Presidential Power and the Constitution

By Donald Gilpin

No question is more crucial to the state of our nation, and no question is more dominant in the news media, than the question of presidential power. Who makes the decisions that determine the fate of our country, its people, and so many others around the world? 

We pride ourselves on our democratic government, with power vested in the people themselves. From the time of the American Revolution and the founding of the United States of America, the country has rejected the idea of a king or an imperial president. “The power under the Constitution will always be in the people,” George Washington wrote in a letter to his nephew. The notion of a monarch or a dictator in the White House continues to be anathema to most Americans.

Over the centuries since the drafting of the Constitution in 1787, however, the power of the executive branch has steadily grown, even though checks and balances and the separation of powers among the three branches of government (executive, legislative, judicial) are fundamental to our system of government and to the essence of our exceptionality as a nation.

From George Washington through Thomas Jefferson, Abraham Lincoln, Franklin D. Roosevelt, and Harry Truman, up to Bill Clinton, George W. Bush, Barack Obama, and Donald Trump, presidents have frequently exercised their prerogative powers. Particularly in times of emergency, they have unilaterally acted without seeking approval of Congress to resolve disputes or manage crises, and they have justified their actions based on their reading of the Constitution and the necessity for action. Some of these unilateral presidential actions have been controversial, depending on partisan views. Many have not. 

The question of executive power and its limits under the U.S. Constitution was the topic of the 2018 Tanner Lectures on Human Values at Princeton University, held on November 28 and 29, as several of the most prominent constitutional scholars in the country gathered to wrestle with the difficult issue. The event was titled “The President Who Would Not Be King,” but if such a president ever existed, he was not mentioned in the far-ranging discussion of chief executives exercising and expanding their powers from the 18th century to the present.

Recent months have seen numerous attempts by the Oval Office to exercise prerogative powers and increasing controversy in Washington and beyond. Has the modern government, with its unilateral actions and executive orders, completely overridden the system of checks and balances and defied the intentions of the Constitution?

“Prerogative” power, the right or privilege of the president to act on his own independent judgement apart from the legislature or the people, is included and circumscribed in the Constitution, but President Trump’s notion of the chief executive’s prerogative power no doubt derives from his life experience as the head of a family-owned business, with few checks or limits on what he can do. 

Can a president simply decide that every situation, domestic or foreign, is a crisis warranting the use of prerogative powers, a presidential fiat, and unilateral action regardless of Constitutional limitations and the wishes of Congress, the courts, and the people themselves? What are the constraints on these prerogative powers? 

One effective constraint over the years, in spite of rapidly growing presidential authority, has been the power of Congress, under Article I of the Constitution, to oversee spending. The president either signs a budget approved by Congress, or he vetoes, after which Congress can attempt to override that veto. With the question of the Trump border wall, however, the president suggested that he might declare a national emergency and proceed with the building of the wall despite Congress’s explicit refusal to appropriate funds. With a Supreme Court unlikely to rein in the president’s power, the meanings of presidential prerogative and executive power seem to be expanding beyond previously recognized boundaries. 

The thought of a Democrat in the White House sometime in the future wanting to exercise similar prerogative powers to declare a national emergency and, say, ban all guns or spend billions of dollars to combat climate change, should make a concern over abuses of presidential power a bipartisan issue.

Thomas Friedman, in a January 16 New York Times op-ed, praised Supreme Court Chief Justice John Roberts for speaking out in favor of  “an independent judiciary … something we should all be thankful for.” Friedman stated that judges “should be loyal only to the Constitution and their interpretation of it,” and he warned about the kinds of governments “where the arbitrary whims of the leader or his party are the basis of all decision-making, not the rule of law, built on independent institutions.”

Trump, however, Friedman argued, “appreciates none of this. I don’t think Trump ever took civics. I don’t think he ever understood the separation of powers or the meaning of independent agencies. That’s why the shutdown doesn’t bother him. His instincts are those of a banana republic dictator.”

From left, Professors Eric Nelson, Michael McConnell, and Jeffrey Tulis  at the Tanner Lectures. (Photo courtesy of Anita Chevres Photography)

The Tanner Lectures

At the Tanner Lectures, Constitutional Law Professor Michael W. McConnell, former judge of the U.S. court of appeals for the tenth circuit, director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution, was the featured speaker both days.  He discussed “Executive Power and the Constitution” in his first lecture, with responding commentary by government professors Eric Nelson from Harvard and Jeffrey Tulis from the University of Texas at Austin. McConnell discussed “Executive Power at Home and Abroad” on the second day, with follow-up observations by law school professors Gillian Metzger from Columbia Law School and Amanda Tyler from University of California, Berkeley School of Law.

Each of the approximately 200 people, many themselves Constitutional scholars, who attended the sessions each day in Princeton University’s Friend Center was provided with a handy pocket-sized copy of the U.S. Constitution. All the speakers made frequent references to the 1787 document, and the discussion focused as much on James Madison, Charles Pinkney, George Washington, Thomas Jefferson and the Kings of England as it did on Trump, Obama, Bush, and Clinton.

McConnell set out an elaborate new framework for assessing the Constitutional legitimacy of exercising power, a new way of thinking about the relationship of the three branches of the federal government. He provided a vivid description of key moments at the Constitutional Convention and the drafting and redrafting of Article 2, which delineates presidential powers. 

“The executive Power shall be vested in a President of the United States of America,” states the first sentence of Section 1 of Article II of the document, and then in Section 3, near the end of Article II, “he shall take Care that the Laws be faithfully executed.” But between those stipulations lies much room for uncertainty and debate. 

Appointed by George W. Bush and serving as Tenth Circuit Judge from 2002 to 2009, McConnell is considered a conservative judge, but he has won wide respect in the academic community and across the political spectrum for his numerous publications on Constitutional law.  He has argued 15 cases in the Supreme Court, and in the past 10 years, his work has been cited in opinions of the Supreme Court second most often of any legal scholar.

“Our last three presidents have been unusually assertive concerning the power of the president,” McConnell noted. He cited Bush’s extreme interrogation techniques after 9/11. “Obama promised to scale back executive power,” McConnell said,” but he was no less assertive than his predecessor, maybe more so, using the pen and the phone to make public policy.” McConnell mentioned the Libya air war, environmental regulations, and suspension of immigration laws as examples of Obama’s assertion of prerogative power. 

“Trump is, at least rhetorically, more aggressive than his predecessors,” McConnell said. “He is not shy about the use of executive power.” To resolve disputes over legality, McConnell repeatedly urged a return to the text of the original document and a closer look at the proceedings at the 1787 Constitutional Convention. He noted the “uncertainty of the text of the Constitution,” in which the powers of the presidency are “radically incomplete,” unlike the powers of Congress that are much more clearly and thoroughly set forth in Article I. There are no details concerning the president’s power to make foreign policy and conduct foreign affairs.

The powers to make war and peace and to make treaties and alliances were prerogative powers held by King George III but allocated to Congress in the U.S. Constitution. The Founding Fathers wanted there to be no chance of their president becoming a military dictator or resembling a powerful king like George III. The framers, McConnell argued, had reasons for specifically enumerating certain powers; they wanted to limit those powers. 

McConnell went on to outline his framework for determining the legality of presidential actions based on whether those actions fall into the category of prerogative powers, delegated powers, or residual powers, according to the Constitution. He suggested that the Supreme Court over the past 60 years has often gone astray on this issue. 

Nelson applauded McConnell’s attempts to clarify the limits of presidential power. He argued that “the unitary executive of our Constitution, armed with extensive prerogative powers, embodies some of the core principles of the royalist constitution of the Stuart monarchs,” with the American president’s powers going beyond those of George III — not monarchy light, but monarchy plus.

A pocket-sized copy of the Constitution was distributed to everyone who attended the Tanner Lectures. (Photo courtesy of Anita Chevres Photography)

Fear of Demagoguery

Speaking next, Tulis contended that the boundaries of the powers of the three branches of federal government are fundamentally indeterminate. He called for less focus on defining powers and more focus on the structures of the three branches of government. “To limit abuses of power, we should look to Constitutional politics: agonistic struggle among the branches, in which Congress should be playing a more vigorous role,” he said. “It’s not so much a separation of powers, but separate institutions sharing powers, each involved in the business of the other two, armed with powers to contest and check abuses of power in the other branches.”

Moving quickly from the founders to the present, Tulis continued, “Demagoguery is the most worrisome pathology to fear in a democracy, and the separation of powers is the way to preclude demagoguery. We are now living in a political world in which that fear has come true.”

Acknowledging abuses of power on both sides, McConnell decried the current polarization of politics and the failure of Congress to stand up to the president. “There’s been an abdication by Congress,” he said, making the role of the judiciary crucial. “If we don’t have the Court, we have nothing, and the president is going to automatically prevail. Legalism is the only thing we have that might restrain a president who is misbehaving.”

Continuing on the second day of the Tanner Lectures, McConnell discussed a number of recent controversial examples of the exercise of presidential power. The cases involved powers — in foreign affairs, war, immigration, public lands — that, according to the Constitution, could be allocated to either the executive or the legislative branch. 

Obama issued a presidential proclamation creating a national monument of more than a million acres in Southern Utah, under the statutory authority of the Antiquities Act (1906).  Trump, after taking office, rescinded much of that action by the same sort of proclamation. These decisions required no public hearings or consultation with Congress, and were not subject to judicial review.

In a more controversial example, Trump banned entry into the U.S. by the residents of eight named foreign countries, mostly majority Muslim. The Supreme Court upheld that decision. 

On the issue of recent trade wars, McConnell questioned, “How can the president increase tariffs without going to Congress,” when the Constitution gives Congress, not the president, authority to regulate commerce with foreign nations? The answer, he said, lies in the fact that statutes passed by Congress often delegate power to the president to make exceptions. The Trade Expansion Act of 1962 in this case gives the president such power in the interests of national security. But who decides what constitutes a matter of national security? This is a question that has caused much dispute.

McConnell’s examples of executive authority clashing with Congressional statutes also included Obama’s transfer of Guantanamo detainees to the U.S., Bush-era interrogation practices, and Trump’s policy on processing asylum claims outside ports of entry.   

“Just looking at the text of the Constitution and a little bit of history, we can go a great distance towards resolving what are regarded as quite thorny and difficult separation of powers arguments of considerable importance to us today,” McConnell concluded.

Complexity and Murkiness

In her response, Metzger noted much that she admired in McConnell’s framework for assessing presidential powers, but she claimed that framework to be problematic in its simplicity. “Too much clarity about the powers of the president is a source of concern,” she said, noting complexities in the founders’ views and in the current status of the debate.

“Over time we have constructed the modern presidency in response to Congress, the courts, and practical necessity,” she added. “Not only is this process building out the presidency legitimately, it is necessary for Constitutional doctrine to speak to lived reality. We live in a world vastly different from that of the founders.”

She went on to emphasize the importance of engaging with the practical imperatives of diplomacy and the nature of foreign affairs practices over the last 230 years, noting the dominant role in foreign affairs played by the president. She added that it is essential to include historical precedent that has developed over the years as well as practical need and to “acknowledge overtly and transparently the murkiness about presidential power and its scope.”

Tyler also, in her remarks, agreed with McConnell that the Constitution was drafted with the idea of creating an executive that would not be like a king, but she noted, “It’s a more complex story.”   

She proceeded to review the history, from 17th-century English kings to present-day U.S. presidents, of leaders claiming the power to suspend the right of habeas corpus, detaining unilaterally suspected domestic enemies of the state. She mentioned Lincoln during the Civil War, Franklin D. Roosevelt during World War II, and George W. Bush during the war on terrorism, among others.

Tyler pointed out a trend in Constitutional law, “a movement away from fairly well settled understandings of how the separation of powers based on the structure of the Constitution was supposed to work toward a modern blurring of the lines of authority. And all of this has been bolstered by a judiciary that has been unwilling to police some of these longstanding assumptions or understandings.”

She continued, “By blurring the lines of accountability and allowing, or at least not policing, the expansion of executive power to fill the void of legislative inaction, the state of the modern presidency is far removed from that envisioned by those who wrote our Constitution.” 

Claiming that the problem is exacerbated by the dysfunctions of Congress, Tyler warned, “The result, I fear, is we are now left with an executive who looks a little too much like a king in the old style.”

At the Tanner Lectures were, third from right, Princeton University President Christopher L. Eisgruber, himself a constitutional law scholar; featured speakers, from left, Eric Nelson, Gillian Metzger, Amanda Tyler, Michael W. McConnell, and Jeffrey Tulis; and Tanner Committee Chair Stephen Macedo. (Photo courtesy of Anita Chevres Photography)