All four AP Gov FRQ types on Unit 2 content — write your response, then reveal the model answer and scoring breakdown.
"Executive orders are an informal presidential power because they are not explicitly listed in Article II of the Constitution — they derive from the president's broadly worded executive power and from authority delegated by Congress, rather than from a specific constitutional provision. In this scenario, the Biden administration used an executive order to direct OSHA to implement a vaccine mandate without obtaining new legislation from Congress, illustrating how presidents use executive orders to advance policy agendas when the legislative process is slow or unavailable."
"The Supreme Court exercised its power of judicial review to check executive branch authority — ruling that OSHA's vaccine mandate exceeded the statutory authority Congress had delegated to the agency, and blocking its enforcement. This check works by limiting the executive branch to acting only within the bounds of what Congress has actually authorized: because Congress had not clearly granted OSHA such broad power over general public health, the executive branch's attempt to implement the mandate through the agency was unconstitutional in scope."
"The scenario illustrates that the president cannot unilaterally make major policy when Congress has not clearly authorized it — the executive branch is limited to implementing policies within the statutory authority Congress grants. Because Congress did not legislate a COVID-19 vaccination mandate, the president attempted to achieve the same goal through executive action directing a regulatory agency, but courts ruled this exceeded what Congress had delegated. This dynamic shows that separation of powers constrains the president's policymaking capacity: the executive can shape policy direction through orders and bureaucratic direction, but cannot substitute executive action for legislation on questions of major national significance."
| Congress / Years | Bills Signed into Law | Unified / Divided Government | Party Control (President) |
|---|---|---|---|
| 89th Congress (1965–66) | 810 | Unified | Democrat |
| 93rd Congress (1973–74) | 649 | Divided | Republican |
| 103rd Congress (1993–94) | 465 | Unified | Democrat |
| 104th Congress (1995–96) | 333 | Divided | Democrat |
| 112th Congress (2011–12) | 284 | Divided | Democrat |
| 117th Congress (2021–22) | 365 | Unified (initially) | Democrat |
"The overall trend is a significant decline in legislative productivity from the 89th Congress to the 112th — falling from 810 bills signed into law in 1965–66 to just 284 bills in 2011–12, a decrease of 526 bills (approximately 65%)."
"The data suggests a general negative relationship between divided government and legislative output: the three divided government sessions in the data (93rd: 649, 104th: 333, 112th: 284) each produced fewer laws than the unified government sessions that bracket them (89th: 810, 103rd: 465). However, the relationship is not absolute — the 93rd Congress (divided) still passed 649 bills, more than the later unified 103rd Congress (465), suggesting factors beyond partisan control also affect productivity."
"The data suggest that congressional legislative productivity has declined substantially over the past 60 years, with the most recent Congresses passing far fewer bills than mid-20th century Congresses regardless of whether government is unified or divided. This decline is consistent with increased partisan polarization — as both parties move to ideological extremes, cross-party compromise becomes harder, reducing the legislation that can clear both chambers and earn a presidential signature even in unified government periods (compare 103rd unified: 465 to 89th unified: 810)."
"One limitation is that bill count does not measure legislative significance — Congress in the 1960s passed many narrow, local, or administrative bills (post office renaming, small veterans' benefits) that inflated the raw count, while modern Congresses pass fewer but sometimes far larger and more consequential bills (the Affordable Care Act, the American Rescue Plan). A Congress that passes 300 transformative bills might be far more effective than one passing 800 minor adjustments, making raw bill count a poor proxy for actual legislative impact on national policy."
In INS v. Chadha (1983), the Supreme Court struck down the "legislative veto" — a mechanism by which one or both houses of Congress could, by resolution, overturn a decision made by a federal executive agency without presenting that resolution to the president for signature or veto. Congress had used legislative vetoes extensively since the 1930s as a way to delegate broad authority to agencies while retaining quick oversight. Chief Justice Burger, writing for the majority, held that the legislative veto violated the Constitution's bicameralism and Presentment Clause requirements: any congressional action with the force of law must pass both chambers and be presented to the president. Allowing one chamber to override agency decisions without presidential involvement violated separation of powers.
"The constitutional provisions at issue were bicameralism (all legislation must pass both the House and Senate) and the Presentment Clause (legislation must be presented to the president for signature or veto). The Court held that the legislative veto was unconstitutional because it allowed Congress to exercise legislative power — overturning legally binding agency decisions — without following these constitutional requirements. Any action that has the legal effect of making, suspending, or repealing a rule binding on others must go through the full constitutional process of bicameral passage and presidential presentment."
"Chadha enforces the core separation of powers principle Madison articulates in Federalist No. 51: that each branch must be confined to its own constitutional role, and that 'ambition must be made to counteract ambition'. Madison's structural argument is that the Constitution's carefully designed procedures — bicameral legislation, presidential presentment — exist precisely to prevent any branch from accumulating power beyond its defined sphere. The legislative veto allowed Congress to exercise power (overturning agency rules) outside the constitutional framework, bypassing the executive's presentment role. Chadha restores the structural balance Madison described by requiring Congress to act through constitutionally prescribed channels rather than informal shortcuts."
"Both cases involved the Court using judicial review to define constitutional limits, but on different branches and issues. In Baker v. Carr (1962), the Court held that legislative apportionment was a justiciable question — federal courts have jurisdiction to hear challenges to how states draw legislative districts — opening the door to enforcement of equal representation standards. In Chadha (1983), the Court used judicial review to limit Congress's use of extra-constitutional procedures by striking down the legislative veto as incompatible with bicameralism and presentment requirements. Baker expanded the Court's reach into legislative procedure; Chadha enforced structural limits on how Congress could exercise oversight. Both demonstrate that the Court will use judicial review to police the separation of powers even on politically sensitive questions."
"One constitutional response is for Congress to use its power of the purse more aggressively to discipline agencies: rather than unilaterally vetoing agency decisions by resolution, Congress can withhold or reduce funding for agencies that pursue policies Congress opposes, force policy changes through annual appropriations conditions, or require agencies to seek pre-approval for major rules through the appropriations process. This approach achieves similar oversight goals — holding agencies accountable to congressional priorities — through the constitutionally valid mechanism of the budget process, which requires both chambers to agree and the president to sign, satisfying the bicameralism and presentment requirements Chadha enforced."
Thesis (1 pt): "The growth of informal presidential powers has expanded the presidency beyond Article II's narrow enumeration of executive authority, but this expansion does not inherently undermine separation of powers — because it has been checked at critical moments by the judiciary and Congress, and because Hamilton's vision in Federalist No. 70 anticipated and endorsed a robust, energetic executive capable of acting decisively in governance."
Evidence 1 — Foundational Document (1 pt): "Hamilton's argument in Federalist No. 70 provides important context for evaluating presidential power expansion. Hamilton argued that 'energy in the executive is a leading character in the definition of good government' — calling for a single, strong executive who can act decisively, maintain continuity, and be held accountable. This vision explicitly anticipates an executive who does more than passively execute laws: the president must exercise initiative, lead foreign policy, and maintain national security. From this perspective, the growth of executive orders, executive agreements, and the bully pulpit represents not a distortion of Article II but the natural development of the energetic executive Hamilton described — a president who fills the constitutional space with practical governance tools rather than waiting for Congress to legislate every policy detail."
Evidence 2 — Required Court Case (1 pt): "The required case Marbury v. Madison (1803) established both the power of judicial review and the principle that no branch — including the executive — operates beyond constitutional limits. When Chief Justice Marshall declared that 'it is emphatically the province and duty of the judicial department to say what the law is,' he was establishing that courts would police the boundaries of all branches' authority. The judiciary has used this power to constrain executive overreach: in INS v. Chadha (1983) and NFIB v. OSHA (2022), courts blocked executive actions that exceeded statutory or constitutional authority. These checks demonstrate that informal executive power expansion has not actually destroyed the separation of powers — because judicial review remains available to correct excess when presidents overstep their constitutional authority."
Counterargument + Rebuttal (1 pt): "Critics argue that informal presidential power has grown so substantially that Congress can no longer effectively check the executive — presidents use executive orders and executive agreements to circumvent the Senate's treaty ratification role, bypass Congress's appropriations power, and govern through bureaucratic direction rather than legislation. This concern has merit: presidents from FDR to Obama to Trump have used executive orders to accomplish major policy goals Congress would not enact. However, this expansion is not irreversible or unchecked — Congress can and has overridden executive orders through legislation, the Senate can and does withhold appropriations to pressure presidential behavior, and courts have struck down executive overreach. The 22nd Amendment's term limits and the constant possibility of a veto override remind presidents that informal power requires political legitimacy to be sustained."
Conclusion: "The expansion of informal presidential powers reflects both the growing complexity of national governance and the enduring logic of Federalist No. 70's case for an energetic executive. Checks and balances — through courts, Congress, and constitutional constraints like term limits — ensure that this expansion, while real and significant, has not destroyed the separation of powers the Founders designed."