Welcome to Part Three of Trust and the Presidency!

In Part One, you learned that the framers of our Constitution had a lot of trust issues. Among these were whether the presidency could be trusted to serve the common good rather than a favored faction and whether the president could be trusted with enough power to deal with the problems of the day without tyrannizing the people.  You learned they tried to overcome their trust issues by creating a presidency with constrained powers and autonomy that would be accountable to Congress. They also attempted to insulate the presidency from the politics of faction through the invention of the Electoral College.

In Part Two, you learned that, contrary to the framer’s intentions, the presidency was politicized when the state legislatures required their electors in the Electoral College to represent the popular vote in their states. In so doing, the presidency gained a power base and accountability to the voters in addition to accountability to Congress. This shift in power and accountability can sometimes motivate populist or partisan presidents to try to weaken constitutional constraints that get in the way of their ambition.

Part Three of this course will review how the powers initially assigned to the presidency were deepened and the implications of those changes. We will review three powers in particular: war-making, treaty-making, and supervising the federal bureaucracy.  As in the times of the framers, the issue is whether the presidency can be trusted with enough power to deal with the problems of the day without tyrannizing the people.

PART THREE: ORIGINAL POWERS DEEPENED

A. Introduction

The two primary trust-related debates about the presidency in the framer’s time continue to this day. Only the words have changed. The old worry, about how to ensure that a president will be strong enough to deal with the nation’s challenges without becoming a tyrant, is echoed in today’s debate over the so-called “unitary executive theory.[1]”  This part of the series of Trust and the Presidency focuses on issues related to that debate.

According to supporters of the unitary executive theory, presidents may act within their explicit and implied powers without Congressional interference.[2] From this perspective, so long as the President is acting within Article 1 powers, any attempt to limit the President’s control over the Executive Branch is unconstitutional, and all Congressional inquiries into Executive Branch operations can be rejected unless clearly linked to the legislative function.

Dissenters from the theory argue that Congress can regulate any presidential powers that are not clearly spelled out in the Constitution – so long as Congress does not obstruct constitutional obligations placed on the presidency.[3] They base their argument on the Necessary and Proper Clause (Article 1, Section 8) of the Constitution. That clause says

“Congress shall have power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The debate is long-standing and remains unresolved. You may come to your own conclusions. As you read and think things through, keep in mind the trade-offs discussed earlier, between serving partisan interests or the common good, having enough power to meet the obligations of the day without that power tempting the presidency into tyranny, autonomy versus accountability, and accountability to congress versus accountability to the voters.

B. War Making Powers

War powers are consequential. Wars can cost us our limbs, our lives, and the lives of our loved ones.  They can cause shortages, divert resources, raise taxes, raise inflation rates, and increase debt.  Wars well won, as in World War I and World War II, can increase our global standing. Wars poorly chosen and poorly fought can also reduce our standing in the world, earning us tenacious enemies willing to try to strike us on our own soil.

Over time, the presidency has gained new authorities to initiate war, engage in hostilities short of war, and direct the deployment of military forces for a wide variety of purposes. Congress and the President have enacted 11 separate formal declarations of war against foreign nations in five different wars.[4] By contrast, between 1789 and now, only five countries and four organizations have attacked U.S. territory.[5]  Congress and the President have also enacted 70 authorizations for the use of force (AUMF) without formal declarations of war.[6] These have been directed against nations, non-state organizations such as Al-Qaeda, pirates, slavers, and drug lords.  Several of these authorizations have been quite broad in scope (allowing operations in entire regions or the entire planet) and open-ended, subject only to presidential determinations that the intended objectives had been achieved.[7]

Several of these authorizations are still in effect, despite the end of the original conflicts. The most notable example is the 2001 authorization giving the President the authority to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” (P.L. 107-40; 115 Stat. 224) This AUMF is unprecedented not only in its unlimited geographic scope but also in its designation of organizations and persons in addition to nations.

On their own initiative, presidents have also directed our military forces to deploy hundreds of times. They have directed the military to deploy for combat, punitive expeditions, displays of force, the protection of US interests in unstable situations, evacuations of citizens, military-to-military diplomacy, joint training exercises, disaster recovery, and humanitarian operations. As of 2019, the U.S. had troops engaged in combat in 14 countries, directed drone strikes in seven countries, provided counter-terrorism training in 65 countries, participated in military exercises in 26 countries, and operated military bases in 40 countries for a total global presence in 80 countries.[8]

The expansion of presidential war powers has sparked a long-running debate. One position, favored by some originalist constitutional scholars, is that Presidents are constitutionally required to obtain congressional authorization for any use of military force, except when directly responding to an attack.  Others claim that the President has virtually unlimited constitutional authority to order the use of military force unilaterally. One argument from this camp is that whatever the Founders thought about the distribution of war powers, a longstanding practice of unilateral presidential war-making has emerged since the Founding, especially after World War II. That practice, they argue, involves not only repeated, unilateral presidential uses of military force but also congressional acquiescence in that practice.

History does provide today’s presidents with precedents for expanded powers. The first crack appeared when President Polk obtained congressional approval to go to war against Mexico in 1846 only after initiating hostilities in Texas against Mexico.[9] The second and more serious crack was opened up when the Truman administration declared a “police action” in South Korea between June 1950 and July 1953.[10]  That war eventually killed 44,499 Americans, over 162,000 South Korean soldiers, as many as 526,000 North Korean soldiers, almost 209,000 Chinese soldiers, and as many as 3 million civilians. In 1961, without congressional approval, President Kennedy sent helicopters and troops to South Vietnam as part of secret operations against the Viet Cong.[11]  In 1964, Congress provided President Johnson an authorization for the use of military force in Vietnam but chose not to declare war formally. Congress repealed the authorization in 1971, but President Nixon chose to continue the war, citing the Commander in Chief Clause, and enlarged the war to include Cambodia and Laos.

Congress tried to pull back some de facto presidential war powers with the 1973 War Powers Resolution but may have done the opposite. The resolution allows the President to send the U.S. Armed Forces into action abroad only by declaration of war by Congress, statutory authorization, or in case of an attack upon the United States, its territories or possessions, or its armed forces. The resolution requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without congressional authorization for the use of military force (AUMF) or a declaration of war by the United States. The joint resolution has the force of law and was passed by two-thirds each of the House and Senate, overriding the veto of the bill by President Richard Nixon.

The Office of Legal Counsel has construed specific passages of the 1973 War Powers Resolution as recognizing a measure of unilateral presidential power. They point in particular to the Resolution’s requirement that Presidents either obtain congressional authorization within sixty days of introducing armed forces into hostilities or cease the operation. This provision, they claim, implicitly accepts a unilateral presidential authority to initiate military conflicts for less than sixty days in at least some circumstances. Once engaged, however, Congress may be reluctant to insist on maintaining its 60-day limit for fear of undermining a hoped-for victory.  

Many of the President’s war-making authorities come with additional “standby” authorities that affect domestic policy.[12] A declaration of war automatically provides the President and the Executive Branch with special powers. A declaration activates statutes that empower the President to interdict all trade with the enemy, to order manufacturing plants to produce armaments and seize them if they refuse, to control transportation systems in order to give the military priority use, and to command communications systems to give priority to the military. A declaration triggers the Alien Enemy Act, which gives the President substantial discretionary authority over nationals of an enemy state who are in the United States.  It activates authorities to use electronic surveillance for purposes of gathering foreign intelligence information without a court order under the Foreign Intelligence Surveillance Act.  It automatically extends enlistments in the armed forces until the end of the war, can make the Coast Guard part of the Navy. It gives the President substantial discretion over the appointment and reappointment of commanders and allows the military priority use of the natural resources on the public lands and the continental shelf.

By contrast, an AUMF does not automatically trigger any of these standby statutory authorities. Some of them can come into effect if a state of war comes into being after authorization for the use of force is enacted. Most special powers, including many of the most sweeping ones, can be activated if the President chooses to issue a proclamation of a national emergency. (See Section Four below.) Authorization for the use of force does not trigger any of these standby authorities, but the Office of the President asserted after the 2004 Hamdi v Rumsfeld case that it should.[13]

C. Increased Treaty-Making Power

Treaty making powers can have significant consequences. Citizens should be vigilant. Treaty-making powers can be used to annex territory, pull nations into wars, or limit the growth of weapons of mass destruction. They can also govern some aspects of domestic law. Their impact on domestic law can be direct when they are considered “self-executing” or indirect when they require enabling legislation.[14]  There is an ongoing debate on how to distinguish self-executing from non-self-executing agreements.

Treaty making power was originally meant to be shared between the Senate and the President. This is rarely the case in practice. Presidents now routinely negotiate treaties without consulting the Senate until they are ready to seek ratification. Presidents also negotiate “executive agreements” with other national governments that are the functional equivalent of international treaties.[15]  Famous examples of executive agreements include the annexation of Texas in 1845 and the World War Two Hull-Lothian agreement that was the model for a larger lend-lease program.

In addition, presidents now have the power to withdraw from many treaties unilaterally. For example, in 1978, President Carter withdrew the U.S. from its 1954 Mutual Defense Treaty with Taiwan — with the goal of improving diplomatic relations with the People’s Republic of China. When Senator Barry Goldwater complained to the Supreme Court, the court declined to rule, asserting the disagreement was a political matter.[16]  Thus, the presidency has seized de facto power to unilaterally withdraw from treaties. The presidency will retain that power if and until the Senate can bring a more compelling case to the courts.  More recently, in the period 2017-2019, President Trump withdrew the U.S. from the Trans-Pacific Partnership, the Paris Climate Accord, and the Intermediate-Range Nuclear Forces Treaty with the Soviet Union (now Russia).

The use of executive agreements increased significantly during World War II and the Cold War.[17] Before 1940, the Senate ratified 800 treaties, and presidents made 1,200 executive agreements. Between 1940 and 1989, presidents signed nearly 800 treaties but negotiated more than 13,000 executive agreements. As of 2000, one source estimated that more than 90 percent of all international legal agreements were executive agreements.[18]

The power to negotiate executive agreements is backed by the U.S. Supreme Court. In United States v. Pink (1942), the Court held that international executive agreements have the same legal status as treaties and do not require Senate approval. In Reid v. Covert (1957), the Court clarified that such agreements could not contradict existing federal law or the Constitution. The Case-Zablocki Act of 1972 requires the President to inform the Senate within 60 days of any executive agreement being made and empowers Congress to vote to cancel an executive agreement or to refuse to fund its implementation. In some cases, treaty provisions and executive agreements may require implementing legislation in order to be judicially enforceable in U.S. courts.

There are three kinds of executive agreements. These are agreements made by Authorization of Congress, by authorization of an international treaty, and by the sole authority of the Executive Office. 

• Congressional-executive agreements need only a majority vote from both houses rather than a two-thirds Senate majority required for international treaties.[19] The first formal congressional-executive agreement was made in 1792 to allow the US Postmaster General ”make arrangements with the Postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post offices.” They now cover a wide variety of agreements governing bilateral trade and military assistance. The North American Free Trade Agreement and the General Agreement on Tariffs and Trade are notable examples of congressional-executive agreements. 
• Treaties previously ratified by the Senate sometimes empower presidents to negotiate various agreements. The United Nations Charter Article 43 is an example. It states that ”All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.” In compliance with this treaty, the United Nations Participation Act of 1945 authorizes the President to negotiate agreements with the U.N. Security Council for Article 43 purposes, subject to its approval.
• The Supreme Court has recognized the power of the President to conclude sole executive agreements in the context of settling claims with foreign nations.[20] If the President enters into an executive agreement addressing an area with clear, exclusive constitutional authority, such as an agreement to recognize a particular foreign government for diplomatic purposes, then the agreement may be legally permissible regardless of congressional disagreement. One of the more famous examples of a sole executive agreement is the 1940 Hull-Lothian Agreement.[21] In exchange for the lease of sites for naval bases, President Roosevelt agreed to provide the British Government with fifty reconditioned naval destroyers. The lend-lease program allowed the President to move against Germany prior to an actual declaration of war, thus also effectively nullifying the Neutrality Acts adopted by Congress to keep the United States out of the war.

Sole executive agreements can be easily reversed or modified by new presidents. Because sole executive agreements are made only on the authority of the incumbent president, they do not necessarily bind his successors. The so-called Joint Comprehensive Plan of Action, an executive agreement with Iran and several European partners is a recent example. It was negotiated by one President and nullified by another.[22]  The outcome would not have been much different if the executive agreement had been a Senate-approved treaty.  As noted above, the President has claimed de facto authority to overturn treaties.

The Constitution and the Supreme Court are silent on the power to withdraw from treaties.[23] In 1789, Congress authorized the termination of four treaties with France. In the 1800s, termination was seen as a joint power, consistent with treaty-making itself. By the 1900s, however, presidents increasingly terminated treaties on their own. The practice has not, thus far, attracted much resistance from Congress and is therefore likely to be continued.

D. Power From (and Over) an Expanded Bureaucracy

Presidents can exert control over Executive Branch departments in a variety of ways, despite conflicts with Congress.[24] The strategic placement of high-level political appointees in each department provides the President with both intelligence and means of control. The 1978 Civil Service Reform Act gives the presidency more control over assignments of senior bureaucrats within the civil service. The president can also control departmental budgets through the Office of Management and Budget: since 1921, all budgetary and legislative proposals have been required to pass through the Bureau of the Budget (now the OMB) before going to Congress.[25] (See Part Four.)

The Office of the President has expanded from a handful of staff to a vast, skilled bureaucracy. The Executive Office of the President was created by Congress in 1939 at the request of President Roosevelt to assist the presidency in coordinating the federal government. Before then, the presidency was a small affair. In 1868, the President had only five staff, excluding five military aides. By 1897, that number had increased to ten.[26] As of 2019, the President is served by at least 19 offices, councils, and boards organized under the Executive Office of the President. Many of these play substantial roles in proposing or even setting policy. Examples include the National Security Council, the Office of Management and Budget, the Office of the U.S. Trade Representative, and the President’s Intelligence Advisory Board.  As of 2019, there were roughly 4,000 employees, most of whom do not require a confirmation from the U.S. Senate.

The president is also served by a personal staff within the White House Office. The White House Office is an entity within the Executive Office of the President of the United States. The White House Office has more than twenty offices. It is headed by the White House chief of staff, who is also the head of the Executive Office of the President.  Many of these offices play important roles. Examples include the Office of the National Security Advisor, the National Economic Council, the Office of Cabinet Affairs, the Office of Communications, the Office of intergovernmental Affairs, the Office of Legislative Affairs, and the Office of White House Counsel.

Almost all of the White House Office staff are political appointees of the President.[27] They are appointed by, and can be removed by, the President. They do not require Senate confirmation for their appointment.

The Executive Office of the President is not the same as the Cabinet. The United States Constitution does not explicitly establish a Cabinet. The Cabinet’s role, inferred from the language of the Opinion Clause (Article II, Section 2, Clause 1) of the Constitution, is to serve as an advisory body to the President of the United States.  Members of the Cabinet (except for the vice president) are appointed by the President, subject to confirmation by the Senate. After confirmation, they serve at the pleasure of the President, who can dismiss them at any time without the approval of the Senate, as affirmed by the Supreme Court in Myers v. United States (1926). The Cabinet today is composed of the vice president and the heads of the federal executive departments such as the Secretary of Defense, the Secretary of State, and the Secretary of Commerce, and the Attorney-General, who heads the Department of Justice.

Successive presidents have tried to increase their degree of control over federal departments in order to advance their policy agendas more easily. The effort started early.  President Thomas Jefferson was alarmed that Federalists dominated the civil service and the army. In 1801, he identified the party affiliation of officeholders and systematically appointed Democratic-Republicans.[28] In 1829, President Andrew Jackson began the systematic rotation of officeholders after four years, replacing them with his partisans. After the 1830s, the “spoils system” (patronage system) evolved into a system characterized by the exchange of money and favors for political offices and the systematic purging of officeholders every time the presidency changed party hands. 

Patronage and purges have downsides. While patronage and purges can be politically advantageous, they may also cause harm if experts have been let go or demoted: wars can be lost, problems can fester without resolution, and public service delivery will be characterized by multiple failures.  The spoils system can also create resentment.  For example, President Garfield was assassinated in 1881 by a man repeatedly denied an appointed office.[29]

Congress imposed a merit-based system on the federal government after the assassination of President Garfield. The 1883 Civil Service Reform Act (called “the Pendleton Act”) gradually moved most federal employees into the merit system.  Today, the vast majority of the 2.0 million civilian federal employees are covered by merit systems.[30]

There were 3,295 political appointee positions available within the federal departments, excluding the White House staff as of 2019.[31] There were 680 slots reserved for political appointees without the need for Senate confirmation in the Senior Executive Service and another 1,403 Schedule C employees who serve in confidential or policy-related roles.  There are also 1,212 political appointee slots that require Senate confirmation. 

When faced with political gridlock, various administrations have adopted tactics to get around the Senate. Several administrations used their interpretation of Article II, Section 2, Clause 3, to make so-called “recess appointments” when the Senate was not in session. This practice ended in 2014 when the Supreme Court ruled it is unconstitutional.[32] The recess appointments tactic has been replaced by the growing use of acting appointments via the Federal Vacancies Reform Act of 1998. Under this law, acting cabinet secretaries and other high officials fall outside of the constitutional requirement for Senate confirmation.  Some constitutional scholars argue that the “senior officer or employee” clause of the Federal Vacancies Reform Act may be unconstitutional when applied to principal officers because the Appointments Clause of the Constitution requires Senate confirmation for these positions.

The power to remove staff is the focus of another conflict between the presidency and Congress. The Constitution is silent on the topic.  One argument is that Congress has the authority to enact laws “necessary and proper” for executing not just its own authorities, but all powers that the Constitution vests in “any department or officer” of “the government of the United States.” Given that the federal departments were created by Congress, the Necessary and Proper Clause implies Congress has a share of the power to direct the officer within them. The opposing argument is that the President has implicit power to remove employees because of the President’s duty to faithfully execute the laws.  An incompetent or malicious employee would put that obligation in jeopardy. In June 2020, the Supreme Court ruled in a way that favors the second argument and seems consistent with the unitary executive theory.

In Seila Law v. Consumer Financial Protection Bureau, the Supreme Court ruled that restrictions on the removal of the director of the Consumer Financial Protection Bureau are unconstitutional. Under the law that created the CFPB, the director can be removed only for “inefficiency, neglect of duty, or malfeasance in office.” The Court has recognized two exceptions to the president’s removal power. First, Congress could create for-cause removal protections for “a multi-member body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.” Second, Congress can create for-cause removal protections for “inferior” officers, who have limited duties and lack policy-making or administrative authority, such as an independent counsel.

Application: Officials and employees in the Executive Branch (other the President and Vice-President) are not directly accountable to the voters because they are not elected.  Is it possible to argue these officials are indirectly accountable to the voters through the President or Congress?

The appointment and removal of Inspectors-General are an important and emerging area of conflict between the presidency and Congress.[33] The tension arises because, by law, Inspectors-General have two bosses.  Statutory Inspectors-General are intended to be independent, nonpartisan officials who aim to prevent and detect waste, fraud, and abuse in the federal government. They are empowered by law to independently hire their own staff and legal counsel, conduct audits and investigations that cannot be prohibited or prevented by the department or agency head, and subpoena information. They have a dual reporting structure, to the head of the department or agency they serve, and to Congress. Most also contribute their annual reports to Oversight.gov for any citizen to see. This dual structure puts them in a position to advise agencies on how to improve and to advise Congress on how to monitor and facilitate such improvement.  Although the office of Inspectors-General is meant to be independent, most Inspectors-General are appointed and removed either by the President or by the President with the advice and consent of the Senate. 

Ambitious presidents may be concerned that some Inspectors-General may not share their political interests. Thus, it is natural that they might take steps to build their own team. To that end, Reagan fired 16 inspector generals when he became president in 1981 and rehired five. In 1989, President Bush moved to dismiss all the inspector generals upon becoming president, but he relented after the inspector generals and Congress objected. President Obama dismissed one Inspectors-General in 2009, citing a lack of confidence in him. Thus far, the Trump administration has let go of five Inspectors-General.

Application: Can an Inspector-General feel truly independent, knowing that he or she could be removed by the President?  Why or why not?

— SUMMARY —

Congratulations!  You have completed Part Three of the series on Trust and the Presidency.

You have learned that the presidency has gained new authorities to initiate war, engage in hostilities short of war, and direct the deployment of military forces for a wide variety of purposes.  Moreover, several of these authorizations are still in effect, despite the end of the originating conflict. On their own initiative, presidents have also directed our military forces to deploy hundreds of times. Congress tried to pull back some de facto presidential war powers with the 1973 War Powers Resolution but may have done the opposite – the White House Office of Legal Counsel now regularly cites passages of the 1973 War Powers Resolution as recognizing a measure of unilateral presidential power.  You also learned that many of the President’s war-making authorities come with additional “standby” authorities that affect domestic policy.  By contrast, an Authorization to Use Military Force does not automatically trigger any of these standby statutory authorities.

You also learned that presidential treaty-making powers can confer the presidency with legislative powers.  Treaty making has become the almost exclusive province of the presidency, and much of this is achieved through executive agreements rather than treaties per se.  Executive agreements give the President extra authority and flexibility, but they are also vulnerable to reversals or modifications by new presidents.  The Constitution and the Supreme Court are silent on the power to withdraw from treaties, but presidents have exercised de facto authority to withdraw from many treaties unilaterally.

Finally, you learned the presidency gained substantial control over the federal bureaucracy. The Office of the President has expanded from a handful of staff in the first administration to a vast, skilled bureaucracy arranged in three concentric rings. The outer ring is the Executive Branch that is composed of all the departments and agencies responsible for executing the laws. Within the Executive Branch is the Office of the President.  Within the Office of the President is the President’s personal White House staff. Successive presidents have gradually increased their control over federal departments and agencies in order to advance their policy agendas more easily.  The early approach, starting in President Jackson’s time, involved patronage and purges. These practices proved to have downsides in terms of lost capacity and, in once case, a presidential assassination by a resentful rejectee. Congress imposed a merit-based system after the assassination. Yet, patronage persists.  As of 2019, there were 3,295 political appointee positions available within the federal departments, excluding the White House staff, who are almost all political appointees.  The Senate still has a hand in reviewing high-level appointees. This can be problematic when Congress is gridlocked or when some senators want to challenge presidential nominations or removal decisions. Some presidents have maneuvered around this problem through recess appointments. When that tactic was ruled unconstitutional, some presidents began to hire more officers in acting positions that do not require Senate approval.

Part Four of this course will review the emergence of powers delegated to the presidency by Congress. Once again, the issue is whether the presidency can be trusted with enough power to deal with the problems of the day without becoming powerful enough to tyrannize the people.

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© Center for Free, Fair, and Accountable Democracy
July 2020

This booklet is to be used only for civic education.
It may be copied and distributed only for non-profit, non-partisan, educational purposes and only with proper credit to the
Center for Free, Fair, and Accountable Democracy.
Written by Douglas Addison for the
Center for Free, Fair, and Accountable Democracy.

Principle Reviewers:
Jay Barth,
M.E. and Ima Graves Peace Distinguished Professor of Politics, Emeritus; Hendrix College

Matthew Crenson
Professor Emeritus and Academy Professor,
John Hopkins University

Benjamin Ginsberg,
David Bernstein Professor of Political Science,
Johns Hopkins University

Internal Reviewers:
Mark Nelson, Director
Eric Palladini, Director
Grayson Lewis, Advisory Board
Mark Molli, Advisory Board

CFFAD is a non-profit organization providing non-partisan civic education.

Cover photo: whitehouse.gov

End Notes

[1] See for example Calabrisi and Prakash (1994). The President’s Power to Execute the Laws; and Lessig and Sunstein (1994). The President and the Administration.

[2] National Constitution Center. Prakash and Schroeder. The Vesting Clause.  https://constitutioncenter.org/ interactive-constitution/interpretation/article-ii/clauses/347

[3] Ibid.

[4] See Congressional Research Service (2020). Defense Primer: Legal Authorities for the Use of Military Forces.

[5] The five countries include Great Britain, 1812-15, Mexico, 1846-48 and 1918, Germany, 1916-18 and 1939-45, Italy, 1941-45, and Japan, 1941-45. The four groups include the Villistas, 1916, the Escobars, 1929, Al-Qaeda, 1993 and 2001, and the so-called Islamic State, 2015 and 2016.  See https://en.wikipedia.org/wiki/List_of_attacks_on_ U.S._territory

[6] Congressional Research Service (2020). A handful of these authorizations were for domestic deployments under the 1807 Insurrection Act.

[7] See details of key authorizations in Congressional Research Service (2014). Declarations of War and

Authorizations for the Use of Military Force: Historical Background and Legal Implications.

[8] Smithsonian Magazine, 2019. https://www.smithsonianmag.com/history/map-shows-places-world-where-us-military-operates-180970997/

[9] See https://www.history.com/this-day-in-history/us-congress-declares-war-on-mexico

[10] See https://en.wikipedia.org/wiki/Korean_War

[11] See https://www.history.com/topics/vietnam-war/vietnam-war-timeline

[12] Congressional Research Service, 2014, pp. 23-25.

[13] Congressional Research Service, 2014, pp. 25.

[14] See Congressional Research Service (2010). International Law and Agreements: Their Effect Upon U.S. Law, p. 6.

[15] Crenson & Ginsberg (2008) p. 195.

[16] See https://www.oyez.org/cases/1979/79-856

[17] See https://www.britannica.com/topic/executive-agreement

[18] Bradley and Goldsmith (2000), Treaties, Human Rights, and Conditional Consent.

[19] Congressional Research Service (2018). International Law and Agreements: Their Effect Upon U.S. Law. pp. 6-7.

[20] Congressional Research Service (2018), pp. 7-8.

[21] See “International Agreements Without Senate Approval” https://constitution.findlaw.com/article2/ annotation12.html#t433

[22] See https://www.whitehouse.gov/briefings-statements/statement-president-reimposition-united-states-sanctions-respect-iran/

[23] Congressional Research Service (2018), pp. 25-26.

[24] Crenson & Ginsberg (2008). pp. 207-208.

[25] Crenson & Ginsberg (2008). pp. 181-182.

[26] Crenson & Ginsberg (2008), p. 180.

[27] See https://en.wikipedia.org/wiki/White_House_Office

[28] https://en.wikipedia.org/wiki/Civil_service_reform_in_the_United_States#The_Pendleton_Act

[29] See https://www.history.com/news/the-assassination-of-president-james-a-garfield

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[30] It may be interesting to follow the case of Administrative Law Judges, quasi-judicial authorities located mainly in the Social Security Administration but also in other departments and agencies. Until 2018, they had been the only judges selected by merit testing by the Office of Budget and Management. An executive order in July, 2018 moves them into a special category not subject to merit testing. See https://ballotpedia.org/Administrative_law_judge

[31] See https://en.wikipedia.org/wiki/Political_appointments_in_the_United_States

[32] National Labor Relations Board v. Noel Canning, 573 U.S. 513 (2014).

[33] Congressional Research Service (2019). Statutory Inspectors General in the Federal Government: A Primer.