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The Power and Authority of the President – How Power is granted and held

With President Trump taking office, and his efforts to “change” the country, there is a call from his supporters to use the Power of the Presidency to effect change in the Bureaucracy and Government. They proclaim that “if President Trump would do this………or do that, he could get things done.” If only this were true.

There is a vast misunderstanding of both the term “power” and bureaucracy and also what power a President has under the Constitution.

This article is an attempt to expand the understanding of Power and Bureaucracy and how it is derived. To begin, let us look at Presidential Power under the Constitution.

 

Presidential Power and Authority from the Constitution

The Constitution provides for the powers and duties of a President. It also provides for the executive authority to act. Article II, Section 2 and Section covers the duties of the President.

Article II, Section 2: The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

Article II, Section 3: He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

So to make the citations easier to understand, here are the powers of the President, including some that are listed elsewhere in the Constitution.

Veto Power – Under Article 1, Section 3, the President has a veto power over “any bill” or “order” passed by both the House and Senate. If he veto’s the bill, then the House and Senate can override the veto with 2/3rds of the membership voting to override.

Executive Orders – The President has the power to issue Executive Orders and Proclamations.

The Proclamation is an “official announcement” that the President is taking a specific action, such as the Emancipation Proclamation being issued by President Lincoln. The Proclamation is not the same as an Executive Order.

The Executive Order is not specifically proscribed in the Constitution. Instead, it is “inferred” from the President’s obligation to “faithfully execute the laws” of the United States.

Powers of Appointment – The President has the power to appoint people to positions within the government. He can appoint ambassadors, cabinet officers and federal judges, subject to confirmation by the Senate.

Pardon Power – Under the Constitution, the President can “grant reprieves and pardons for offenses against the United States”. He cannot grant pardons in the cases of impeachment, when started.

Foreign Policy Powers – The Constitution gives the President exclusive authority to communicate with other nations, recognize foreign governments, receive ambassadors, negotiate treaties and make executive agreements.

Executive agreements are not proscribed in the Constitution. It is another “inferred” power. These agreements are not the same as treaties and do not have the same legal status, unless approved by Congress. Executive Agreements avoid the need for ratification by Congress.

 War Powers – Per the Constitution, the President is the Commander-in-Chief of the Armed Forces. He may threaten or conduct actual military operations to protect US interests, allies, and ensure national security.

The President does not have “unchecked power” for war. The Constitution gives Congress the power to actually declare war. But in times of crisis, the President may order forces to engage, despite a formal Declaration of War. The ability to order forces to engage for unlimited time has been tempered by the War Powers Act, which requires the President to go to Congress after 90 days of military, though in recent conflicts, Congress has abrogated their rights to enforce this provision by granting the President unlimited authority to act, without a formal Declaration of War. (After 9-11, Congress did this with Afghanistan.)

After reviewing the powers granted to the President under the Constitution, one should notice that the Founding Fathers actually gave very little consideration to Executive Branch powers as compared to Congressional powers. Academics are puzzled by this, but there may be a logical reason.

  • The Founding Fathers had just won the Revolutionary War against the British Crown. With Britain, power was fully invested in the Monarch. Fearing a powerful President, the Founding Fathers would limit the powers of the President. (In fact, the Federalist Papers actually shows this concern.
  • Congress is the Legislative Branch that controls much of the various parts of government. It may have been the intent that Congress would serve to restrain a President and his actions.

If so, that intent has failed miserably since Presidential Power has increased significantly, with almost every new Administration.

 

 

Max Weber and the Definition of Power

Power is an elusive concept. People know the word power, but not the basis behind the word. So we ask: What is power? Where does power derive from? How does it affect Presidential actions?

Max Weber, an early 20th Century German academic, provided a definition of power that has been commonly accepted for decades, here and abroad. For Weber, power was the ability to control others, events, resources, and to ensure that what is wanted, does occur, no matter the obstacles and resistance presented. Power is “held, coveted, seized, taken away, lost or stolen” and is exercised in adversarial conflicts.

Weber’s definition of power was “the ability of an individual or group to achieve their own goals or aims when others are trying to prevent them from realising them”. For Weber, power could either be authoritative or coercive.

  • Authoritative power is power that is “legitimate” and people accept it as so.
  • Coercive power is the use of force to achieve an objective which is against the wishes of others.

Weber identified Authoritative Power as existing from three different sources.

  1. Charismatic authority – this type of authoritative power is based on ‘charisma’ – for example the personal qualities an individual has in order to influence a group or person.
  2. Traditional authority – this form of authoritative power comes from established customs passing power down on a hereditary basis  – for example British monarchy
  3. Rational-legal authority – this form of authoritative power comes from certain groups having certain positions of power over subordinate groups – for example a policeman telling you to move.

In 1959, John French and Bertram Raven expanded upon the concept of power by expanding it to 5 types of power. Their bases of power are:

Legitimate Power – “This comes from the belief that a person has the formal right to make demands, and to expect others to be compliant and obedient.” Legitimate power may be unpredictable and unstable. Legitimate power can disappear upon loss of position or title. People only accept the person has power due to the position held.

Reward Power – “This results from one person’s ability to compensate another for compliance.” People will accept the “power” usually expecting something in return for performance. Reward power may be fleeting at best, dependent upon what rewards may be granted.

Expert Power – This power is derived from a person’s high levels of skill and knowledge. People listen to those with Expert Power for ideas and solutions. One might see this power in use when expert consultants are brought in to solve a problem.

Coercive Power – This power comes from the belief that a person can punish others for noncompliance.  The opposite of Reward Power, it  can and often is abused. When abused, it can have the detrimental affect of the person losing that power.

Referent – This is the result of a person’s perceived attractiveness, worthiness and right to others’ respect. Referent power comes from one person liking and respecting another, and identifying with her in some way. Celebrities have referent power, which is why they can influence everything from what people buy to which politician they elect. Referent power is also subject to abuse and can disappear quickly, based upon the perception of those who grant the power to the person.

Informational Power – This results from a person’s ability to control the information that others need to accomplish something.Having control over information that others need or want puts you in a powerful position. In the modern economy, information is a particularly potent form of power. The power derives not from the information itself but from having access to it, and from being in a position to share, withhold, manipulate, distort, or conceal it.

Power exists from a variety of different sources. It can be fleeting or can exist for long periods of time for the power holder. For a President, and especially President  Trump, let’s look at the power bases that he holds.

 

President Trump’s Legitimate Power 

President Trump has numerous bases from which he derives power. But these bases are not permanent, and can be subject to “being revoked” under certain circumstances. And it is exactly that cause which Democrats and some Republicans engage in when attacking President Trump.

As indicated above, President Trump has Legitimate Power based upon the authority granted to him under the Constitution. However, this power can be severely limited by the Judicial or Legislative Branches as we have seen already with Obamacare Repeal and with the Federal Courts striking down the Travel Ban Executive Order.

The problem for President Trump is that he has very few enforcement powers to react to setbacks like Obamacare Repeal or the Travel Ban restriction. To repeal Obamacare, he must rely upon a greatly divided House and Senate to pass a law that he can sign, with no assistance from Democrats. For the Travel Ban, he must rely upon the Supreme Court. Anything else, he risks being brought up on Impeachment charges by the Democrats, and supported by many Republicans.

There is an argument to be made about “Power being Expansive”. This means that more power is available for seizing. We have seen this time and again, especially with Lincoln, FDR and Obama. But most Presidents do engage in seizing.

The problem in seizing additional power is that it must be done with at least tacit approval from Congress, the Courts, Cabinet Departments and even the people. Otherwise, a President could suffer setbacks that further decrease his limited power. Or, as with President Nixon, impeachment for Abuse of Power could occur.

To summarize, President Trump, though he does have legitimate Constitutional Power, it can be fleeting based upon his actions and policies. That power can be severely reduced by the actions of the Congress and Judiciary. Use of that power must be carefully monitored and used, or else he can lose it.

 

Reward Power

President Trump does enjoy some Reward Power. He has a limited ability to offer rewards, mainly in the form of “appearances” with other politicians, rallies, and other events. At times, he might be able to influence legislation to “reward” communities and businesses.

Reward Power usage outside of “public appearances” is very tenuous and risk filled. Even influencing legislation can pose an issue, especially with the media and the Democrats lined up against him.

The Reward Power for President Trump is heavily restricted for his use.

 

Expert Power

President Trump’s Expert Power poses an interesting contradiction. The President has never held office before, so he has no claim to Expert Power there. Instead, his Expert Power comes from being a successful businessman and making “great deals”.

Those willing to grant President Trump Expert Power will be generally his supporters. Others will be loath to consider him an expert at anything. As such, this limits the power severely, especially dealing with the anti-Trump forces.

 

Coercive Power

President Trump does have excellent Coercive Power. This power flows from the Office of the Presidency and his power of Veto.

The President has the power to veto legislation and  overriding a veto is extremely difficult. So he can use this as a Coercive Power to achieve his ends.

Coercive Power may also be used by “refusing” to engage in public appearances with politicians or organizations that wish him to appear at functions. This works to bring those wanting a President to appear at a function more ready to accept what he is proposing.

The Bully Pulpit is also another feature of his Coercive Power. From the Bully Pulpit, he can target specific people, companies, legislation and other items. He can influence legislation in this manner. President Trump’s Twitter account is representative of his Bully Pulpit in use.

The problem is that a President may “overuse” his Coercive Power and excessive usage begins to work against him. Therefore, usage of Coercive Power must be stringently monitored.

 

Informational Power

A President has many sources for information that is confidential or classified. To release that information may be harmful to companies, people, the country or even other nations.

Use and release of restricted information must be based upon the goals of the President. It will generally be used in dealings with Nations, States,  and Foreign Relations. It may also be used in Trade Negotiations and other actions.

Informational Power for a President is a very strong source of power, but its use must be tempered to the situation at hand.

 

Referent Power

The strongest power that a President has is Referent Power. It is power generated by the public’s perception of the President. Yet, it may also be the most fleeting of all powers.

President Reagan and President Clinton were perfect examples of Referent Power in action. Among their supporters, the power was greatest throughout their Administrations. This allowed them to accomplish their goals in most cases.

Obama had incredible Referent Power during his 2008 election campaign and first Presidency. Even opponents showed support for Obama after his election as the first Black President. It would eventually decrease in strength with the policies that he imposed upon

Carter was the modern day President that had little Referent Power. He came into office only in reaction to Nixon’s abuse of power. Neither side was enamored of him, and as time passed, he lost power in all potential power bases.

President Trump’s election was based mostly upon Referent Power. People knew him, knew his background, and identified with his positions. This power, he rode to the Presidency. Currently, this power is under steady attack and is eroding.

 

Attacking Trump’s Power Base

When Trump burst onto the Presidential Race in Jun 2015, it became readily apparent that he was a force to be reckoned with. His Referent Power combined with a perceived Expert Power based upon his business acumen was “frightening” for the political elites of both parties. His Reward Power consisted of promising actions that would be of benefit to the Middle Class.

To blunt Trump, attacks were made on his power “bases”. Critics used social media to spread rumors, and negative articles were written on his personal affairs to try and diminish his Referent Power.

Trump’s Expert Power was attacked through his business history. His four business bankruptcies were the source of continuous articles that suggested he was not a good businessman, and in fact, exploitive of others.

These attacks failed to prevent the Trump Wave and he would be elected President. But, the attacks continue even as President and by both parties, the media, and now, the Judiciary. The attacks occur across all power bases.

Trump’s Legitimate Power is being attacked by the Judiciary and State governments. They are challenging the lawful Executive Orders of the President, and the Judiciary is rewarding them with rulings that stop the Orders from going into effect.

Referent Power continues to be attacked through his personal life and his wife and children. Court lawsuits are being filed claiming that in the past, Trump engaged in sexual attempts and actions against women. His net worth is being questioned. And ties to the Russians and now, that he is a traitor.

Trump’s Expert Power is being attacked by questioning the policy goals, how things will proceed, and especially with any difficulties in getting legislation like Repeal and Replace.

These attacks are going to continue to occur and will worsen as time goes on. The goal of each attack is to diminish the power base of President Trump, so that in 2020, the people will turn to another person as President.

Trump must defend against these attacks in a very aggressive manner, but also with discretion. He has to pick battles he can win legislatively, and in attacks on his personal character, he must decide how to proceed.

So far, the Left, the Judiciary, and the GOPe have damaged the power bases, often significantly. If they continue their attacks and successfully thwart President Trump, or even try to remove him from office by impeachment,then this will create further division of the country. At some point, it could lead to actual Civil/Cultural war, with violence occurring daily.

At this point, we can only watch and wait.

 
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Written by PatrickPu

Former Loan Officer and currently a Case Consultant and Expert Witness in Foreclosure and Lending Litigation cases. Avid follower of NCAA Football and Top 25 teams.

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