I. The Modern Presidency and the Constitutional Presidency↑

There are many different ways of looking at the American Presidency; this chapter will focus on the Presidency as an institution, as opposed to focussing on the psychology of individual Presidents. We will consider the relationship between the “formal” powers of the Presidency (the Presidency that was created by the Constitution) and the power of the Presidency in practice by contrasting two theories about the Presidency: the theory of the “Modern Presidency” and the theory of the “Constitutional Presidency.” Both theories attempt to explain how the Presidency in practice relates to the formal powers of the Presidency created by the Constitution. According to the first perspective– probably the dominant perspective in political science– the Constitution explains relatively little about the Presidency today, because the Presidency has changed over time. The powers of the Presidency, and the role played by the Presidency in American politics, have changed so much that we cannot regard the formal institutional powers created by the Constitution as the primary source of modern Presidential practice. Thus, there is a fundamental difference between the Presidency created by the Constitution and the “Modern Presidency”; the Modern Presidency was a consequence of technological, economic, and ideological transformations, and it has not been constrained by the “parchment barriers” created in 1787.¹

In contrast, the theory of the “Constitutional Presidency” suggests that, while the role of the national government has changed over the course of American history, the formal or constitutional powers of the Presidency have largely remained the same. While the first theory focuses on the differences between so-called modern and pre-modern presidents, the “Constitutional Presidency” theory suggests that all of the characteristics of so-called “modern Presidents”– legislative leadership, public leadership, and the exercise of discretionary power in domestic and foreign policy– have been present from the beginning. While there are differences between various Presidents (due to their personalities, ideologies, relationships with the public and their parties, and so on) the Presidency as an institution has changed relatively little over time. The Presidency we see and experience is a result of the formal institutional structures created by the Constitution.²

The formal features of the Presidency are relatively easy to enumerate (most of these features will be discussed in more detail below.) The President is selected through the electoral college: state level, mostly winner take all elections) and serves for a four-year term, with one opportunity for re-election.³ Though the President is often referred to as the Chief Executive, the institution also come equipped with a crucial legislative power: the power to veto laws passed by Congress, though the veto can be overturned by the votes of two-thirds of the members of both the House and the Senate.⁴ In addition to the veto power, the President is directed to provide information and make recommendations to Congress. The President also has the power to make treaties, though ratification depends upon the agreement of two-thirds of the Senate.⁵ The President is the Commander in Chief of the armed forces, and appoints judges, ambassadors, and other high level officials of the national government.⁶ Perhaps most importantly, the President is vested with the “executive power,” and tasked with insuring that the laws of the United States are faithfully executed. With the notable exception of the electoral college, the formal or legal structure of the Presidency has remained the same for more than two centuries. The question that we will consider is whether the Presidency in practice bears any relationship to the Constitutional Presidency, or if the force of circumstances and historical change have transformed the Presidency as an institution. The Presidency has certainly changed; the question is whether the Presidency has grown in the way that a single living organism grows (changing over time while retaining its identity), or whether, in practice, the Presidency has undergone a more fundamental or “evolutionary” shift.

II. The Presidency Today: Cabinet, the Executive Office of the President, and White House Staff↑

It is worthwhile to consider in broad outline what we are trying to explain– our “dependent variable”, as the social scientists like to say. We want to consider the ways in which the Presidency has become “modernized,” and to do this we will focus on three general characteristics of the modern president. First, Presidents play the role of “national leader;” they claim to embody the public will, and they use this as a justification for the exercise of power. Presidents argue, with varying degrees of success, that their political goals are based upon public mandates, and they spend a considerable amount of energy attempting to shape or mobilize public opinion. Secondly, the President, while formally separated from the legislative branch, plays an active role in all stages of the legislative process (though perhaps not in regards to all pieces of legislation.) All Presidents, particularly in the post-New Deal era, are expected to have a legislative agenda, and they attempt to shape the law-making process in addition to enforcing law and implementing public policy. Most major legislative initiatives, though certainly not all, are associated with Presidents. Finally, Presidents possess the power to shape policy directly, through their control of the bureaucracies which implement domestic and foreign policy. For instance, the meaning of “environmental policy” can shift depending upon who sits in the Oval Office. Without having to change any existing laws, and without having to adopt any new laws, Presidents are able to re-shape the rules that govern the United States. The principal means of direct Presidential control over the laws and regulations of the United States are executive orders—directives from the President to other officials within the executive branch, which order them to take some action or set of actions. Beyond the direct method of shaping law and policy through executive orders, Presidents shape policy by appointing cabinet officials, as well as lower level officials within the executive branch, who oversee the implementation, interpretation, and development of law and policy.

President George W. Bush was able to change American environmental policy when he became President; similar shifts in policy occurred under President Obama, and environmental policy shifted again as Donald Trump became President in 2017. In some ways, this dynamic has always been a part of Presidential politics. The choices Presidents and their appointees make about how to enforce law has always been political. Yet the character of modern law and the modern policy making apparatus—in particular, Congressional decisions to delegate legislative power to executive branch bureaucracies—greatly expands the power of Presidents to shape policy directly.

The modern Presidency has developed a massive apparatus to enable the President to fulfill their duties as legislator in chief, executive in chief, commander in chief, and representative of the nation in foreign affairs. The most prominent administrative officials consist of the cabinet—the group of men and women who oversee the administration of the major departments of government. Currently, the cabinet consists of 15 cabinet secretaries and the Vice President, as well as close to a dozen “cabinet level officers.”

Table 6.1: The Presidential Cabinet

In addition to the cabinet, the executive branch also includes the Executive Office of the President, a wide variety of individuals and organizations whose primary purpose is to provide direct assistance and advice to the President. The Executive Office of the President includes the National Security Council and the Council of Economic Advisers, as well as the White House Office, which consists of advisers who are in close contact with the President.

The relationship between the President, the cabinet, the Executive will vary, depending upon the characteristics of the President. In general, the collective role of the cabinet in advising the President has declined over time and the role of the White House staff has increased in significance.⁷ During his tenure as Secretary of Labor, Robert Reich often found it difficult to contact President Clinton. The President’s advisors within the White House often played major roles in developing policy, while cabinet secretaries were mostly expected to implement the decisions made in the White House. Reich claimed that cabinet secretaries were treated like “governors of distant provinces” by the White House staff; he once advised the Secretary of the Treasury to linger in the parking lot between the West Wing and the Eisenhower building if he wanted to have a chance to speak with important White House staffers. From Reich’s perspective, the purpose of the White House staff was to insure that real policy-making power was concentrated within the White House itself, which meant, in practice, that the President’s decisions would be shaped by staffers who, unlike the cabinet, had not been examined, questioned, and confirmed through the Senate appointment process.⁸

Different Presidents had different relationships with their cabinets. George Washington, during his tenure as President, took advantage of the skill and experience of his cabinet, which included politicians of the calibre of Alexander Hamilton and Thomas Jefferson, in order to evaluate both political and constitutional questions.⁹ The growth of non-cabinet staff who reported to the President occurred very slowly. By the time Abraham Lincoln became President, the situation had become intolerable; with only a tiny number of secretaries and staff, the President’s time was taken up by insignificant paperwork and a constant stream of petitioners seeking federal employment. Just as significantly, Lincoln was willing, unlike some of his predecessors, to delegate close to complete responsibility to cabinet officials, particularly in areas of economic policy and foreign policy. Even by the 1860s, the responsibilities of the President had become too vast for “micro-managing.”

Today, the Presidency includes literally hundreds of individuals who exist to serve and advise the President. This seems unsurprising, given the expectations that are placed upon the Presidents. The question is whether the expectations that the public has for the President are realistic, and whether the vast resources of the President are a sign of more troubling forms of executive aggrandizement.

III. The Presidency and the Constitutional Order↑

What kind of political office did the Constitution create when it created the Presidency? To answer this question, it is helpful to notice things that are right in front of our noses, such as the differences between Article One of the Constitution (which deals with Congress) and Article Two (which deals with the Presidency.) There is a curious lack of detail in Article 2 of the Constitution regarding the extent of executive power, particularly when compared with the greater specificity regarding legislative power in Article One. The Constitution grants the legislative power to Congress, and then adds numerous qualifications; the Constitution grants the executive power to the President, and it says very little else about the meaning of executive power.

We will return to the ambiguity of executive power a little bit later. First, let us consider the system of Presidential selection, and what it tells us about the role of the President.

The Electoral College and the Presidency

The electoral college is the key element of the Presidential selection process created by the Constitution, though we should note that the original mode of selection was never really put into practice. Under this system of selection, each state is given a number of votes equal to its number of representatives and senators (today, 435 members of the House, 100 senators, plus three electoral college votes for Washington, D.C.) Whoever receives the majority of votes in the electoral college becomes President—though if no candidate wins an absolute majority, state delegations from the House of Representatives choose from amongst the top five candidates. Under the original system, electors were selected by voters but not controlled by voters; the public would choose the electors, and the electors would choose the President. We know what this mode of selection tells us about the framers’ conception of the public: from the framers’ perspective, the general public lacked the knowledge and experience necessary to choose a suitable chief executive. But what does the electoral college tell us about the intended role of the President in the political system?

One possible interpretation is that indirect selection of the President through the electoral college was meant to raise the president above parties and partisan conflict, creating a chief executive more akin to the Chief Justice of the Supreme Court than the Speaker of the House or the Senate Majority leader. What is the best evidence for this? Consider the original mode of selection for the Vice President: Article II, Section I, Paragraph 3: “The Person having the greatest Number of Votes shall be the President, if such Number be a majority of the whole Number of Electors appointed… after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice-President.” Had this practice been maintained, we would now have President Trump and Vice President Clinton. This mode of election was altered by the 12th Amendment, which created separate votes for President and Vice-President, thereby insuring that they will always be from the same party. The 12th Amendment is a sign of the development of party conflict in America (though the party system itself would not be developed fully until the 1830s); but it also shows that it was probably impossible for the Presidency to be an apolitical office.

The early “politicization” of the Presidency shows that, given the powers granted to the Presidency by the Constitution, it was unrealistic to maintain the electoral college in its original form. One of the major issues in American political development is the relative “balance of power” between the Presidency and Congress. What the development of the electoral college shows us is that, almost immediately, the President became more active as a political leader or partisan figure than was anticipated by the Framers of the Constitution. Contrary to the expectations of the Framers, the electors in the electoral college have never really exercised independent judgment. Presidential elections have always been a public affair (as opposed to a matter of elite selection), and as the adoption of the 12th amendment illustrates, it was impossible for the Presidency to be kept separate from partisan politics. Presidents do not want their electoral opponents to be their vice presidents, though I am sure this would have led to some interesting Roman-style conspiracies over the past two centuries.

For those who advocate the notion of the “Constitutional Presidency”– the idea that the President has always played an active role as a political leader– the “failure” of the original intentions of the electoral college shows that it was impossible for the executive branch to be de-politicized. As a representative of public will and embodiment of the national interest (in contrast to the particular interests represented in Congress), the Presidency could not be insulated from political forces. The Constitution created an institution that was bound to be politicized; the President, armed with formidable formal powers, became an active force in public life, as opposed to being merely the executor of the will of Congress or defender of the Constitution.

Executive Power: Presidential Discretion, Presidential Prerogative, Executive Orders, Appointments

The Constitution grants “the executive power” to the Presidency, but it does not explain what this power is. This is not merely a matter of oversight. For a variety of reasons, the creators of the Constitution felt less need to explain and define executive power than legislative power. The policy authority given to Congress is specific and well defined, at least in comparison with the policy authority granted to the President. Perhaps this is because it is inherently easier to define legislative power. The power to legislate is the power to create rules; Congress has other powers related to this task (such as the power to conduct investigations, for instance) and it has power to oversee the implementation of the laws it creates. Executive power can be left relatively unconstrained because the powers of Congress are relatively well-defined, and because the legislative process is itself constrained by the Constitution. Just as importantly, executive power is left undefined because it cannot be defined precisely; executive power encompasses the power to enforce the law, but also the power to act in ways that are not governed by law, and perhaps even in ways that go against the law. The purposes of executive power—enforce the law and protect the interests of the community—can be defined, but what can de done in pursuit of those purposes cannot be defined with precision.

There are at least two ways of thinking about the ambiguity of executive power in the American constitutional system. First, let us consider the “constrained” view of executive power; we can call this the “clerk in chief” perspective. According to the clerk-in-chief perspective, the executive power, being essentially subordinate to Congress, does not need to be as constrained or as limited as the legislative power of Congress. This is because Congress is the source of law, and the primary duty of the President is simply to enforce the laws created by Congress. To use the terms of modern social science, Congress is the “principal,” and the President is the “agent.” The absence of any explicit definition of executive power is fully compatible with Congressional supremacy; the executive power is not defined strictly, because executive power is essentially subordinate to the legislative power of Congress. According the theory of the “Modern Presidency,” the Constitution aimed to create a “clerk in chief” President, but this institution proved to be inadequate to face the challenges of the modern erar. The Presidency of today is a consequence of institutional development from a Congress-centered form of government to an executive-centered form of government.

In contrast, the theory of the “energetic executive” suggests that executive power must be left undefined, because to a great extent it cannot be defined. Executive power involves aspects of politics that cannot always be reduced to the creation or enforcement of general rules. Executive power addresses the extraordinary, the unexpected, and the unforeseeable, and as a consequence, the executive power of the Presidency cannot be constrained by precise legal definitions. While the Constitution gives the President the duty to insure that the laws are faithfully executed (Art. 2, Sec. 3), executive power cannot be reduced to the enforcement of rules. This is because politics cannot be reduced to the enforcement of rules, even though a stable set of constitutional and legal rules, enforced impartially and equally, is essential to any good political order.

The Constitution creates an inefficient legislative process, but it did not create an inefficient executive branch. There is only one President who controls the executive branch in its entirety; the office of the President is unitary; it is not government by committee. The Presidency can be unified and energetic because of the divisions and inefficiencies of the legislative process—any law that passes the multiple hurdles of the legislative process should, presumably, be implemented in a relatively efficient manner.¹⁰ The unitary character of the executive only becomes a problem when Congress abandons its own legislative powers—or its war powers—by delegating those responsibilities to the executive branch.¹¹

Executive power includes the power to enforce law, but this cannot be done successfully without a considerable amount of discretion. The power to enforce law must, as a practical necessity, include the power to choose when and how to enforce the law. Yet the scope of law has changed in the 20th century, and so the scope of Presidential discretion has changed as well. What theories of the “Modern Presidency” miss is that it not the Presidency which has changed, but rather the policy authority and policy processes of the national government. The formal powers of the Presidency have not changed; the formal powers of Congress have changed, and this results in a quantitative shift in Presidential responsibilities, but not a qualitative transformation of the institution of the Presidency.

Nevertheless, there are instances in which a quantitative change can lead to a qualitative change. The most significant quantitative change relevant to the Presidency is the expansion of federal jurisdiction (e.g.the view that the commerce clause encompasses “the economy” and anything that affects “the economy”) and thus the expansion of federal law, which creates an unavoidable problem for the President. Under modern conditions of expanded federal jurisdiction, it is more difficult to insure that the laws of the United States are “faithfully executed.” As the number of laws increases, the significance of Presidential discretion and priority-setting increases as well. Executive power has always included the power to decide when not to enforce law; this power becomes more momentous as federal law becomes more ubiquitous.

We shouldn’t be frightened by the idea that Presidents must choose which laws not to enforce; we experience this aspect of executive power almost every day, insofar as you can experience a non-event. Consider the case of police officers. Every officer of the law decides when to enforce the law, which will not be in every instance; for many police officers, maintaining order is more important than punishing every legal infraction. This is executive power; it belongs to the officer on the street, and it belongs to the person sitting in the White House.

What limits the power of Presidents to not enforce law? Congress can challenge Presidential discretion simply by drawing attention to it, or by refusing to cooperate with other Presidential initiatives; arguably, a President could even be impeached for choosing not to enforce public law. Freedom of the press—or freedom of the internet—is one of the important mechanisms for keeping a watchful eye on presidential discretion. Congress can also create mechanisms for enforcing federal law that do not rely upon Presidential or executive branch action—for instance, by empowering private groups to enforce public law, or by creating “statutory rights” that empower individuals to employ litigation as a tool or policy implementation.

Discretion has always been a part of executive power. What has changed is the scope of executive discretion, a consequence of the massive expansion of the administrative state; there are more laws to ignore in the 21st century than in the 19th.

Executive Power: Presidential Discretion and Presidential Prerogative

“Presidential” or “executive” discretion refers to the idea that Presidents must, in some circumstances and in some ways, choose not to enforce laws as part of their executive duties. We now turn to an issue even more controversial: the question of whether executive power includes the power to go “beyond the law,” to violate the statutes created by Congress or even the Constitution itself, in situations of dire emergency. This power is sometime referred to as “prerogative power.”

To understand the idea of prerogative power, we should see that it is based upon the idea that the rule of law, as important as it might be, is not the highest end of political life. There are instances in which it is better for society if its rulers ignore the rule of law in order to insure the survival of society. John Locke, one of the key intellectual influence on the founders of the American constitution, wrote in his Second Discourse on Government that “the laws themselves should sometimes give way to the Executive Power.”¹² Does the “vesting clause,” which grants the President the executive power, also give the President the power to ignore the law? Many have answered yes, even those who otherwise had very different understandings of the American Constitution.

For instance, both Thomas Jefferson and Alexander Hamilton accepted the need for prerogative power, despite the fact that they disagreed about other aspects of Presidential power and the jurisdiction of the national government. As President, Thomas Jefferson did not hesitate to use the prerogative power in situations where he felt that he had no agreement with France, doubled the size of the USA by acquiring 830,000 square miles of territory. Some regarded this as an unconstitutional use of the treaty power, arguing that nothing in the Constitution gives the national government the power to acquire territory and confer citizenship on new citizens. As a strict Constitutional constructionist, this is what Jefferson himself believed. Yet faced with a choice between publicly acknowledging his doubts about the constitutionality of the Louisiana Purchase and pursuing what he thought to be in the best interests of the nation, Jefferson chose the latter.¹³

Many of the most famous examples of Presidential prerogative power have occurred during times of war. For President Lincoln, once the Civil War was initiated by the South, military victory was more important than the rule of law. The Lincoln administration used military tribunals to try civilians, suspended the writ of “habeas corpus” without Congressional authorization; arrested political dissenters and held them without trial; and spent money without following the congressional appropriations process. Lincoln claimed it was foolish to defend the letter of the law, if that meant that the constitutional order as a whole would be destroyed. During World War II, FDR forced citizens of Japanese descent who lived on the Pacific Coast into internment camps—an action which was sustained by the Supreme Court, though the grounds of the ruling are somewhat ambiguous. Most ominously, some members of the Supreme Court suggested that the President’s actions were not even illegal. Justice Robert Jackson, in a compelling dissent, acknowledged that there may be circumstances in which the executive must violate the law and the Constitution to serve the interests of the nation—but in those circumstances, it is the duty of the court to acknowledge the illegality of those actions. The most dangerous possibility that could result from the prerogative power would be to forget the exceptional character of that power, as that could lead the public to assume that unlawful actions were not merely necessary, but lawful and even unexceptional. The great danger was that actions taken under the exceptional conditions of war would become a normal part of political life.

The “War on Terror” produced many other opportunities for Presidents to exercise power beyond the law, or at least outside of the normal legal process. President Bush established military tribunals to try suspected Al Qaeda members; acting under his authority as commander in chief, the President created a code for the interrogation and prosecution of detainees that departed from the procedures established by Congress. In the case of Hamdan v. Rumsfeld, the Supreme Court ruled that the “Authorization for the Use of Military Force” that served as the basis for the War on Terror did not allow the President to ignore the Uniform Code of Military Justice enacted by Congress.¹⁴ President Bush asked Congress to revise the standards for military detainees, and Congress complied, which to some degree brought the conduct of the executive into accordance with the law. Yet the peculiar character of the war on terror—its all encompassing geographic reach, the fact that it is a war directed against a method of war as opposed to a defined state, and so on – still creates a number of legal anomalies.

We expect police officers to conduct themselves in accordance with a variety of legal standards; no one expects soldiers to inform their enemies of their Miranda rights. This is not to say that soldiers are not constrained by rules—though in the past, irregular combatants (terrorists, saboteurs, and spies) were not deemed to have the same rights and protections as ordinary soldiers. The condition of war removes many of the constraints on executive power, on the grounds that victory in war—the preservation of the political and legal order as a whole—is more important than maintaining strict legality. What happens, however, when war is not an exceptional condition, with a defined enemy and a defined theatre of operations, but is instead a “global conflict” with no end in sight? The exceptional situation becomes permanent, and the scope of prerogative power seems to extend indefinitely. One could also argue that, even before the semi-permanent “War on Terror,” the long “Cold War” between the USA and Soviet Russia provided various opportunities for executive aggrandizement. Even during a “normal,” state to the state war, such as World War II, the public was willing to accept extraordinary Presidential actions taken in the name of public safety.¹⁵ The Presidency has changed, because our conception of war has changed—and perhaps the actual character of war has changed as well. The Cold War and the War on Terror are conflicts that were and are unconfined by geography and time; in such conditions, it isn’t surprising that Presidential power seems unconfined as well. Whether during times of war (such as World War Two) or times of fear and uncertainty (such as the Cold War or the War on Terror) both Congress and the American people are willing to grant Presidents considerable latitude in their exercise of power.

Executive Orders

The claim that the Modern Presidency is distinct from the Constitutional Presidency appears most plausible if we consider some examples of unilateral Presidential policy-making, particularly in regards to domestic policy. Executive orders are one of the most significant examples of unilateral Presidential power; they are not discussed in the Constitution, though they are a logical outgrowth of executive power. An executive order, in general, refers to any unilateral Presidential decision given to the executive branch. They are one of the principal means through which the President exercises discretion and prerogative. Until relatively recently, most scholars thought that executive orders were confined to relatively insignificant matters, of the kind that an employer might give to employees to guide day to day operations of an organization (e.g. an order requiring federal employees to use seat belts.) Yet executive orders have been used to shape policy in crucial ways. For instance, FDR authorized the internment of Japanese citizens in World War Two through an executive order. Executive orders were also used by Presidents to desegregate the military, and executive orders established affirmative action programs for government contracting. Between 1941 and 1951, Presidents FDR and Truman ordered the seizure of aviation plants, shipbuilding companies, and four thousand coal companies; President Roosevelt authorized the American government to send fifty destroyers to Great Britain during World War II without Congressional authorization. The Executive Office of the President– the administrative infrastructure created by FDR during the late 1930s– was itself created by executive order. Many of President George W. Bush’s most controversial actions as President were based upon executive orders, such as the unilateral decision to impose a military tribunal system to try suspected terrorists, or the decision to deny enemy combatants certain due process rights, including access to civilian courts. As we can see from these examples, the use of executive orders is often related to issues of “security” or “foreign policy;” but as the examples of both Japanese internment and the war on terror indicate, the line between foreign and domestic policy can be very imprecise.

The pattern of executive orders has a “ping pong” like quality, with Presidents reversing previous orders on the basis of ideological differences. So, for instance, President George H.W. Bush used executive orders to limit federal funding for overseas groups that supported abortion as part of family planning; Clinton reversed this, and then Bush the Second reversed Clinton, President Obama reversed Bush the Second, claiming (somewhat ingenuously) that he wanted to avoid “politicizing” the issue.

It is possible for executive orders to be challenged by Congress or in the judicial system, though this is rarely successful. One study found that, between 1973 and 1998, there were only 3 successful attempts by Congress to overturn executive orders, and this during a period when over a thousand executive orders were issued. There have probably been about 50,000 executive orders of varying importance, not including “National Security Decision Directives,” which are classified.) Does this widespread use of executive orders demonstrate that the Modern Presidency is no longer based upon Constitutional principles? That is a plausible claim, but we should note that executive orders have become vastly more significant because Congress has chosen to delegate so many new responsibilities to the executive branch.

Presidential Appointments

One of the most important aspects of Presidential power is the power to appoint officials within executive branch departments. High level appointments require Senate confirmation, and Congress has various ways of overseeing the work that is done within the executive departments as a whole, but nevertheless, the President has immense power to shape the meaning of law by determining who will responsible for enforcing it. There are many laws to enforce, but there are only limited resources for enforcing them; many of the laws themselves grant the executive branch considerable discretion in terms of how they are enforced. This means that “law enforcement” will reflect the priorities of the President, not necessarily the “will” or preferences of Congress.

Where the laws are vast in number, and when the laws grant discretionary power, personnel determines policy. Particular people determine law enforcement priorities, and even the meaning of law itself. The stated enforcement priorities of the U.S. Justice Department under the Bush Administration included prosecutions for the production and sale of pornography; the Justice department prosecuted companies for dealing with overseas on-line gambling businesses; the federal government raided medical marijuana facilities in Southern California. A particularly silly example from 2003 was called “Operation Pipe Dream” in which 2,000 law enforcement officials spent twelve million dollars to arrest 55 people (including Canadian citizen Tommy Chong) for selling glass-blown bongs over the internet. When enforcing federal law, the Justice Department or any other federal department or agency will make choices about what is important, and what is not important. This has always been true—what has changed is the number of policy areas that Congress has made the executive branch responsible for.

IV. The Veto Power and The President’s role in the Legislative Process: Formal Powers and Political Possibilities.↑

Independent policy-making by the President raises some important Constitutional questions; but what about role played by the President in the legislative process? There are some scholars who argue that, just as the Framers did not anticipate the extravagance of modern political campaigning, or the role of the President as “representative in chief,” the Framers of the Constitution did not anticipate that the President would play a leading role in setting the legislative agenda. According to Presidential scholar Richard Ellis, the Framers thought that Congress would be the engine of political change, while the President would be the brake.¹⁶ In response to this claim, one could argue that the Constitution tells us very little about who should lead or who should follow in the political process. What the Constitution does do is assign powers, and it assigns crucial legislative powers to the President—or rather, it assigns a crucial legislative power to the Presidency, a power which enables all Presidents to act as “legislator in Chief” as well as leader of the executive branch. True, that major legislative power of the President is the power to veto laws, and that most certainly looks like a “break” as opposed to an engine. The veto power, however, makes the President the single most important individual in the entire legislative process. If the President does not want a law to pass, then it is very difficult for Congress to pass it. Is it surprising, then, that Presidents have made use of this power to influence the legislative process as a whole? We should also note that the power can be effective as a tool without being used directly—the threat of a veto is often just as effective as the veto itself, though obviously more difficult to count.

It is true that different Presidents have chosen to use the veto power in very different ways. According to some scholars, Presidents in the early 19th century were reluctant to use the veto power, except in those instances where they thought a proposed law was unconstitutional. There is nothing wrong with adopting this rule for using the veto power, but nothing in the Constitution requires it. Similarly, nothing in the Constitution prevents the President from trying to influence and guide Congress—and there are reasons to think that, from an institutional perspective, Presidential leadership makes a considerable amount of sense. The President is the only national representative; he or she is the only figure endorsed by political parties and the public as a whole. Someone has to play an agenda setting role in the legislative process—why not the one genuinely national official, the one person whose constituency is the entire nation?

The powers of the President in the legislative process are carefully defined, but the role played by the President is subject to change— and the changes that have occurred have all been compatible with the general structure of the Constitution.¹⁷ The first Presidents exercised their power cautiously, which was surely a consequence of the widespread distrust of executive power, and widespread concern that the new institution of the Presidency would turn into an American monarchy. President Washington was particularly cautious in his use of the veto power—he exercised it only twice, both times in his last year of office. Washington’s first veto was applied to an apportionment¹⁸ bill that Thomas Jefferson thought unconstitutional; Jefferson advised Washington to veto it on those grounds, but also on the grounds that failure to exercise the power at all during his Presidency would make it difficult for future Presidents to employ the veto power. This makes sense to Canadians—consider, for instance, the fate of federal disallowance or the “notwithstanding clause” within the Canadian Constitutional system. Washington was cautious in other ways as well, in that he tried to make his cabinet reflect the political divisions that existed within the legislative branch and the nation as a whole. It is somewhat amazing that both Jefferson and Hamilton sat in Washington’s cabinet—the meetings must have been quite interesting. Most President have not been as bi-partisan in making cabinet appointments—but much like the veto power, the Constitution only gives the President the power to appoint executive branch officials—it does not give any instruction about how the power should be used.

Having noted the presence of Alexander Hamilton in the executive branch, we should point out that, in many ways, he was the “effective” President and the effective leader of the Federalists during the first two Presidential administrations under the Constitution. Alexander Hamilton was in no ways hesitant about trying to shape the law-making process. As in the case of the financial crisis of 2008, many members of Congress lacked familiarity with the details of finance, and they were willing to defer to Hamilton’s expertise—for instance, his proposals for re-establishing the nation’s credit were adopted with very little change.

Jefferson, Madison, and their Republican allies were not pleased by Hamilton’s influence within the halls of Congress, and to some extent this was connected to their anti-executive bias. Jefferson provides an example of a “hidden hand”¹⁹ President, a President who attempts to direct Congress without overwhelming it. Nevertheless, almost every important piece of legislation passed during the Jefferson administration originated with the Jefferson administration itself—though very much in contrast with modern Presidents, Jefferson often attempted conceal his role in the legislative process. In retrospect this seems rather silly—burning notes and letters and so on—especially given that department heads in the Jefferson administration were quite open about their interactions with Congress. Thus, while the Jeffersonian Democrats may have, in theory, supported the idea of the President as a “clerk in chief,” in practice Thomas Jefferson was quite willing to set the Congressional agenda.

Given the role played by Jefferson and Hamilton in leading the legislative process, how did anyone ever acquire the idea that there was something unusual or strange about Presidents and executive branch officials playing a role in the legislative process? Jefferson’s immediate followers were simply less adept at leading the legislative process, not least because, during the Presidency of James Madison, charismatic political leaders were emerging within Congress, men such as Speaker of the House Henry Clay and others like him, legislators who were extremely jealous of the institutional prerogatives of Congress. Madison also suffered from Congressional domination of the Presidential nomination process. Many of his cabinet secretaries refused to obey his instructions to contact Congress about various legislative measures, largely because they wished to curry favour with key Congressional legislators in the hopes of advancing their own Presidential aspirations. Faced with a strong Speaker of the House, it was difficult for Madison and Monroe to set the political agenda—but other Presidents, even in the early 19th century, would have more success. The precise role played by Presidents in the legislative process depended upon circumstances and personality, not the structure of the Constitution. It is true that the Whig party of the 19th century was firmly dedicated to the proposition that the executive should be subordinate to Congress—but this was a political theory, not a matter of constitutional doctrine.

What did change, over time, was the ability of Presidents to influence the legislative process by attempting to mobilize public opinion. By the beginning of the 20th century, President Theodore Roosevelt was able to use the so-called “bully pulpit” to mobilize public opinion because he had access to communication and transportation technology—mass newspapers, railroads, and so forth—that made it far easier to communicate with the mass public. Had the same technologies been available to Andrew Jackson or Abraham Lincoln, they would have made use of them as well. The power of the President to lead the legislative process was certainly part of the new Progressive orientation that was influencing both parties at the beginning of the twentieth century, but this was in many ways just the resurrection of Hamiltonianism—and indeed, Woodrow Wilson shared Hamilton’s enthusiasm for parliamentary forms of government.

Presidents have often been willing to engage in “legislative leadership” throughout American history; there is nothing unusual or unprecedented or imperial about it. However, we should be careful to avoid the opposite mistake—the mistake of assuming that leading the legislature is easy, or that leading the legislature is the same thing as dominating it. The height of executive domination of the legislative process occurred during the first years, in fact the first 100 days, of Franklin Delano Roosevelt’s first term of office, which began in 1933. Under the near emergency conditions of the Great Depression, it was indeed possible for executive branch experts to craft detailed legislation and expect to have it passed with little interference. Those circumstances are obviously incredibly difficult to repeat—and in many ways, Roosevelt lost his ability to pursue an aggressive agenda after the 1938 mid-terms, if not earlier. Even when the executive branch plays a role in initiating a legislative project, this does not mean that they will be able to control the details of the final product.²⁰

As we have seen, the role played by the President as “representative in chief” and “legislator in chief” are consistent with the Constitutional structure. Some of the main features that we associate with the modern Presidency—the notion that the President embodies the will of the nation, the notion that the President should at least have some sort of legislative agenda—are closely connected to the institutional features created by the Constitution. The Constitution makes the President the only nationally elected figure; this institutional feature interacts with modern communications technology in sometimes surprising ways, and Presidential primaries may not be the best way of selecting the chief executive, but it is the Constitution which grounds the President’s public role. The veto power makes the President the single most important figure in the legislative process—they may choose to use it, or not use it, to shape how the legislative process proceeds. Over the course of American history, about 2500 bills have been vetoed, and only 110 have been overridden. Given this immense power, the President has the potential to have significant influence. In addition, the Constitution seems to direct the President to play a role in the legislative process: Article II, Section Three makes it a constitutional duty of the President to provide Congress with “Information on the state of the Union, and to make Recommendations that he judges necessary and expedient.” When we consider the formal powers of the President in the legislative process, as well as the national constituency established by the practice of American constitutionalism, it is not surprising that Presidents have played a major role in setting the legislative agenda for Congress.

It is thus fully consistent with the text and structure of the Constitution for the President to play a major role in leading and influencing the legislative process. What is more controversial, however, is the power of the President to change major public policies unilaterally, without first obtaining the consent of Congress. Ironically, the problem is created by Congress itself, because the ability of the President to change policy unilaterally depends upon the willingness of Congress to delegate legislative power to the executive branch. Insofar as the public has come to expect the federal government to address anything and everything, this problem is unavoidable—the problem of the “imperial Presidency” in domestic politics, the unilateral power to alter policy based upon broad delegations of legislative power from Congress to the executive branch If you want the federal government to concern itself with all areas of policy, then you must accept a more powerful Presidency and a more powerful executive branch. The Presidency has become more imperial, because that is what the public seems to expect.²¹.

While the Presidency as a formal institution has changed very little, other aspects of American government have changed enormously. Those changes have led to an increasingly powerful President; the changed institutional environment of the modern era has created an amenable evolutionary niche for the constitutional Presidency. Under modern conditions, the Presidency is like a rabbit in Australia: the conditions are perfect for expansion. We can only answer this question by considering in a little more detail how Presidential power has been exercised in historical time. Has the formal institution changed, or has the Presidency simply responded to changed circumstances?

V. The Political Presidency and the Progressive Presidency↑

From the very beginning, Presidents asserted and established their authority to control the executive branch, play a leading role in foreign policy, and developed their role in domestic policy as party leaders in the public realm and in the legislative realm. From the election of Thomas Jefferson in 1800, the Presidency became fully integrated into the political system– in the sense that “the President” was not above the fray of the partisan bar brawl of American political life. Presidents were not merely executors of legislative will; they were party leaders who attempted to shape political life. Yet the politicization of the President also put constraints on Presidential power. The parties who selected and elected Presidents were also concerned with the prerogatives of Congress, as well as the jurisdictional prerogatives of state governments.

Thus many aspects of the Presidency that are regarded as “modern”– the President’s role in the legislative process, the President’s role as a leader of his party, and the President’s symbolic role as “leader of the nation”– were present, if in embryonic form, throughout the 19th century. If there is such a thing as a “modern Presidency”– a Presidency that is, as a political institution, fundamentally different from the Presidency created by the Constitution — it is rooted in a change in the form of law, at both the Constitutional and statutory level. The modern Presidency– the Presidency that developed in the 20th century– is based upon the idea that modern conditions have created a kind of permanent state of exception, one that can only be addressed through a more flexible understanding of the nature of law and legality. Once the character of law changes, once Congress delegates legislative power to the executive branch, then you are truly dealing with an entirely different political system. The modern state “institutionalizes” Presidential discretion and even Presidential prerogative, to a degree that is entirely unprecedented. The exercise of delegated legislative power, unforeseen by the Constitution, is the root of the “modern Presidency.”

Yet if the distinctive feature of the “modern Presidency” is the exercise of delegated legislative power, this actually helps us to understand and challenge the claim that the 19th century was a “legislative epoch” or an era of Congressional dominance. In the 19th century, political parties (officials and legislators at the local, state, and national level) played a central role in Presidential selection, and their main objective was to select Presidents who would respect the prerogatives of state governments and the national legislative branch. Yet the major parties also wanted to limit the reach of Congress– this was the era of decentralized governance. Thus the appearance of Presidential “weakness” in the 19th century is just a consequence of a general belief in limited national power. Indeed, 19th century Presidents often used the veto power to limit the extension of national power (e.g. James Madison and Andrew Jackson both objected to expansive understandings of national power to fund internal improvements.) It is true that 19th century Presidents did not have the massive public relations apparatus that they do today– but how could they, given the state of technological development at the time? Had modern communications technology been available, there is little doubt that ambitious Presidents such as Jackson and Lincoln would have used every possible aspect of modern communications technology to advance their political agenda.

The institutional powers of the President show a great deal of continuity. Presidents have always had the power to lead, to shape policy through agenda setting and the veto power, and to exercise discretionary power (particularly during times of war.) What really changed in the 20th century was not the Presidency as an institution, but the scope of national government, the nature of congressional lawmaking, and the technological changes which allowed Presidents to appeal to the public more directly. The forms of the Presidency did not change. Federalism changed, and Congressional lawmaking changed– and this made the “old” Presidency much more formidable.

At the beginning of the 20th century, the desire for change in the national government was manifested in the Progressive movement. Progressives thought that the existing constitutional schema, and the political practices based upon the underlying structure of the Constitution, needlessly hampered executive power. Some Progressives, such as Woodrow Wilson when he was a mere political scientist at Princeton, were openly critical of the Constitution itself; other progressive Presidents, such as Theodore Roosevelt, thought that many if not all the broad goals of Progressivism could be achieved within the existing constitutional order. What was needed was a change in emphasis, not really a change in institutions. We can think of the change initiated by Teddy Roosevelt in the following way: while American Presidents had acted as leaders in times of war and crisis, Roosevelt thought that Presidents should play a role as public leaders at all times. In sum, progressives thought that policy making in the American system was too decentralized, too parochial, too corrupt, and too deferential to state party organizations.

Presidential attempts to influence Congress were not unprecedented, but the changed technological circumstances that enabled Presidents to appeal directly to the public were in some ways novel. For instance, Teddy Roosevelt, a Republican but (nevertheless) the first “Progressive” President, attempted to promote a variety of economic regulation policies under the rubric of the “New Nationalism.” The Hepburn Act of 1906 was one of the key elements of the New Nationalism; it aimed to give the national government increased power to set railroad rates. When the Bill became stalled in the Senate, T.R. made trips around the country trying to directly mobilize public opinion in order to overcome the resistance of recalcitrant Senators. In other words, T.R. was trying to be a national leader in legislative politics and not merely the Chief Executive. As we know, previous Presidents had attempted to act as party leaders, and there is certainly constitutional warrant for Presidential influence in the legislative process. But T.R. appealed directly to public opinion to create political pressure on Congress; he did not accept subordination to his party, and this was something relatively new, at least in regards to the exercise of Presidential power during peace time. Roosevelt was introducing a new dynamic into American political life, one that is so familiar to us that we have a hard time even imagining why it might have been considered unusual. Woodrow Wilson continued this tradition of direct public appeal; for instance, he was the first President to make regular uses of press conferences in order to shape public opinion, or least to influence it.

Members of Congress did not always accept that this growth of Presidential influence was inevitable. Conservatives argued that Presidents such as T.R. and W.W. were trying to undermine the Constitutional system through “plebiscitary politics”. A plebiscite is direct vote in which the entire electorate is invited to accept or refuse a proposal. Conservatives argued that the new practices of public leadership were replacing American Constitutional forms with “direct democracy” (under the supervision of Presidential leadership.)

One can sympathize with the concerns of conservatives. Yet the novelty of Presidential leadership through public opinion was not a result of Constitutional innovation. The new mode of Presidential leadership was a consequence of technological changes, changes that made transportation and communication easier. Presidential leadership of public opinion was also a consequence of the declining power of party organizations. The long, slow process of civil service reform removed one of the most important tools of party power—Presidents were denied the ability to reward Senators and Representatives through the old “spoils system,” and this made it more necessary for Presidents to seek out other sources of influence. In addition, the rise of direct primaries weakened the ability of parties to constrain individual legislators. Presidential leadership of the legislative process, and attempts by Presidents to shape the legislative process and public opinion can thus be understood as a response to changed institutional and technological circumstances, not as a re-ordering of the Constitutional system.

Institutional criticisms of the Presidency tend to veer from the left wing to right wing of the political spectrum, depending upon which party happens to control the office of the Presidency. During the Bush Administration, we heard much talk about the rule of law in relation to foreign affairs; the chorus of complaint from the left has diminished since President Obama took office, though the right began singing about the Imperial Presidency in both domestic and foreign affairs as soon as President Obama took office.²² Part of the problem here is that the main mechanism for restraining the President is Congress itself, and Congress often lacks the will to restrain the President, particularly in emergencies. Perhaps the public should be blamed as well. Whether in regards to the conduct of foreign affairs, or the implementation of many aspects of domestic policy, the norms of the rule of the law have been violated, often in very similar ways, by both the Bush Administration and the Obama Administration. The unfortunate fact is that people often prefer the immediate results of being ruled by discretion, and are not capable of discerning the long-term consequences of evading the rule of law. Caesar won the love of the people, after all.²³

The institution of the Presidency. even in modern times is, in most ways, a logical outgrowth of the formal powers granted to the President by the Constitution. The “Modern Presidency” thesis suggests that the role of the President as a) leader of public opinion b) leader of the legislative process c) manager of a massive, discretionary policy apparatus were things that developed over time, and involve fundamental departures from the Constitutional order as originally conceived, and as practised for much of American history. Some scholars think that the emergence of the modern Presidency was unavoidable; some think it deplorable, and would prefer a return to a more “Congress-centered” polity; but the advocates of the “modern” theory of the modern Presidency all believe that a fundamental or qualitative change in the institution of the Presidency occurred over time.

The alternative argument is that the powers the Modern Presidency are closely tied to the formal institutions or rules created by the Constitution. Form has determined the content, to some degree; the character of the Presidency is still shaped by the Constitution itself. The Modern Presidency seems distinct from the Constitutional Presidency because of changes in character of law and the policy making process, but these changes have more to do with Congress and federalism than with the institution of the Presidency.

VI. Congress, the Delegation of Legislative Power, and the New Institutional Resources of the President↑

There is nothing completely new or particularly modern about Presidents attempting to shape the legislative process, even through appeals to public opinion. Nevertheless, there were changes that affected the Presidency, changes that created durable shifts in policy authority, or in other words, political development. The most fundamental change in the Presidency as an institution was the direct power of Presidents to shape public policy, a consequence of the “delegation of legislative power” to the President, which was itself the consequence of the expanded policy authority of the national government.

Though the process had begun earlier, The New Deal era established “the modern presidency ” in its fully developed form in the 1930s and 1940s. We need not linger now on the obvious accomplishments of F.D.R.– such as his success as a war-time leader, or his success in establishing the foundation of the modern American welfare state– or the more controversial aspects of his presidency, such as the still disputed question of the immediate economic impact of the New Deal. What we are concerned with here is how the New Deal era shaped the institution of the Presidency.

The expansion of federal power under FDR had some precedents, but the path to the “modern Presidency” was not direct. President Wilson and the first President Roosevelt helped establish that the President represented the public will; modern communications technology added to this process by providing a pulpit for Presidential communication. Progressives in the early 20th century had also articulated a new national policy agenda that would require a significant increase in Presidential power. The Republican Presidents of the 1920s retreated from the more expansive notion of Presidential power and leadership that had characterized President Wilson’s administration during the First World War. Harding, Coolidge, and Hoover tended to defer to their party, they tended to defer to Congress, and they generally refrained from attempts to mobilize public opinion. However, the crisis of the Great Depression would cause the pendulum to swing in the direction of Presidential power– economic disaster made the public willing to accept a new kind of experimentation in governance.

Insofar as there is a “modern Presidency,” it was created by FDR (and the Democratic Party) as part of the New Deal. Some of these changes were extension of the President’s traditional roles (in setting the legislative agenda, for instance.) Some changes were ambiguous, such as the relationship between the Presidents and their political parties. In the 19th century, Presidents were to a great extent the creatures of their parties; successful candidates appealed to the local, state, and congressional party organizations. FDR attempted– with only limited success– to directly challenge conservative Democrats who opposed or criticized aspects of the New Deal, and this descent into the field of Congressional elections struck many observers as unusual. Yet even here, there were political precedents. Transformational or “reconstructive”²⁴ Presidents such as Jackson and Lincoln reformed the party system by bringing in new voters, or even re-shaping the dividing lines between parties.

Yet it is important to see that there were important institutional developments that occurred in the 20th century– that is, enduring shifts in how policy is made. In terms of the policy process, there was a quantitative shift in the President’s role in the legislative process, particularly (though not only) in regards to budgeting. But the creation of the national administrative state would create a qualitative shift in the nature of Presidential power as well. The new American state gave the President increased power to unilaterally shape policy, to unilaterally alter, amend, and abrogate the laws that govern American society.

The most significant source of experimentation in governance came from the delegation of legislative power to the executive branch. The idea here is rather simple: economic crises are like military crises; they both justify a more flexible approach to standards of legality. The size and complexity of the task of saving capitalism was not something that could occur through “laws” as they are normally understood; new “laws” must give greater discretion to the executive branch, because many of the policies themselves will be experimental in nature. The laws regulating industry under the National Industrial Recovery Act (one of FDR’s earliest policy initiatives), for instance, did not create specific rules of general application; rather, the law empowered the executive branch to work with the private sector to create codes of competition. The Supreme Court was not willing to endorse all aspects of policy experimentation; in the case of Schecter Poultry Corporation v. the United States, a unanimous Supreme Court struck down a code regulating the sale of chickens. The broader implication of the decision was that Congress cannot simply pass a law that states “please go out and do good.” Yet with suitable adjustments, and a suitable number of new appointees on the Supreme Court, Congress was able to craft laws that, while not exactly indeterminate, nevertheless gave considerable discretionary power to the executive branch.

A great deal follows from Congress’ willingness to delegate legislative power to the executive branch. Most importantly, the President becomes responsible for a vast new array of policies and policy choices. In addition, the President’s traditional role in guiding the legislative agenda becomes more complex– the limited national agenda of the 19th century was replaced by the ideal of a “second bill of rights,” economic security and prosperity for all; providing political solutions to these problems required the Presidency to develop a more extensive array of policy and budgetary experts. At the same time, the President’s duty as Commander in Chief and the prime mover in foreign policy became exceedingly complex. In addition to the old responsibilities — as party leader, public mobilizer, agenda setter, and commander in chief– the post-New Deal Presidents must oversee a massive bureaucratic apparatus that is responsible for not only implementing policy, but also responsible for the creation of public policy. If the Presidency has changed in a fundamental way, it has been because of Congressional decisions to shift legislative power to the executive branch.

Given the shift of legislative power to the executive branch, the Presidential appointment process becomes a crucial instrument for policy making. Executive officials who have final decision making authority over budgetary programs, administering policy, promulgating rules and regulations that are binding on the government or the public must receive confirmation by Senate. The Constitution allows Congress to create inferior offices that can be appointed by the President, courts, and department heads; these inferior offices are distinct from federal employees in the Civil Service, though it is assumed that, like civil servants, they lack genuine policy making power) In addition, Presidents use over 4000 political appointees to manage cabinet departments and other federal agencies.

In the modern state, personnel is policy. If laws grant considerable discretion, then the meaning of law will depend upon who has been tasked with “enforcing” the law. For instance, the National Labor Relations Board (whose main role is to adjudicate disputes between labour and management under the National Labour relations act) will come to different conclusions in complex cases, depending upon the ideologies and partisan affiliation of its appointed commissioners. . Different management choices will lead to very different policy outcomes as well. Consider the example of the Federal Emergency Management Agency. President Clinton allowed the agency to act in a more proactive manner (e.g. by buying out property on flood plains), while the Bush II administration placed much tighter controls over FEMA. Arguably, the less proactive FEMA of the Bush years was unable to anticipate or ameliorate the disasters of Hurricane Katrina in New Orleans…

So-called “policy czars” have become a prominent part of modern Presidential administration. A policy czar is anexecutive branch official; not confirmed by the Senate, who exercises final decision making authority over budgetary programs, administering policy, and promulgating rules, regulations, and other orders. The Obama administration produced a veritable flock of czars– urban affairs czars, car czars, health policy czars, infotech czars, and so on. The unilateral creation and modification of offices without legislative approval is a key device for shaping modern policy, and this tool has been used by all Presidents since FDR. The basic problem, however, is that ultimate policy making authority should rest with officials who have been appointed by Congress, and who are ultimately responsible to them.

Policy czars are only one part of the “institutional Presidency” that has developed in the 20th century in order to help oversee the President’s expanded responsibilities. I want to describe two additional elements of the Presidential administrative apparatus: the Executive Office of the Presidency and the Office of Management and Budget, or OMB. The central institution of the modern presidency is the Executive Office of the Presidency. The EOP was created by the Executive Re-Organization Act of 1939, and its purpose was to increase the legislative and management resources of the President. Some scholars have argued that the EOP was meant to replace the party-dominated legislative process in Congress. This is true, but some scholars make an even stronger claim: the EOP not only increased Presidential power in relationship to Congress but actually allowed the Presidency as an institution to replace some of the traditional functions of political parties. The EOP made it easier to for the President to rule, whether this involved the formulation of policies, communications with interest groups, communication with the public, control and oversight of the executive branch, and so on. The key thing to note is this: as the President is delegated more legislative power, and as the scope of national policy authority expands, the President also begins to develop new resources to guide the legislative process and to oversee the executive branch.

The most important recurring role of the President in the legislative process is that of “Accountant in Chief” in the budgetary process, and while this is clearly an extension of the President’s legislative power (e.g. the President plays a role in budgeting, because the President can veto budgeting decisions) the role of the President in this process has become more institutionalized over time. By “institutionalized,” I simply mean that the President has been granted the resources to develop budgetary proposals, and Congress expects the President to play a leading role in this area.

In the 19th century, Congress controlled federal spending, down to the minutest detail. For example, an 1871 appropriations act for the Department of Agriculture specified that $1500 would be spent for the upkeep of horses, $250 for subscriptions to periodicals, $100 for the collection of minerals and ores, $25 petty cash, etc. In 1910, President Taft asked Congress for the power to create an “executive budget,” in order to co-ordinate spending and revenue. The response of Speaker of the House “Uncle” Joe Cannon was instructive: he refused Taft’s request, and even suggested that the President cannot create any budget documents without specific authorization. This would start to change in the 1920s. In 1921, Congress agreed to create a “Bureau of the Budget” (in the Treasury Department) to create a unified executive budget; Presidents Harding and Coolidge asserted power over the budget process by requiring “BoB” approval for all agency budget requests. Under FDR, the “clearance” function of Bureau of the Budget expanded. All legislative proposals, executive orders, “enrolled” bills (bills that have passed both the House and Senate) were vetted by the Bureau of the Budget. Perhaps most importantly, the Bureau of the Budget would become part of the executive office of the Presidency.

Over time, the Bureau of the Budget (renamed the “Office of Management and the Budget,” or OMB in1970) continued to increase its analytical capacity; it also become ever more closely tied to the goals of individual Presidents, whether in regards to the budget or monitoring and guiding the sprawling federal bureaucracy. Congress responded by creating the Congressional Budget Office, which would function as an “OMB for Congress,” allowing the legislative branch to counter-Presidential power by creating a unified Congressional budget. The essential idea here is that the process of creating a national budget involves dueling bureaucracies; as the Executive branch has expanded its capacity oversee the big fiscal picture, so too has Congress. Senator Patrick Moynihan called this the “Iron Law of Emulation”: “Whenever any branch of government acquires a new technique which enhances its power in relation to other branches, that technique will soon be adopted by the other branches as well.” Budgetary processes reflect ongoing conflicts between the Presidency and Congress, conflicts which are certainly on display now.

The role of Presidential leadership in the budgeting process is sometimes used as evidence of the fundamental transformation of Presidential-Congressional relations in the modern era. Yet this is another example of how the scope of government has changed, but the institutional relationships remain constant. Government in the 19th century was not very complex; there was no need for a unified budget, even within Congress. There is certainly justification for the President, as the only truly national representative, to take a leading role in setting overall national spending priorities. Congress, in the end, can either take Presidential leadership, or leave it; the President cannot really “dominate” the budgeting process, and Presidents do not distort the process by being involved.

So how modern is the Presidency? That is, has the Presidency as an institution changed in a fundamental way? We can answer with a highly qualified “no.” Most aspects of the modern presidency are indeed linked to the formal powers of the office. The President has always played a leading role in foreign policy, and the President has always been the head of the executive branch; there has been no real qualitative changes here (though there have been some changes in the bureaucracy that have actually limited the executive power of the President in the modern era.) The President’s role in the legislative process is an outgrowth of his constitutional powers. The President is the only national representative; the veto power gives him a formal role in the legislative process; this creates the basis for the “plebiscitary Presidency,” (sometime called “going public”) the attempt to shape legislative outcomes by mobilizing public opinion. The effectiveness of this tactic has expanded, but it required no formal shifts of power. Similarly, the President’s role in the budgetary process has expanded, but that is ultimately traceable to the formal powers of the President and to his role as representative of the nation. The President’s relationship to his party has changed, but of course that relationship has nothing to do with the Constitution; the increasing independence of the President from his party is consequential, to be sure, but this occurs largely because of changes within political parties.

So what has changed? The President has an increased capacity to exercise old powers (in the legislative process, as a party leader, and in the public arena) and the President has increased power and discretion as an administrator. Based upon the delegation of legislative power to the executive branch, the increased use of unilateral executive orders, and the recurring cycle of Congressional-Presidential relations: crisis-delegation-ambivalence-response-crisis-delegation– the President has the power to alter policy directly. This is a power that has, to varying degrees, been adopted by Presidents of all political varieties. One way to think about it is this: the actions of the Environmental Protection Agency (enforcement decisions, rule making etc.) will differ, depending upon who wins Presidential elections. Laws change– in terms of how they are enforced, and in terms of the “rules” under the authority of so-called laws– depending upon who is enforcing those laws. This is the most “modern” aspect of the Presidency– the power to change the meaning of law, and even to create new law, independently of Congress.

Congress is particularly willing to abandon its own institutional prerogatives and submit to Presidential discretion during times of crisis. During a crisis, politicians sense that the normal legislative process is insufficient, whether the crisis involves war, a terrorist attack, or an economic crisis that threatens established financial institutions. In crises, politicians of all political ideologies tend to become Presidentialists, as the response of Democrats and Republicans to the 2008 financial crisis demonstrated: “We can’t allow established financial institutions to collapse! Why, then other institutions that didn’t make terrible decisions might emerge to replace them! That would create the impression that people should suffer the consequences of their actions.” In a crisis situation, Congress becomes even more willing than usual to allow the President to “solve the problem” without the interference of law.

In dealing with the financial crisis, the G.W. Bush administration initially requested $700 billion to bail out the financial industry with few conditions attached. The House and Senate Finance Committees, chaired by Representative Barney Frank and Senator Chris Dodd, cobbled together a 400 page bill that would be the basis for TARP, or the “Troubled Asset Relief Program.” House Republicans opposed the bill decisively, but so did 90 Democrats—this was followed by a collapse in the stock market, and that frightened a sufficient number of legislators into switching their votes. Thus the gambling classes were given their welfare check—a good thing too, because otherwise we would have had eight years of anemic growth, declining labour force participation, massive deficits, etc. Please note my sarcasm.

In the end, it did not matter that Dodd and Frank stitched together a 400 page bill to cabin executive discretion. In the hands of the Obama administration, the law meant anything and everything; a law designed to bail out the financial industry was also used to bailout the auto industry (or rather, one of the most mismanaged parts of the auto industry, General Motors.) That a McCain administration would have done the same thing does not make it any more acceptable from a constitutional perspective. The auto-bailout made little economic sense either²⁵, though it made a great deal of political sense, as the short-term effects GM disappearing would have clearly influenced electoral politics in the mid-west.

President Obama created a “car czar” in order to oversee the federal government’s relationship to the auto industry. He chose the improbably named Steven Rattner, a former investment banker, for the position of czar. What did Rattner do as the car czar, or rather, the Chief Adviser to the Treasury Department on the Automobile Industry? He distributed billions to car companies; he made decisions regarding closing of factories and auto dealerships; he re-wrote the relationships between auto companies, unions, and financiers. The legal authority for these decisions was slim to non-existent, as the creation of TARP involved little or no deliberation of any kind, and no discussion of whether it was related to the auto industry. The power exercised under TARP was not subject to any appeals process; judicial oversight was eliminated. The Congressional Oversight Panel even issued reports stating that TARP did not authorize assistance to the automobile industry. But Rattner was not particularly concerned about this: “The auto rescue succeeded in no small part because we did not have to deal with Congress…. If the task force had not been able to operate under the aegis of TARP, we would have been subject to endless congressional posturing, deliberating, bickering, and micromanagement, in the midst of which one or more of the troubled companies under our care would have gone bankrupt.” In other words: the ends justify the means; in a time of crisis, we need decisive authority, not deliberation. Mr. Rattner himself was later prosecuted for various financial misdeeds by New York Attorney General Andrew Cuomo, so this is one czar who did not have too much time to order the serfs around. (He had to pay a 10 million dollar penalty for his actions, another 6 million to the SEC).²⁶

There are many other problems that emerge when Presidents choose to use policy czars instead of normal appointees. Czars do not undergo the regular background check that accompanies the Senate appointment process, which creates the potential for employing criminals like Rattner within the executive branch. As mentioned above, czars differ from other appointees because they can refuse to testify before Congress. For example environmental policy czar Carol Browner, who exercised more power in directing the EPA during the first two years of the Obama administration than did EPA administrator Lisa Jackson. Another problem with the 18 “czars” of the Obama administration is that, despite not being appointed by the Senate, they oversaw the use of Congressionally appointed funds.

But, to use the immortal words of then Secretary of State Hillary Clinton, at this point what difference does it all make? So we have un-confirmed individuals overseeing vast sectors of the economy, exercising authority and spending money without any legal authority? So what? This conclusion is based upon a naïve view of politics: The Rattner-esque view of the world is that experts are experts, they deserve to rule, and therefore we should give lots of power to soon to be indicted former investment bankers, because they will know how to fix problems. In other words, the discretionary powers of the modern Presidency are usually most appealing to those who view politics from a hierarchical perspective. Yet as we know from reading Federalist Paper Number 10, one person’s “fix” is another person’s “problem;” politics should be rooted in deliberation, based upon the institutional representation of conflicting interests and opposing viewpoints. The hierarchical view of politics, which places expertise above individual freedom or democratic deliberation, only makes sense if politics is constituted by a series of distinct “problems” that lead to correct or incorrect answers. Madison’ view was that politics is constituted by a set of conflicts amongst competing interests—a perspective that is much less friendly to independent Presidential power, or government by czar.

In fairness to President Obama, the root of the problem is not the Presidency, but Congress

The Presidency hasn’t change—or if it has changed, it is because Congress has abdicated its own powers. Congress could stop the President from creating new offices; it could stop the President from circumventing the appointment process and creating policy outside of the boundaries of the law. Congress chooses not to do this. Is Congressional delegation of power and czar-based policy making justified on the basis of efficiency? The Constitution is based upon the premise that efficiency is not the key goal of politics; the desirability of efficiency depends upon it end or goal, but people will often disagree upon those goals. If you are tempted to think that concentrated power is a good thing because of efficiency, you should always consider whether you will continue to hold those beliefs when people you disagree with hold power, and claim that they need to act independently for the common good.

VII. Presidential Power in Political Time↑

I have given you some indication of the basis of the President’s unilateral power to shape law and policy, some of which is rooted in the formal powers of the President, some of which is rooted in the delegation of legislative power to the executive branch. Let us now consider again the role of the President as “legislator in chief,” in a very general sense. The role of the President in the legislative process is closely related to the internal operation of Congress, and the relationship between political parties and the electoral environment. The modern President faces increased expectations as a “policy leader” though we should keep in mind that Presidents have often been expected to set the “legislative agenda” even if Congress will not always accept Presidential leadership. In many cases, Presidents are not only expected to set an agenda, but they are actually expected to create the legislative proposals themselves. Between 1933-1940, for instance, only 2 of the 24 most significant enactments were actually created by Congress. The New Deal era was, as the social scientists say, an outlier. By the late 20th century, the process had become more “collaborative”; 1/2 of bills are jointly developed, 1/4 developed by Congress. 1/4 developed by the executive branch. For obvious reasons, the President’s proposals are given special treatment in the legislative process; 90% of proposals get a committee hearing; 80% get serious consideration in committee. But the potential to dominate the Congressional agenda does NOT mean that Presidents always control the outcomes. Modern American Presidents since FDR have an approximately 50% success rate for major legislative proposals.

The power of Presidents in the legislative sphere depends upon their relation to the broader political system and the even broader socio-political environment. This theory (based on the work of Stephen Skowronek, Yale) is an attempt to account for the general kinds of political possibilities that are available to Presidents– it is an alternative to the highly individualistic approach to Presidential power, which tends to emphasize the personal qualities, intelligence, and psycho-history of Presidential candidates.²⁷ The main idea here is that Presidents, as individuals, are often constrained by their circumstances– a plausible viewpoint, one that I am in general agreement with, though it is possible to take this too far.

The power of Presidents depends upon their relationship with the existing “regime;” what is meant by this? A regime can be defined most simply as the pattern of ideas that characterize a particular period in government- regimes, in other words, are defined by public philosophy, and the level of public support for that public philosophy. So, for instance, there was a “Jeffersonian” or “Jacksonian” regime defined by its commitment to decentralized government, westward expansion, and a “truce” regarding the slavery issue; there was a New Deal regime committed to expanded federal power, the welfare state, national regulatory power, and the expansion and transformation of civil rights; there was a new regime instituted by Ronald Reagan, with a central commitment to limiting or reducing taxes, returning to constitutional originalism, limiting the scope of national regulatory power, and so on. Each regime, according to Skowronek, has a “carrier party,” a party that advances the central agenda of the regime, and a party that attempts to resist change. So, for instance, the Democratic Party of the New Deal regime was primarily responsible for the introduction of new ideas and new goals in policy; the Republican Party was the party of “change” during the Reagan regime. The power of Presidents depends upon their relationship with the regime, and the standing of the regime itself. The regime can either be vulnerable to challenge and change (the GOP in 1932, the Democratic Party in 1980) or the “regime” or “governing party” can be resilient (e.g. LBJ won election in 1964 under a resilient regime; GW Bush came to power– though just barely– under a relatively resilient GOP congressional regime in 2000.)

Table 6.2: Presidents and their Relationship with the Regime Party

Standing of Pre-Existing Regime

It is somewhat more difficult to categorize the situation of Barack Obama. In 2008, he seemed to fall squarely within the “reconstructive” category; the policies of the Reagan-Bush eras were repudiated, and the Democrats– now dominated by progressives– controlled all the elected branches of the national government. The elections of 2010 and 2012 make the picture more complicated, but the problem can be stated somewhat simply: for Skowronek, a regime is more or less equivalent to a set of ideas or a governing agenda. Thus, even if a regime is not characterized by a dominant national party or by the frequency of unified government, we can still identify what set of policy commitments are ascendant and what policy commitments represent the “minority report.” This is easiest to see when we consider the transition from Hoover to FDR (leaving aside the complexities of Hoover himself, and relying on the somewhat inaccurate picture of the pre-New Deal GOP as uniformly “laissez faire.”) The key point to remember is that a regime is a set of ideas that can still retain power, even the if “prime movers” of the regime are not in power. Thus, Eisenhower and Nixon are both part of the New Deal regime– they did not challenge its fundamental assumptions, though they surely did political battle over the details of policy.

Presidential opportunities depend upon the character of the existing regime, and the relationship of the President to that regime. Now some caveats are in order. Skowronek’s theory of regimes is obviously based on the theory of electoral re-alignments, which is in part based upon the idea that, during most 30 year cycles of American politics, there is a dominant party and a dominant set of ideas. That claim is subject to some serious challenges. Nevertheless, I think that his schema can illuminate some important aspects of Presidential power, and the ways in which Presidential is constrained by the broader political context that the President operates within.

Reconstructive Presidents: A reconstructive Presidency occurs when there is a massive transition from one regime to another, usually a situation in which the prevailing public philosophy or status quo is repudiated in a decisive election. Under these conditions, Presidents can initiate massive political changes, usually in response to crises of some kind (The Great Depression initiated FDR’s reconstruction; a decade of “stagflation” and tax revolts, as well as international setbacks, preceded the Reagan revolution) backed by an emerging regime; this does not imply that Presidents of this character always get their way (they never do; FDR never did);

Note that not all reconstructions are the same: in regards to Reagan, it took a long time for PARTISAN control of the House to reflect the broader changes in public philosophy (but as we know, partisan control does not necessarily matter for much); yet, it still makes sense to see the similarities between the Presidencies of, say, Lincoln, FDR, and Reagan

Articulation: development of existing regime commitments; this is an often difficult task, as the initial energy of the governing coalition dissipates (no longer the same sense of threat?); new developments in policy become more complicated due to internal divisions. LBJ, Bush I

Disjunction: Presidents are affiliated with a weak regime; tension emerges within political coalition; Presidential attempts to re-vivify the coalition tend to result in failure; the idea is that old regime cannot reinvent themselves. President Jimmy Carter is the best example here—he won a surprisingly close Presidential election (surprising because it was the first to occur in the wake of the Watergate scandal; the social and economic policies associated with the New Deal- Great Society era became increasingly controversial (e.g. due to late 1970s “stagflation,” (the unexpected combination of high unemployment, low economic growth and inflation), crime rates and urban disorder, etc.) President Carter had to govern in difficult times, and his greatest difficulty was keeping the Democratic coalition united as he tried to address a host of new problems. Very few were satisfied with the results– a typical experience of “disjunctive” Presidents.

Pre-Emption: In this situation, the President is opposed to the dominant regime. Within the American system it is of course possible for a President to be elected when they are fundamentally opposed to the governing public philosophy, or, less pretentiously, the public mood. Sometimes, this is a consequence of the personal popularity of leaders: consider the election of Dwight Eisenhower, a Republican who was President when Congress was still dominated by Democrats (for most of his term) more importantly, the basic ideas of the New Deal Democrats were still dominant

Clinton’s Presidency was similar though not identical; what he had hoped would be transformative (1992) turned out to be mistaken; the Reagan regime (that is, conservative New Right) was still resilient (1994)

The typical path for pre-emptive Presidents is as follows: they attempt to create a kind of hybrid alternative to the established regime; in other words, they engage in “third way politics” Here, the similarities between Nixon and Clinton are very interesting. Nixon proposed many policies that would be considered very left wing (guaranteed annual income, expansion of affirmative action, etc.; Clinton’s major policy successes– NAFTA, welfare reform, deficit reduction– were all conservative in character; they both worked with the governing regime

Notes↑