Expansion of presidential power | American civics | US government and civics | Khan Academy
So I'm here with Jeffrey Rosen, the head of the National Constitution Center in Philadelphia, and what I want to talk about in this video, Jeffrey, is how has the powers of the president changed over time since the ratification of the Constitution?
Well, they've hugely expanded, and it's so striking that the framers of the Constitution were concerned that Congress would be the most dangerous branch. They were so concerned about that that they split Congress in two and created this bimal legislature, the House and Senate, in order to divide its power. They would have been stunned to learn that the president is twice as powerful as Congress today. They created the unitary executive because they were less concerned about executive than Congressional tyranny. It’s really interesting to think about why that happened.
What do you mean by the president today is twice as powerful as Congress?
Well, I guess that was a hypothesis, but it's arguable that having assumed powers to deploy troops without Congressional authorization, to target and kill American citizens abroad, to engage in executive orders without Congressional approval—critics of the expansion of presidential power say that the president has usurped Congressional authority. He's exceeded his power under the Take Care Clause of Article 2, Section 3 of the Constitution, and that in this way presidential authority has hugely expanded while Congressional authority has contracted.
I see. And what are the dynamics that allow this to happen over the last several hundred years?
Well, there's a wonderful essay on the National Constitution Center's interactive Constitution by William Marshall, and you can find it if you click on Article 2, Section 3. William Marshall is trying to figure out what some of these dynamics were, and he comes up with a bunch of reasons why the president has been so dominant. First, he says political culture— the president has become the focus of national power and culture in a way that he wasn't in a pre-internet, pre-television, pre-radio age. This was the case even during World War II when Justice Jackson, in the Steel Seizure case that we talked about before, talked about executive power having the advantage of concentration in a single head in whose choice a whole nation has a part, making him the focus of public hopes and expectations.
But there's no question that the focus on the individual person of the presidency has vastly expanded. It's just this idea that there's one person there—people associate that person as their head of state. They put their hopes and fears on that person, and that just gives them inherently more power.
It does. And you know, you can call it culture, you can call it celebrity, but it's so striking that the framers were so concerned that the president not be a king. They rejected Alexander Hamilton's suggestion, which again we know from the musical, that the president be elected for life. They wanted to have four-year terms, and then subsequently a constitutional amendment has passed, the 22nd Amendment, to limit the president to only two terms. Despite all that, the presidency has expanded so much.
It's not only the political culture—Marshall points to a bunch of other reasons. Executive branch precedents—basically every president has been successful in asserting increasingly sweeping exercises of executive power. This is a bipartisan phenomenon from President Clinton to George W. Bush to President Obama. The Office of Legal Counsel in the Justice Department has authorized increasingly sweeping exercises of executive authority, and we find presidents of both parties either criticized or praised for having established these executive branch precedents.
And just to make sure I understand—it's just this idea that even if you were just president, I come into office and I might even be more restrained, but then the next guy or gal that comes in can cite your presidency and say, "Hey, he did it, why shouldn't I be able to do it?" So there's this—it’s never going to go back. A president will never take powers away; they'll only add to them.
That's exactly right. And this really important but not so well-known office, the Office of Legal Counsel, which several Supreme Court justices have been the head of, is basically a mini Supreme Court for the executive branch, and it issues opinions about what the president can do. Those opinions are relied on by subsequent presidents to justify the expansion of executive power.
Fascinating! You know, not all presidents have taken this view. I’m writing a book now about William Howard Taft, who was the only president who went on to become chief justice, and he thought he had a very literalist or judicial conception of the presidency. He thought the president could only do what the Constitution explicitly authorized, and he refused to take actions that he thought weren't authorized by the Constitution. In this sense, he gives us a vision of what a more constitutionally constrained presidency would look like. But even though he did that, as we were just talking about, people who came after Taft could just cite people before Taft and say, "Absolutely right." Taft's predecessor, Theodore Roosevelt, had the most sweeping conception of the presidency. He said the president can do whatever the Constitution doesn’t explicitly forbid, and his stewardship conception of the presidency definitely has been vindicated by time. You'd have to say presidents today are much more Rooseveltian than they are the heirs of William Taft.
Yeah, so what other dynamics are at play? We talk about political culture, that celebrity into one person, this precedent that keeps expanding powers—what else?
Well, there's the huge expansion of the federal government and the administrative state and the growth of executive agencies in the post-New Deal period, from the Environmental Protection Agency to even Progressive Era agencies like the Federal Trade Commission or the Federal Reserve. Workplace safety, National Park management, smokestack emissions, college sports—there’s almost no area of American life that these executive agencies don't regulate.
The president, by appointing the heads of these agencies and having the ability to fire them, can issue executive orders that have the force of law, even though they're not passed by Congress. That can lead to really dramatic clashes between the president's use of executive orders and what Congress says it actually intended, as we've seen during the Obama Administration. So that's a big factor as well.
Yeah, and what other dynamics are there?
Well, the modern world is moving a lot faster in an age of the internet and instant communication. There are a lot more emergencies; attacks are much more sudden than they were at the time of the framing and have to be repelled more quickly. So just the speed of contemporary life has led to the president asserting new emergency powers.
And then finally, and I’m just tracking William Marshall's great essay here, there's the rise of partisan politics because Congress has become so polarized. Often, people in Congress see their responsibility to support their party rather than to take seriously their constitutional or institutional duties as legislators. So they may be unwilling to check the president's power when their party is in the majority. They're just willing to write the president a blank check when he happens to be a member of their party.
I can see that when it's the same party in charge of Congress and the presidency, but what about when it's the other way around? Obviously, in recent times, it seems like Congress is being very effective at limiting presidential power.
Well, because of partisanship, you do have either Congressional inaction or refusal to act on presidential proposals. But often critics of congressional inaction complain that Congress is refusing to veto bills, for example—sorry, to override presidential vetoes or to refuse to pass laws on constitutional grounds. Instead, they’re filing lawsuits, they're kicking things up to the court. When President Obama issued his executive orders about immigration, there was a lawsuit filed. So, increasingly, the judiciary is becoming the arbiter about disputes between Congress and the president.
The framers expected a much more direct clash between the president and Congress and thought that both of those branches of government would make decisions on constitutional grounds and would directly check each other. It’s this idea that instead of Congress passing legislation and then the president either signing them or vetoing them, that when you have this gridlock, the president starts taking more executive orders, and then Congress takes the president to court over that.
That’s very well stated, and that’s definitely not what the framers intended. And so this is really fascinating— I mean, just to go over them once again when you just have one person in charge, and this starts with Washington, who was this huge personality, obviously an American hero. So that by itself put a lot of power in the president.
Then every president comes along and maybe does a little bit more than the ones that came before it, and anyone can cite that president as, "Hey, he pulled it off, why can't I?" As you mentioned, the federal government is far, far larger than it was in the time when the Constitution was written, in the time of Washington. And just the speed with which things are happening, it's necessary for a president, whether it’s in war or regulation or other things, to just be able to take action quickly.
And then finally, partisan politics— I guess that one could seem like it could be debated either way depending on which parties are in power. But it is fascinating, it does seem like this has been a very clear trend over time.
It's true; those are all great reasons offered by William Marshall in his interactive Constitution essay. There’s one other factor, and that is the fact that both branches, the president and Congress, are not evaluating their actions on constitutional grounds the way they used to. The president has the veto power under Article 1, Section 7, and at the time of the framing, the presidents often issued vetoes on constitutional grounds.
President Andrew Jackson, who vetoed the rechartering of the Second Bank of the United States, vetoed it on the grounds that he could veto any bill that he considered unconstitutional. He sided with Thomas Jefferson's view that the bank was unconstitutional, rejecting the view of Hamilton and George Washington that it was okay. But nowadays, presidents tend not to issue vetoes on constitutional grounds, and Congress tends not to debate bills in constitutional terms.
As a result, critics on both sides of the aisle say both branches are exceeding their constitutional powers and failing adequately to check the constitutional excesses of the other branch.
It's fascinating—something I never fully appreciated, that what you mentioned historically—Washington and Adams and Jefferson, they viewed their veto as kind of like a light Supreme Court—a little bit like, "Is this constitutional or not?" and that's why I'll veto it. But then later, presidents started to say, "No, if I just disagree with it, I just think it's a bad law, I will veto."
Absolutely! And this idea that the Supreme Court is the sole authority arbiter of the constitutionality of laws would have surprised the framers. They had a theory of departmentalism; they thought that all three branches had an obligation to evaluate the constitutionality of laws—the Congress when they passed the bill, the president when he signed it, and the courts when they reviewed it. Only when all three branches agreed could a law go into effect. But now, we tend to punt all constitutional questions to the Supreme Court, and that has left something of a vacuum on the side of the president and Congress.
Well, thanks so much for this, Jeff.
Thank you.