The expansion of presidential powers beyond constitutional intent

Constitutional Authority

Examining the Nature and Growth of Presidential Powers

Since the United States Constitution officially took effect in 1788, very few changes to the document have been made, yet in spite of the relative static nature of the document, the power of the American presidency has increased. And rather than fight against the expanding authority of the president, the American public seems to embrace an ever-enlarging assumption of power by the president. Americans want their president to be strong but not overreaching, decisive but inclusive, commanding but not overbearing. It is these kinds of demands on the American chief politician that have stretched the powers of the presidency. Today, the office has grown to immense proportions not just in the United States, but in the eyes of the entire world. This all takes place in spite of the efforts of various individuals, groups and even nations that attempt to reign in the power of the leader of the world. Interestingly, this enlargement of the presidency has occurred in spite of the "legislative supremacy"1 many of the framers intended.

The constitutional authority of the presidency as enumerated by Article II of the constitution outlines a position with a great deal of authority, however because of the efforts of specific office holders, presidential powers have stretched beyond the confines envisioned by some of the founding fathers.

These efforts have been possible because the "strength [of the presidency] is its malleability"2 which allows visionary and ambitious individuals an opportunity to build upon what they are given. But in spite of the best efforts by each man that has held the office, the presidency remains quite separate from the president. This idea is manifest with each transition of power from one president to the next. New presidents bring their own ambitions, desires and appetites to the job necessarily changing the way in which the various powers of the president are brought to bear on any given issue. Powers that are gained by a president as a result of initiative, drive or force, naturally escape the grasp of that man once the office has been yielded up to another.

To better understand the constitutional authority of the president, it will be helpful to examine the powers specifically enumerated by the constitution. Over the years, "new" powers have been afforded the American leader with some authority that would more appropriately find its place within a monarchy. But the expansion of power and the adoption of new powers have not happened as a natural evolution of the office. Rather, the increased authority has resulted from the efforts of specific men whose personalities stretched the office to fit more comfortably around them. Once acquired, however, the powers did not recede but instead remained within the office regardless of exercise. Ultimately, new powers are challenged through mechanisms devised by the founders to keep the presidency from evolving into a monarchy. Some of the powers are stripped away while others have remain in place. Throughout the ebb and flow of presidential authority the office has remained "a mirror of our national life, reflecting accurately the events that have made our history, the men we have chosen, for better or worse, to deal with those events, and our own willingness to entrust them with enormous authority over the nation's destiny."3

Increasing the President's Constitutional Authority

Notwithstanding the ambiguity left in the Constitution, the framers did enumerate specific powers for the president but left enough room for ambitious office holders to increase the power of the position.

In fact, it is based on the verbiage included and the interpretation thereof, that some of the most contentious battles over presidential authority have been waged. When this happens, an overreaching president can find himself in the midst of a constitutional crisis that often has to be resolved at the Supreme Court or by succumbing to public opinion. Ambitious presidents have attempted to strengthen presidential authority, which has been successful at times and has helped to keep the presidency in check at other times. When sitting presidents stretch the authority of the office it is generally decried by the press using historian Arthur Schlesinger's term imperial presidency and insisting that the president is acting in a way that is beyond the established constitutional authority. But modern presidents have a great deal of precedent and public opinion behind them which enables them to very often thwart efforts of those who would seek to challenge their efforts to grasp new powers.

American historians and political scientists, this writer among them, labored to give the expansive theory of the Presidency historical sanction. Overgeneralizing from the [pre-World War II] contrast between a President who was right and a Congress which was wrong, scholars developed an uncritical cult of the activist Presidency.7

Wrapped in a cloak of tradition and history books replete with examples of mighty presidents that forced an unwilling Congress to take necessary actions, the president has very few obstacles to overcome when seeking to increase the reach of the office.

However, legal challenges do not often bow to history books or public opinion as President Richard M. Nixon learned three decades ago.

Richard Nixon had asserted the power to wiretap Americans to protect national security, to stop newspapers from publishing the Pentagon Papers, and later -- in the final days -- to shield his Oval Office tapes from a special prosecutor. The president lost all three cases.8

Still, the decision has not stopped succeeding presidents from asserting rights that are not specifically enumerated in the Constitution.

President George W. Bush asserted rights that could not be challenged with regard to enemy combatants being held by the U.S. government.

The Bush administration's position is theoretical and practical. In theory, it doesn't want to concede any rights to foreign detainees under the Constitution, treaties or international law.9

Although the Bush administration has been challenged on its position even to the point of being brought to the Supreme Court of the issue, the administration and the Bush Justice Department have not backed down. To date, President Bush still asserts the authority to hold enemy combatants with little or no chance of having their case heard before a court. However, some strides have been made to curtail the president's assumed power.

In June, the Supreme Court ruled that the president's war powers are not "a blank check." The court said that a U.S. citizen held in a Navy brig in South Carolina and nearly 600 suspected al-Qaeda and Taliban operatives held in Cuba have a right to contest their detentions.10

Despite the ruling, there is still a fight going on whether the detainees have the right to receive legal counsel indicating that the Bush administration is not likely to let go of its newly claimed authority.

The Future of the Presidency

It seems likely that given the trends toward increasing power for the executive branch of the government that similar developments will occur in the future. However, the growth of presidential authority is not inherently bad for the American people. It is a response to the changing climate that the modern world has presented with its changing and difficult threats that come in the various forms but almost always require a single leader to see the country through. The Constitution assures that specific limits will be placed on the president to assure that the office does not reach tyrannical levels of power. Beyond that, the American press will be sure to cry foul when any attempt is made to abridge civil liberties helping to assure that the people they inform can vote changes in that will provide further checks against a rogue presidency. Ultimately, it is the responsibility of the people to assure the presidency is held in check and it will be up to them to decide how far the presidency is allowed to grow.

Notes

1. Theodore J. Lowi and Benjamin Ginsberg, American Government, (New York: W.W. Norton & Company, Inc., 1992), 138.

2. Dom Bonafede, "Presidential Mythology," National Journal, 12 Aug. 1980, 2.

3. Ibid.

4. Lowi and Ginsberg, American Government, 131.

5. Ibid, 131.

6. "Losing America: Confronting a Reckless and Arrogant Presidency," Publishers Weekly, 5 Oct. 2004, 45.

7. Donald R. Wolfensberger, "The Return of the Imperial Presidency?," Wilson Quarterly, 26 (2002): 36.

8. David G. Savage, "Executive Decisions," ABA Journal, 90 (2004): 18.

9. Toni Locy, "U.S.: 'No legal rights' for detainees," USA Today, 13 Aug. 2004, 15a.