By Daniela Belinschi
The United States operates under a presidential system. As both, the head of state and government, the president wields significant and far-reaching powers, with the authority to shape the state's legal framework. These constitutional prerogatives gain even greater significance when candidates advocate values that, once implemented, have a meaningful impact on society and its functioning.
What It Means to Wield Presidential Power in the United States
Article II of the US Constitution, particularly sections 1 and 2, provides the foundation for what the President of the United States (POTUS) can and cannot decide. The list is quite comprehensive, merging from the Power of appointment to the Veto Power. While some prerogatives are limited by Congress to a certain degree, others are within his/her purview.
Section 2, Clause 1 of the Constitution elaborates on the exclusive presidential powers: s/he is the Commander in Chief of the armed forces, has the power to require written opinions from the heads of executive departments, and holds the pardon power. Clause 2 points out the powers shared with Congress. Along with treaty-making power, of considerable importance is the appointment of the Supreme Court Judges, which should be performed “by and with the Advice and Consent of the Senate”.
Presidential nominees for the Supreme Court are often partisans of the president’s political views, therefore making the appointment highly politicised. Since the U.S. Senate composition changes every two years, the balance of power between Republicans and Democrats can shift quickly. This means it's quite likely that a politically biased Supreme Court nominee could get confirmed. The reason is that even a slight change in the Senate's composition can significantly impact the confirmation process, allowing the party in control to push through judicial appointments. A well-known example is the appointment and subsequent confirmation of Brett Kavanaugh, by 50 votes to 48. Notably, Supreme Court judges, by virtue of the Constitution’s third article, hold their offices under life tenure.
The president's nomination power has to do directly with the law and its impact on citizens. The US is a common law country, which means that the body of law is based upon judicial decisions. In other words, Supreme Court rulings carry the weight of law and have significant authority.
Landmark Cases Proving the Alignment
Two recent decisions of the Supreme Court are of particular importance. These concern abortion, and voting rights for minorities.
The Supreme Court decision in Dobbs v. Jackson Women’s Health Organization (2022) is a central topic in the ongoing presidential debate. What is to be noted from this case is that the Supreme Court overruled the Casey and Roe famous precedents granting women the right to abortion. The Court stated that the Constitution cannot be interpreted as comprising the right to abortion and left the discretion of whether to permit or prohibit abortion to the State’s legislators. Following this decision, several states introduced regulations prohibiting abortion.
Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, the judges whose nominations significantly influenced the outcome, were appointed by President Trump and had established reputations for their anti-abortion positions. This is while the former president, himself, emphasised the overturning Roe v. Wade as his accomplishment. This case illustrates how a president can leverage the values he champions to significantly reshape the legal framework of the state.
The Brnovich v. Democratic National Committee (2021) case concerns voting rights established by the Voting Rights Act of 1965. The act is particularly significant in the area of protecting voter rights for minorities by preventing state and local governments from racial discrimination in their election laws.
In this case, the Supreme Court upheld Arizona's voting laws, which disqualified ballots cast outside a voter’s precinct and restricted ballot collection. The Court concluded that these laws did not violate Section 2 of the Voting Rights Act, which prohibits voting practices that discriminate based on race, colour, or membership in a language minority group. However, scholars believe that the Court’s arguments are unfounded and serve to suppress voter turnout among minority and low-income populations. The case’s spark concerns several Republican-led states, encouraged by former President Donald Trump’s claims of widespread voter fraud following the 2020 elections. Interestingly, the ruling comes in the context of the same Supreme Court composition as in the judgement overriding Roe v Wade, with six of the nine judges appointed by Republican presidents.
What Lies Ahead: Expected Legal Developments After 2024
On the 5th of November, besides the President, voters will also be choosing new members of Congress (435 seats for the House of Representatives and 34 seats for the Senate). Therefore, the stakes are at an all-time high. Depending on the election's outcome, we may see either a consolidation of the current judicial trends, which in turn, means further restrictions on abortion (with more states adopting anti-abortion legislation) and voting rights, or, alternatively, a legislative pushback that seeks to safeguard or restore protections dismantled in these recent cases.
Sources: BBC, Britannica, CNN, Congressional Research Service, Harvard Law School, New York Times, Politico, US Constitution, US Senate, US Supreme Court
Written by Daniela Belinschi , November 2024.
Edited by Imke Mentink
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