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.