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Essay: How “Great” Presidents expanded Presidential Powers Over History

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  • Published: 23 February 2023*
  • Last Modified: 22 July 2024
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  • Words: 1,380 (approx)
  • Number of pages: 6 (approx)

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The Constitution granted the presidency powers of its own, such as the power of commander in chief. Presidents have deliberately sparked war, seeking congressional approval only later, as when James Polk ordered Zachary Taylor to move against Mexican forces on the Texas border in 1848, an act that made the United States the dominant power in North America. The Constitution, American history, our legal precedents, and the demands of a modern society and economy-perhaps unfortunately-simply require presidents to exercise broad powers. Historians almost always judge to be "Great" those presidents who have wielded presidential power the most boldly and expansively. Such Presidents as Martin Van Buren, William McKinley, or Woodrow Wilson, made lasting changes to the political system and to the structure or powers of their office. The ordeals of the founding of the nation, the Napoleonic Wars, the nationalization of society, the Civil War, or World War II, were not met without the Presidents of the day making the broadest use of their constitutional powers. Time must pass before strong conclusions can be drawn about whether any particular exercise of power, either by the President or by Congress, was to the nation's benefit-if only because it takes the perspective of time to see the overall effects of those policies. Today's critics of the powers of the Presidency too often underestimate the power of politics to corral any branch of government that goes too far. All "Great" Presidents have been accused of abuse of power, whenever they used their constitutional authorities in ways they thought to be to the benefit of the nation. Whenever misuse of power has come to light, the political system has frustrated, neutralized, or even forced out the President. Standard texts like Arthur Schlesinger, Jr.'s Imperial Presidency observe how Presidents later used emergencies and war to expand their power to areas originally given, in theory, to Congress, the courts, or the states. There is no mention in the Constitution of a cabinet or power over the agencies, but the President is given the duty to "Take Care that the Laws be faithfully executed." While the Framers granted the bulk of power to Congress-most importantly the authority over domestic legislation and taxing and spending-it left the outer contours of the Presidency open-ended. Broad phrasing inevitably became a legal vessel for new powers; as the nation grew and foreign affairs became more important, the President's responsibilities grew too. The President's enhanced power over treaties has been treated as fixed precedent, one which has arisen not from any sharp disagreement over constitutional interpretation, but out of a moment of historical pique. Placing "The executive power" and the "Judicial power" into the presidency, and the Supreme Court, respectively, as the Constitution does, are examples of the separation of powers. They proceeded to do so, through history to come, by taking full advantage of the open-ended nature of the constitutional text on presidential power, a choice that may, perhaps, have reflected the Founders' confidence in the unimpeachably trustworthy George Washington expected to serve as the nation's first President. Writing under the pseudonym "Pacificus," Hamilton wrote newspaper articles arguing that the Constitution made the President "The organ of intercourse between the Nation and foreign Nations" because foreign relations was part of the "Executive power" of the United States as understood by the British and state constitutions. At Jefferson's urging, Madison replied in the press as "Helvidius." Reversing a position he had taken six years earlier, Madison argued that the President had little if any inherent authority by virtue of his executive power. The most important power of the President under the Constitution so far as the bureaucracy is concerned is his power to fire officials. In creating the first great departments of State, War, and Treasury in 1789, Congress debated whether the President needed the advice and consent of the Senate before he could fire cabinet members, and, in what has become a controversial decision among historians and legal scholars, recognized the President's power to fire heads of departments. Executive privilege refers to the power of the President to refuse to disclose information to Congress and the courts. Our greatest Presidents-Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt, and the Presidents of the Cold War-have built the institution and power of the presidency in coordination with their political parties. T.R. later declared in his autobiography that "The executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under its Constitutional powers"- that is, that he, and any President, was free to exercise all the powers of the federal government that the Constitution did not specifically deny him. In a 1936 decision, the Court declared that the President was the "Sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress." The Court said that presidential discretion would be permitted over national security matters which would be impermissible solely in domestic affairs. The postwar period has taken place within the outlines established by FDR. Individual presidents have expanded executive power in some areas, but lost it in others. Presidents, most notably Presidents Reagan and Clinton, have sought to exercise ever greater control over the bureaucracy by exercising the power of removal, and claims to issue binding orders on all executive branch officials. Our chief executives have become the center of power of their political parties, to the point where Presidents decide their parties' platforms, run the nominating conventions, and assemble coalitions. Recent Presidents such as Bush or Clinton have exercised the powers of their office energetically not because they are power-hungry, but because it is in the clear best interests of the nation to have coherent policy in the government's day to day operation. Witness the effort of the Republican Congress to give President Clinton the power to veto specific spending projects, only to be blocked by the Supreme Court. Media attention has transformed Presidents into celebrities, making their every move seem to be central to the political universe without explaining the very real limits on their constitutional powers, which include some recently created laws of fairly recent vintage and uncertain application or constitutionality. Richard Neustadt's classic Presidential Power and the Modern Presidents argued that the presidency was an inherently weak office, beset by foreign and domestic events and the demands of domestic interest groups, party members, and other institutions. Scholars who have followed Neustadt-most recently Fred Greenstein in The Presidential Difference-have sought to root the President's power in characteristics such as communicative and political skills, organizational ability, vision, cognitive style, and emotional intelligence. For the leading school of thought in political science, a President who resorts to unilateral action based on his constitutional powers has failed, not succeeded. The leading books on constitutional law used in American schools, such as the most recent edition of Constitutional Law by Geoffrey Stone, Louis Seidman, Cass Sunstein, and Mark Tushnet, devotes only 100 out of 1560 pages to conflicts between the powers of the President and Congress. Current legal scholarship on the presidency focuses almost exclusively on the meaning of Article II's vesting of the "Executive Power" in a single President, and whether that gives the President the power to fire executive branch officials for any reason. In the 20th century, the idea of presidential power has taken full advantage of the broad language of the Constitution and expanded to include management of the agencies and other powers inherently "Executive" in nature-in contrast with the Constitution's grant of specified, or "Enumerated," powers to Congress. The political effort to curb the President's power over judicial appointments today has been heated: filibusters withholding Senate approval, for example, have proliferated to the point of judicial system paralysis. Less well understood is that the Framers of the Constitution insightfully designed the executive this way-to wield executive power, the power of action rather than rule, effectively and flexibly. One might add that it is precisely those Presidents who used and expanded power most dramatically, that historians, political scientists, and law professors have always regarded as great. President Lincoln relied on his power as Commander-in-Chief in the Civil War to unilaterally free the slaves.

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