Richard M. Nixon - Prerogatives and power

Having won a deviating election without the support of an electoral
majority and confronted with a Congress controlled by the opposition
party, Nixon could not rely on either party leadership or public consensus
and support to control domestic and foreign policymaking. He was fairly
popular, by historical standards, during his first term and had a surge of
popularity in the last year, based on the improved performance of the
economy, the reduced role of American forces in Vietnam, the China summit,
and the Moscow summit. Even so, his reelection produced a dramatic
personal victory in the context of a failure to make gains against the
Democratic party in Congress and the states. Nixon's personal
political successes, therefore, would not, and probably could not, be
translated into domination of Congress. He would have to control the reins
of government almost solely by using his constitutional prerogatives and
his own often peculiar interpretation of his responsibilities under the
laws of the land.

At times Nixon simply ignored laws. The Federal Comparability Act, for
example, required the president to submit a plan for a pay increase for
government employees. Nixon refused to submit a plan to Congress during
his wage freeze, an act ruled illegal by a federal court of appeals in
National Treasury Employees Union
v.
Nixon
(1974). A law passed in 1972 required the administration to submit the
texts of executive agreements negotiated with foreign governments to
Congress within sixty days. The law was sometimes circumvented by
negotiating at a lower diplomatic level and calling the results
"arrangements." Sometimes agreements would be submitted well
after the sixty-day deadline. By law, domestic wiretapping requires a
judicial warrant, a procedure explicitly upheld by the Supreme Court in
United States
v.
United States District Court
in 1972. The Nixon administration violated the law, which led to federal
court decisions that Nixon and other officials were liable for damages in
the illegal wiretapping of a National Security Council staff member, in
Halperin
v.
Kissinger
(1976).

Nixon tried to control the bureaucracy with several unconstitutional or
illegal ploys. He appointed Howard Phillips as acting director of the OEO,
bypassing Senate confirmation, later ruled illegal in
Williams
v.
Phillips
(1973). Phillips issued orders to dismantle the entire agency, based on
Nixon's budget requests for the next fiscal year, which provided no
funds for OEO. The orders disregarded legislation providing for the
continuation of OEO and assumed that a presidential budget request to
Congress should take precedence over laws and appropriations. A federal
district court ruled these orders illegal in
Local 2677, American Federation of Government Employees
v.
Phillips
(1973).

The Nixon administration impounded funds appropriated for various agencies
by Congress, either by delaying outlays or else by rescinding an
agency's authority entirely. This power was used as a form of
"item veto" to eliminate programs. By 1973, impoundments
totaled $18 billion and were justified by Nixon as part of his program of
economic stabilization. The problem for the administration was that it did
not have any legal authority to make such drastic impoundments. Eventually
most of them were ruled illegal by federal district courts and by the
Supreme Court in
Train
v.
New York
(1974).

Nixon also refused to fill some offices provided for by law. He sent no
nominations to the Senate for the National Advisory Council on Indian
Education or for deputy commissioner of Indian education, in an attempt to
destroy a program legislated by Congress. Eventually a federal court
ordered him to fill the positions and implement the program.

Like other presidents facing hostile congressional majorities, Nixon made
free use of the veto threat to force compromises on pending bills. As a
result, he was only a little less successful in dealing with Congress, as
measured by legislative support for his own initiatives or passage of
measures favored by the White House, than were his immediate predecessors.
Nixon submitted fewer measures than Kennedy or Johnson, and his successes
are best measured not by passage of what he proposed but rather by his
ability to block or modify initiatives he opposed. Nixon vetoed
twenty-four measures and was overridden only five times, employing these
powers more often, but with less success, than his Democratic
predecessors.

Nixon also made greater use of the pocket veto. This allows a president to
kill a bill sent to him by Congress within ten days of its adjournment, by
refusing to sign it or return it. Unlike a regular veto, a pocket veto is
final; the bill is not returned to Congress and cannot be passed into law
by a two-thirds vote of each chamber. Nixon used the pocket veto sixteen
times. He used it during routine short adjournments of Congress when it
went on vacation, rather than at the end of a session, as originally
intended by the Constitution. His veto of the family practice of medicine
bill during a short Christmas break led to a district court decision that
overturned the misuse of the pocket veto in
Kennedy
v.
Sampson
(1973). Subsequent presidents have agreed that the pocket veto will be
used only at the end of the second session of Congress, though President
George Bush briefly revived Nixon's expansive approach.