Tough Times for the President: Political Adversity and the Sour ...

Over the decades of American history, presidents have employed several means for exercising unilateral power.²⁶ The veto is the most famous of these means. But others also exist, including the removal power, the power to make unilateral appointments to certain offices, the recognition power, pardon and clemency powers, and an array of military powers. Presidents make a variety of substantive decisions and issue executive orders, directives, proclamations, and—with growing frequency—signing statements.²⁷ To stifle attempts—usually from Congress—to inhibit unilateral or other executive actions, presidents also invoke executive privilege to withhold information²⁸ and usually meet with success. Indeed, the use of prerogative power has been a characteristic feature of the postmodern presidency (the period from Ronald Reagan forward),²⁹ and presidential unilateralism flows from several sources.

First, unilateralism is based in the president’s constitutional roles: chief executive, commander in chief, chief diplomat, chief of state, and so on. These roles vest the president with some explicit powers and imply others, and incumbents from Washington through George W. Bush have often read those implications in favor of broader executive authority.

An important aspect of unilateralism is the president’s powers and responsibilities in foreign affairs. Article II of the U.S. Constitution vests the president with the power to nominate ambassadors, recognize and communicate with foreign governments, and negotiate treaties, as well as to be commander in chief of the armed forces. Presidents have drawn on this foundation to expand those to include the power to conclude executive agreements, to exert broad control over the military (including deployment into combat without explicit congressional authorization), and to exercise sweeping powers in the name of national security.

Second, unilateralism is extended by “venture constitutionalism.” When presidents find themselves caught between their need to take action, shape policy, or undertake other measures for which there is not a settled understanding of presidential power, they often engage in behavior that can be characterized as venture constitutionalism: actions that stretch the