The Power of the President
The current President of the United States is claiming more and more “executive” power. He bragged last week, that he hadn’t even used his “Article II” authorities yet. He is backed up by an Attorney General who has an extremist legal view of the Constitution, one that says there is little to no check on the actions by our Chief Executive.
Using “executive” power, those powers delineated in Article II of the US Constitution, is nothing new to the Presidency. The Founding Fathers understood both an executive too strong, and too weak. The basis of the American Revolution was what the colonists consider an overreach of executive power by the King George III of England. In the listing of complaints in the Declaration of Independence, the part we don’t quote quite as often as the “…all men are created equal” part, Jefferson is very specific.
“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”
Jefferson then follows with thirteen separate complaints, all preceded by the word, “He,” referring to the King.
So anti-executive power was one of the foundations of the United Colonies becoming States. But too little executive power was a flaw the Founding Fathers experienced as well. The Continental Congress, later codified in the Articles of Confederation, the first organizing document of the United States, specifically provided for there NOT to be a “chief executive.” Executive decisions were made by committee, each state having a single vote. It took nine votes of the thirteen to agree.
The Articles of Confederation, a weak federal government by committee, didn’t work effectively. The leaders of the United States gathered together in Philadelphia five years after its ratification, to try again. With both examples clearly in front of them: too much executive power, and too little; they wrote the Constitution of the United States.
Specifically, they placed the following powers in the Presidency:
- Commander in Chief of the US military
- Can require the opinions of the leaders of the executive departments about any subject relating to their duties
- May grant reprieves and pardons for offense against the United States
- Make treaties (with advice and consent of the Senate)
- Nominate officers and judges (with advice and consent of the Senate)
- Fill vacancies when the Senate is not in session
- Convene both or either House of Congress on extraordinary occasions
- Faithfully execute the laws.
Those are the actual “Article II” powers that President Trump is warning us about. The Founding Fathers wrote a document that carefully circumscribed Executive authority. The vast majority of the “powers” of the Government are granted to the Congress.
But like the Articles of Confederation government, Congress found the need to reach a majority in the House of Representatives (218 out of 435 votes today) and either a majority or two-thirds majority in the Senate (51 or 67 out of 100) so cumbersome, that they had difficulty governing. They have, over the years, ceded authorities to the Executive Branch in order to get things done.
So when President Trump threatens to raise tariffs on Mexico, Congress has given him that authority. When he threatens to send troops to the Middle East, Congress has given him that power. When he decides to take money from funds already earmarked for certain projects, and declare an “emergency” and try to spend the money on a border wall, Congress has given him that power as well.
All of those powers were given in order to make the government function more efficiently. And all of those powers were also given with an “unwritten understanding” of the norms and limits of Presidential actions, “norms and limits” that no longer are accepted by the President, or expected by the American people.
George Washington well understood a limited President. The one Chief Executive who could have claimed kingship (he was offered the title by his officers in the last days of the Continental Army) he acted carefully to establish the power of the Presidency, and restrict that power as well. His most famous example: walking away from the Presidency after his second term.
Lincoln had the view that he needed to exercise whatever power was necessary to maintain the Union. He took his power as Commander and Chief and prosecuted the Civil War. The resurgence of a powerful Congress after the Civil War was a direct reaction to Lincoln’s expansion, even while Lincoln himself became an American deity.
Franklin Roosevelt took much the same view, that existential crisis gave the President almost existential power. The Great Depression threatened the core structure of America, and World War II threatened the core structure of the world. Roosevelt not only expanded executive power, but violated Washington’s norm of leaving after two terms. While American’s placed FDR in high esteem after his death, the Congress and states passed the 22ndAmendment to the Constitution, restricting the President to two terms.
Richard Nixon had an expansive view of his powers as President. While we remember the “Watergate” abuses, using the intelligence agencies to cover-up criminal actions, fewer remember the wage and price controls that Nixon imposed on the United States in 1971. Congress reacted to his expansions (and his criminality) by arranging for him to resign.
George W. Bush was faced with the 9-11 attacks. His response was an enormous expansion of the intelligence community; including legal opinions allowing the collection of electronic data on almost every American, and the rendition and torture of our “enemies.” Congress and the Courts have pulled many of those “powers” back.
Lincoln, Roosevelt, Nixon, Bush: in all of these cases the President took more executive powers, and Congress took them back in reaction. Today with President Trump, Congress has not reached a consensus to re-balance our governmental structure; yet.
Like Nixon, Trump has found legal basis for his questionable actions. He has found an Attorney General who will “investigate the investigators” for him, stifling any questions about his actions. And like Bush, he has found those who will create a “legal underpinning” for his expansions of power.
It will ultimately up to Congress to check his excesses. They could use the Article I Impeachment powers, or they could simply get enough of a majority together to take their powers back. It will take the will of Congress, and the will of the American people, to get that done. 2020, here we come.
