deal about what the powers of the presidency should be.  On the one hand, they did not want to create a tyrannical monarchy like that of Great Britain, one of the major reasons cited in the Declaration of Independence as justification for the Revolution of 1776.    But on the other hand, one of the reasons the Framers were meeting in Philadelphia in 1787 was that the lack of executive power under the Articles of Confederations had proven problematic.  How much power the President should have was one of the arguments the Federalists (for ratification of the Constitution) and Anti-Federalists (against ratification) engaged in during the ratification process.  (The Federalists Papers and Anti-Federalists Papers are excellent original document resources for understanding how each side felt and both can be found online—Federalists Papers, http://usgovinfo.about.com/library/fed/blfedindex.htm and Anti-Federalists Papers, http://www.wepin.com/articles/afp/index.htm.)

The Federalists’ basic argument was not to worry about a President becoming too powerful because there were enough checks and balances within the Constitution to prevent abuse of power.  The Anti-Federalists’ vehemently disagreed and feared that the presidency would become a monarchy.  Here is part of what George Clinton said about the presidency in Anti-Federalist Paper #67:

And wherein does this president, invested with his powers and prerogatives, essentially differ from the king of Great Britain (save as to name, the creation of nobility, and some immaterial incidents, the offspring of absurdity and locality)? The direct prerogatives of the president, as springing from his political character, are among the following: It is necessary, in order to distinguish him from the rest of the community, and enable him to keep, and maintain his court, that the compensation for his services, or in other words, his revenue, should be such as to enable him to appear with the splendor of a prince. He has the power of receiving ambassadors from, and a great influence on their appointments to foreign courts; as also to make treaties, leagues, and alliances with foreign states, assisted by the Senate, which when made becomes the supreme law of land. He is a constituent part of the legislative power, for every bill which shall pass the House of Representatives and Senate is to be presented to him for approbation. If he approves of it he is to sign it, if he disapproves he is to return it with objections, which in many cases will amount to a complete negative; and in this view he will have a great share in the power of making peace, coining money, etc., and all the various objects of legislation, expressed or implied in this Constitution…. He is the generalissimo of the nation, and of course has the command and control of the army, navy and militia; he is the general conservator of the peace of the union-he may pardon all offenses, except in cases of impeachment, and the principal fountain of all offices and employments. Will not the exercise of these powers therefore tend either to the establishment of a vile and arbitrary aristocracy or monarchy? The safety of the people in a republic depends on the share or proportion they have in the government; but experience ought to teach you, that when a man is at the head of an elective government invested with great powers, and interested in his re-election, in what circle appointments will be made; by which means an imperfect aristocracy bordering on monarchy may be established.

(Emphasis added.)

Here is how Alexander Hamilton responded, in part, to the Anti-Federalists in Federalist Paper # 69:
The one [referring to a president] would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church!
Of course, the Federalists prevailed or we would not be celebrating the 224th anniversary of the Constitution!

ENUMERATED POWERS OF THE PRESIDENCY
Article II of the Constitution lists the following presidential powers or roles:
1. Commander and chief of the armed forces.
2. Head of the executive branch.
3. Granting reprieves or pardons.
4. Making treaties subject to the advice and consent of the Senate.
5. Nominating ambassadors, public ministers, consuls, and judges of the Supreme Court and other federal courts.
6. Recommending legislation to Congress.
7. Reviewing legislation that Congress has passed and returning bills to which the President objects.
8. Receiving ambassadors and other public officials.

THE EVOLUTION AND EXPANSION OF EXECUTIVE POWERS
George Washington had three departments or cabinets—State, War and Treasury.  He had no agencies, commissions or bureaus.  Currently there are 15 departments, 69 agencies and 68 commissions.  Each of these has additional bureaucratic levels.  The agencies and commissions are both quasi-legislative and quasi-judicial.  They are quasi-legislative in that they make and enforce federal regulations.  For example the Federal Communications Commission makes rules about radio and television broadcasting.  They are quasi-judicial in that they conduct hearings on these matters.  For example, the FCC has hearing to determine if a television program has violated the FCC’s rules about obscenity.    Although Congress created these agencies and has oversight powers over them as well as controlling the budgets for them, former Representative Lee Hamilton says that Congress rarely, if ever, provides much oversight.  However, the federal courts hear and rule upon cases concerning the actions of the various agencies and commissions.

Historians and political scientists attribute the greatest expansion of presidential powers to the following Presidents:
• Andrew Jackson because he was the first President to extensively exercise the presidential power of veto.
• Abraham Lincoln because of the various actions he took during the Civil War.
• Theodore Roosevelt because of his “bully pulpit” leadership style.
• Franklin Roosevelt usually considered to be the President who most expanded executive powers, because of his New Deal programs to get the country out of the Great Depression and because of his leadership during World War II.   Several Presidents who followed FDR, most notably Lyndon Johnson, further expanded the many social programs begun under FDR.  Many of these programs led to the various agencies and commissions now in existence.

For outstanding lessons on executive power, go to the Bill of Rights Institute’s website: http://www.billofrightsinstitute.org/page.aspx?pid=708 . 


RULE OF LAW AND THE PRESIDENCY
The overarching philosophy of our system of government is the rule of law. The rule of law encompasses the following principles:
• The people are sovereign (no one is above the law).
• The need for a written body of law so that everyone knows what the law is (the Constitution, case law and statutory laws).
• Procedural due process (search warrants, jury trials, no double jeopardy, no self-incrimination, etc.)
• A fair and impartial judiciary where disputes are settled.

Arguably, the principle of the rule of law most often cited when discussing Presidents is the idea that NO ONE IS ABOVE THE LAW.  (For a lesson plan about Presidents and the rule of law, go to www.mobar.org, the Educators section, then to Constitution Day where the Rule of Law lesson plan is listed.)  Occasionally, the Supreme Court of the United States or Congress has had to remind Presidents that they are not above the law:

• Abraham Lincoln—suspension of habeas corpus, See Ex Parte Merryman (a federal district court case from 1861) and Ex Parte Milligan, 71 U.S. 2 (1866)
• Franklin Roosevelt trying to pack the Supreme Court and Congress refused to do so.
• Harry Truman and the steel strike, See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
• Richard Nixon and the Watergate tapes, See United States v. Nixon, 418 U.S. 683 (1974),
• Bill Clinton and civil law suits, See Clinton v. Jones, 520 U.S. 681 (1997)
• George W. Bush and Guantanamo Bay detainees, See Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

CURRENT CONTROVERSIAL EXECUTIVE ACTIONS
One political scientist has opined that the War Powers Act, Signing Statements and Executive Orders are the “trifecta of modern day abuses of executive power.” 
• War Powers Act of 1973 was passed by Congress as a check on the President’s role as Commander-in-chief.  Essentially, the act requires that a President may not commit the U.S. military to a long-term conflict without the consent of Congress.  Article I, Section 8 of the Constitution grants Congress the power to declare war.  The last time Congress exercised this power was World War II.   Basically, the act provides that the President must notify Congress within 48 hours of committing armed to military action and furthermore forbids armed forces from remaining for more than 60 days without a congressional declaration of war. 
This is what the Library of Congress has said about the War Powers Act:
Aside from its use as a rhetorical device, the War Powers Resolution has been of little worth in reordering presidential-congressional relations in the years since its enactment. All Presidents operating under it have expressly or implicitly considered it to be an unconstitutional infringement on presidential powers, and on each occasion of use abroad of United States troops the President in reporting to Congress has done so consistently with the reporting section but not pursuant to the provision.
Some examples of when the War Powers Act was ignored are:
a) Reagan in Grenada, Lebanon and El Salvador
b) George Herbert Walker Bush in Panama
c) Clinton in Kosovo
d) George W. Bush to some extent in Iran and Afghanistan (Congress did appropriate money for these conflicts and some argue that this was a “tacit” declaration of war.)
e) Obama in Libya.
• Executive Orders are just as they sound—orders issued by the President.  All Presidents have issued executive orders.  Although the Constitution does not specifically provide for the President to issue such orders, historians argue that there is a vague grant of such an executive power implied throughout Article II. Some of the orders have had very good intentions—President Truman desegregating the military.  Others have had good intentions but have caused great harm—President Roosevelt ordering the internment of Japanese-Americans during WWII.

The United States Supreme Court has declared two of the orders unconstitutional:
a) President Truman placing all steel mills under federal control.  See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
b) President Clinton attempting to prevent the U.S. government from contracting with organizations that had strike-breakers on the payroll.

• Signing Statements are statements made by a President when he signs a law.  The statements vary as to purpose.  Until the 1980s, most statements were celebratory—the President stating that signing a particular law was a historical event.  (President Johnson signing the Civil Rights Act of 1964 and the Voting Rights Act of 1965.) Sometimes the statements address a President’s constitutional concerns.  Sometimes they express concerns about how the President will be able to enforce a law.  Occasionally, the President states that although he is signing a bill into law that he might not enforce it in its entirety.   The Constitution does not specifically provide for signing statements and certainly does not provide that a President may pick and choose what part of a law he will enforce.  Critics of these kinds of signing statements argue that the President has two constitutional choices:  Sign the bill and enforce it as is the role of the President in our system of separations of powers or veto it.

The first President to issue a signing statement was James Monroe. Until Ronald Reagan became President, only 75 statements had been issued; Reagan and his successors George H. W. Bush, Bill Clinton and George W. Bush produced over 400 signing statements among the four of them.  President Obama has issued 18 signing statements thus far.

For more information, go to http://www.presidency.ucsb.edu/signingstatements.php?year=2004&Submit=DISPLAY#axzz1Vyy6FF45.

DISCUSSION QUESTIONS FOR STUDENTS
AND SUGGESTIONS FOR FURTHER STUDY AND ENRICHMENT

1. Upon consideration of how the presidency has evolved over the last 224 years, who do you think had the best argument during the ratification process—the Federalists or the Anti-Federalists?
• Enrichment activity:  Look at the arguments of both the Federalists and Anti-Federalists pertaining to the presidency.  Divide the class into two sides and conduct a modern day Federalist/Anti-Federalist debate about the presidency.
• Enrichment activity:  Have the students research how various Presidents have used their executive powers in both domestic and international matters.  (Some excellent examples may be found in particular with:  George Washington, Thomas Jefferson, James Madison, James Monroe, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, Franklin Roosevelt, Harry Truman, Dwight Eisenhower, John F. Kennedy, Lyndon Johnson, Richard Nixon, Ronald Reagan and George W. Bush.)
• Further study:  After further research, as a class, discuss which President(s) the students think have been the most influential in expanding the role of the President.

2. Of the enumerated powers, which refer to domestic matters and which refer more to international matters?  Which of these do you think most empower the President?  Why?
• Further study:  What challenges or problems has President Barack Obama had during his presidency?  Which ones are international affairs and which ones are domestic matters?  What solutions, if any has he proposed, for these challenges and problems?  Where are those solutions found in the Article II of the Constitution?

3. What role, if any, do you think political parties have contributed to how the role of the President has changed since Washington’s time?
• Further study:  Discuss how presidential candidates are chosen i.e. primaries, caucuses, conventions, etc.  Why do you think the Framers of the Constitution did not provide a process for choosing presidential candidates in the Constitution?   Do you think the Constitution should be amended to provide for a process?  If so, what would be your proposal?

4. In a debate about the presidency, which side would you prefer and why: 
• The modern President is more like a king than the head of a co-equal branch of government.
• The modern President must have more powers than the Framers envisioned to lead a country of 50 states and to be a leader in the modern world.

5. Do you think the current executive branch with all of its departments and agencies blurs the principle of the separation of powers?  Why or why not?
• Enrichment:  Former Congressman Lee Hamilton has written extensively about how Congress has ceded some of its constitutional powers to the presidency.    Have students read this essay and some of his other essays at: http://congress.indiana.edu/congress-keeps-ceding-power-the-president
After reading the essays, consider whether you agree or disagree with Rep. Hamilton.

6. How would you describe the War Powers Act?  Do you think it has been effective?  Why or why not?
• Enrichment:  Have students read in depth about the War Powers Act at http://www.loc.gov/law/help/war-powers.php. Discuss the merits and weaknesses of the act.  Have students consider how Truman’s commitment of troops to Korea and several Presidents’ (Eisenhower, Kennedy and Johnson) commitment of troops in Vietnam may have led to this act.  Has the War Powers ever been evoked since becoming law?

7. What are executive orders?  How have they been used to promote the constitutional rights of individuals?  How have they been oppressive?  Is there a check on these orders?
• Enrichment:  Have students go this website for a full list of executive orders:
http://www.archives.gov/federal-register/executive-orders/disposition.html

8. What are signing statements?  Do you think these are constitutional?  Why or why not?
Enrichment:  The Supreme Court of the United States has ruled that Presidents may not line item veto of the budget or other bills.  See Clinton v. City of New York, 524 U.S. 417 (1998).  How is a signing statement that says the President will not enforce a portion of a law different from a line item veto or is it?

• Enrichment:  Have students go to this website for factual information about signing statements: http://www.presidency.ucsb.edu/signingstatements.php?year=2004&Submit=DISPLAY#axzz1Vyy6FF45 .

9. One of the issues that arises in campaign years is the presidential power to nominate federal judges, especially Supreme Court justices?  Why do you think that has become a campaign focal point?

• Enrichment:  Have students read the Supreme Court cases listed under the Rule of Law and the President section.

(See alignment with Missouri’s Social Studies Standards on the following page.)


PRESIDENTIAL TRIVIA—FOR FUN!
(Answers on the following page.)

1. Who was the only president never elected as either President or Vice-President?
2. Which President (before becoming President) defended the British soldiers in the Boston Massacre case?
3. Who was the only President elected more than twice?
4. Which President served non-consecutive terms?
5. Who was the only bachelor President?
6. What is the most common first name for Presidents?
7. How many presidents share a last name with another President?
8. How many sitting Vice-Presidents have been elected as President?
9. How many sitting Vice-Presidents became President because the sitting President was no longer able to serve?
10. Who served as Speaker of the House of Representatives after serving as President?
11. Who became Chief Justice of the Supreme Court of Missouri after serving as President?
12. Who was the last person to serve as President who did not have a college degree?







ALIGNMENT WITH MISSOURI’S SOCIAL STUDIES STANDARDS

Constitution Day        Show Me             Performance Course level expectations/
    Objectives Knowledge/Content    Process   depth of knowledge
Explain the purpose of Article II of the United States Constitution. Social Studies 3 Principles and processes of governance systems. 1.1 Develop questions and ideas to initiate and refine research. 1-A     1

Evaluate and defend the role of the President in the American Constitutional System. Social Studies 3 Principles and processes of governance systems.
1.2 Conduct research to answer questions and evaluate information and ideas. 2-C       4
Explain how the executive branch has evolved since 1787 and the implications of this evolution. Social Studies 3 Principles and processes of governance systems.
1.2 Conduct research to answer questions and evaluate information and ideas. 1-A/7-E     3

Compare and contrast the executive branch of George Washington’s presidency with the present day presidency. Social Studies 3 Principles and processes of governance systems.
3.6 Examine problems and proposed solutions from multiple perspectives. 1-A/B     3

Explain the concept of the rule of law and how it pertains to the American presidency.
Social Studies 3 Principles and processes of governance systems 1.2 Conduct research to answer questions and evaluate information and ideas. 1-A/7-E     4

Discuss current constitutional presidential controversies.
Social Studies 3 Principles and processes of governance systems 1.2 Conduct research to answer questions & evaluate information &ideas. 2-C       4

Trivia answers:
1. Gerald Ford
2. John Adams
3. Franklin D. Roosevelt
4. Grover Cleveland
5. James Buchanan
6. James (6—Madison, Monroe, Polk, Buchanan, Garfield, Carter)
7. Ten—John and John Q. Adams, William and Benjamin Harrison, Andrew and Lyndon Johnson, Theodore and Franklin Roosevelt, George H.W. and George W. Bush.
8. Four--John Adams, Thomas Jefferson, Martin Van Buren and George H.W. Bush. 
9. Eight—John Tyler, Millard Fillmore, Andrew Johnson, Chester Arthur, Theodore Roosevelt, Calvin Coolidge and Lyndon Johnson.
10. John Quincy Adams
11. William Taft
12. Harry S Truman