Did the Founders Intend So Much Power in the Presidency?

Donald Trump’s presidency has made one thing glaringly clear: The United States has come to invest a great deal of power in its President.  Completely on his own, Trump has pulled the country out of the Paris Climate Accord and the Iran nuclear treaty; disrupted the post-World-War-II international order with persistent attacks on our Western allies and support for the Russian president; up-ended immigration policy; and many other demonstrations of his power. 

Although such use of power has been almost customary for recent presidents, it was certainly not the intention of the Founders.  After the Revolutionary War against the despot George III, they feared such concentration of power in a single person and granted presidents only a few express powers:
      ● To command the armed forces
      ● To grant reprieves and pardons,
      ● To make temporary (lasting only one year) appointments during a Senate recess, and
      ● The following, but only subject to Senate approval
            ● To veto legislation (this can be overturned by a 2/3 majority vote of the Senate)
            ● To appoint federal and Supreme Court judges, subject to confirmation by the Senate  
            ● To make treaties subject to ratification by 2/3 majority of the Senate
 
Their obvious intention was to limit the power of the president profoundly and give Congress the authority to govern the country.  While they gave the president few express powers, they also gave few limits (except to those powers given expressly to the legislative and judicial branches of government).  That, it turned out, opened the sluice gates.

Trump’s unilateral actions are not new: they follow historic precedent set by president after president. From the very beginning, presidents worked, often successfully, to protect and expand their power beyond what the Founders intended. 

• George Washington began the pattern: when Congress requested documents concerning a treaty, the first president refused to turn them over, thus establishing the doctrine of executive privilege and making a point about the autonomy of the executive branch. 
• Andrew Jackson was the first to make extensive use of the veto.  
• During the Civil War, Abraham Lincoln interpreted his wartime powers as commander-in-chief far more broadly than intended, for instance, by suspending habeas corpus. 
• Other presidents, for instance, Teddy Roosevelt and Woodrow Wilson, also expanded presidential power methodically.

With time, the slow, deliberative nature of congressional legislating became less and less suited to the complexity and sheer numbers of issues confronting government, and Congress ceded more and more power to the executive branch, which eagerly accepted it.  The modern presidency evolved swiftly under Franklin Roosevelt, who became not only the chief executive—as implementer of policy—but also chief legislator—as architect and drafter of policy.  He created new agencies to provide relief and jobs for millions of desperate Americans, he ran for an unprecedented third term, and he secretly sent fifty warships to England at the beginning of WWII before Congress had declared war.  He even tried (unsuccessfully) to pack a recalcitrant Supreme Court by expanding it to fifteen members, which would have given him the opportunity to appoint seven friendly judges who would have given him a Court majority that supported  his policies.

After Roosevelt, each succeeding president continued expanding the power of the office. President Truman, for instance, made the unilateral decision as commander-in-chief to come to the aid of South Korea in the “conflict” against North Korea without a declaration of war. Since Truman, no president has asked Congress to declare war, yet military forces have been involved in almost continuous warfare since then: there have been no congressional declarations for the war in Vietnam, military action in Central America, the war in Iraq, the war in Afghanistan, our participation in the Syrian conflict and many other military interventions.  All have violated the express constitutional powers given to Congress and have, therefore, been unconstitutional. 

Although there is no legal provision for it, President Reagan and presidents following him (especially George W Bush) frequently used “signing statements” to object to parts of legislation they disagreed with.  Formally, these signing statements have no meaning.  Signing statements, however, signal to executive branch employees how they are to write regulations for many laws, thus in effect rewriting the legislation, which the president has no authority to do. The Supreme Court has never offered an explicit opinion on signing statements.

In part because of partisan gridlock in Congress that blocked any meaningful legislation, President Obama used his executive orders liberally.  He ordered environmental legislation and formulated a blizzard of often highly specific regulations, such as limits on airborne silica at job sites, an overhaul of food labels to clarify nutritional information, and a measure making millions of workers eligible for overtime pay.  In foreign affairs, the president has virtually unlimited power, which Obama used to enter the nuclear into treaty with Iran and sign the Paris Accord on carbon emissions.  The increasing expansion of presidential power seems almost inevitable, especially in a time of extreme partisanship. When Congress can’t act, any president is tempted to use whatever power he can, at least whatever power the Supreme Court will allow.

I hardly noticed and certainly wasn’t disturbed by presidential power during Obama’s term in office, most probably because I agreed with most of what he did and was impatient with Republican obstructionism.  It seemed to me that Obama had no other choice.  Trump’s presidency, however, has been filled with actions that I find appalling.  It’s no wonder that I now find the expansion of the power of the presidency so concerning.  But, in fact, Trump, for all his wildness, has probably used the unilateral power of the presidency formally less than Obama.

One might conclude that the Supreme Court’s interpretation has gradually come to be that the President has any power except those given to other branches and those explicitly limited by an act of Congress.

This presidential accumulation of power is a significant threat to democracy. Especially when the president’s party controls Congress and will not challenge presidential actions, the gradual accumulation of autocratic power has become a fait accompli.

It’s not clear how this inappropriate accumulation of power can be rolled back or even limited.  Impeachment, of course, is one option, but impeachable offenses are limited to “treason, bribery, or other high crimes and misdemeanors,” a high standard, almost impossible to meet when the president’s party controls either the House or the Senate.  Congress can write laws that curtail presidential power, for instance, when it limited President Trump from unilaterally lifting Russian sanctions it had just imposed, but that, too, is cumbersome and politically risky.

In a parliamentary system of government, the Prime Minister can be sanctioned immediately by a vote of “no confidence” and a change in government.  There is no such provision in our presidential system of government.

I’m not sure how we can avoid continuing this accumulation of Presidential power.  It is one of the real risks to our democracy.