The Presidency & the Judiciary
- Distinguish the formal and informal powers of the presidency
- Explain the energy-in-the-executive argument of Federalist No. 70 and judicial independence in Federalist No. 78
- Explain how Marbury v. Madison established judicial review and shaped the courts
Formal and informal presidential power
The president’s formal (constitutional) powers include serving as commander in chief, vetoing legislation, making appointments and treaties (with Senate involvement), and granting pardons. But modern presidents also wield informal powers not spelled out in the Constitution: the executive order (a directive with the force of law that directs the bureaucracy), the executive agreement (a pact with a foreign leader that avoids Senate ratification), signing statements, and the bully pulpit — using national visibility to shape public opinion and pressure Congress. The State of the Union lets the president set an agenda before the nation.
Federalist 70 and 78: energy and independence
Two required documents defend the design of these branches. Federalist No. 70 argues for a single, energetic executive — "energy in the executive" — because one person can act with the decision, activity, secrecy, and dispatch that a plural executive or committee cannot, and a single officer is easier to hold accountable. Federalist No. 78 defends an independent judiciary: judges serve during good behavior (life tenure) so they can decide cases free of political pressure. Hamilton calls the judiciary the "least dangerous branch" because it controls neither the sword (executive force) nor the purse (legislative money) — only judgment — and he defends judicial review as the courts’ duty to void laws that violate the Constitution.
Marbury v. Madison: the power of judicial review
In Marbury v. Madison (1803), Chief Justice John Marshall established judicial review — the power of courts to strike down laws and executive actions that conflict with the Constitution. Ironically, the Court did so by declaring that a portion of the Judiciary Act of 1789 was itself unconstitutional, refusing to exercise a power Congress had tried to give it. The ruling made the judiciary a co-equal branch and the ultimate interpreter of the Constitution, transforming Hamilton’s Federalist 78 theory into a concrete, enduring check on the other branches.
A president cannot get an immigration bill through a divided Congress, so instead issues an executive order changing how the immigration agencies enforce existing law. Explain the type of power used, its limits, and how another branch might check it.
- 1.Classify the action: an executive order is an informal power — a directive to the executive branch that carries the force of law but is not an act of Congress.
- 2.State its scope: it can direct how existing law is enforced and manage the bureaucracy, but it cannot create wholly new statutory law or spend unappropriated money.
- 3.Identify the checks: courts can strike down an order that exceeds the president’s authority or conflicts with a statute (judicial review from Marbury), and Congress can pass a law overriding it or refuse to fund it.
- 4.Note fragility: because it is not a statute, the next president can rescind the order with the stroke of a pen.
Which of the following is an example of an informal presidential power rather than a formal constitutional power?
Link the documents to the cases: Federalist 78 theorizes judicial review and the "least dangerous branch," and Marbury v. Madison makes it real. If a prompt asks how the judiciary became co-equal despite lacking sword or purse, cite both together.
Federalist No. 70 argues for a single executive rather than a plural one primarily because a single executive:
An executive agreement is not a treaty. A treaty requires two-thirds Senate ratification; an executive agreement with a foreign leader does not, but it is also less durable — a later president can undo it. Watch for prompts that test this distinction.
Answer the 2 checkpoints as you read.
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