Donald Trump and the Overinflated Presidency

The president-elect will inherit an executive branch whose power has ballooned far beyond its constitutional bounds.

By Jeffrey Rosen

The framers of the Constitution set out to create a presidency energetic enough to lead national initiatives but constrained enough not to threaten liberty, writes Jeffrey Rosen. Illustration: Stephen Webster

In an interview in early December, Speaker of the House Paul Ryan said that President-elect Donald Trump is committed to respecting the constitutional prerogatives of Congress. “We’ve talked about…the separation of powers,” he told “60 Minutes.” “He feels very strongly, actually, that under President Obama’s watch, he stripped a lot of power away from the Constitution, away from the legislative branch of government, and we want to reset the balance of power so that [the] people and the Constitution are rightfully restored.”

If history is any guide, Mr. Ryan’s optimism is misplaced.

During the election of 1912, the Progressive candidate, Theodore Roosevelt, articulated a populist defense of virtually unchecked executive power, declaring that the president is a “steward of the people” who can do anything that the Constitution does not explicitly forbid. Roosevelt’s rival, the Republican incumbent William Howard Taft, defended a far more constrained view of executive power, holding that the president could only do what the Constitution explicitly authorized.

Ever since the presidency of Franklin D. Roosevelt, Republican and Democratic presidents have embraced Theodore Roosevelt’s view, asserting ever more expansive visions of the president’s ability to do whatever he likes without congressional approval. Both George W. Bush and Barack Obama aggressively deployed executive power to circumvent Congress, and their partisans accepted it. During his own campaign, Mr. Trump declared, “I am your voice” and “I alone can fix it.” This is not the rhetoric of a president who intends to defer to the legislative branch.

Teddy Roosevelt’s populist vision is hard to reconcile with the vision of the framers of the Constitution, who set out to create a president energetic enough to lead national initiatives but constrained enough that he would not threaten liberty. Alexander Hamilton yearned for a monarchical president, but the Constitutional Convention of 1787 designed a presidency with strikingly few enumerated powers—stronger than a state governor but much weaker than the hated tyrant King George III.

President Theodore Roosevelt—shown speaking to a crowd in Evanston, Ill., circa 1902—took an expansive view of presidential power. Photo: Getty Images

Article II of the Constitution assigns to the president a few explicit powers—command of the armed forces, a veto on legislation, the power to make appointments and treaties with the Senate’s consent—but the text doesn’t specify whether the president has any general powers beyond those specifically listed. It fell to George Washington to fill in some of the gaps—establishing, for example, the president’s power to recognize foreign governments and initiate treaty negotiations without formally consulting the Senate.

From George Washington to Abraham Lincoln, presidents were sensitive, by and large, to Congress’s constitutional prerogatives, which Congress asserted vigorously. President Washington, for instance, was concerned enough about “the insidious wiles of foreign influence” in American politics that he issued a proclamation threatening criminal prosecution of any U.S. citizen who took sides in the war pitting revolutionary France against the rest of Europe. But he also thought it important, after the fact, to persuade Congress to endorse this policy of neutrality.

When President James K. Polk moved troops to the Mexican-American border in 1846 in response to what he claimed was the emergency of a Mexican invasion, a Whig congressman from Illinois named Abraham Lincoln introduced his famous “spot” resolutions. He demanded that Polk identify the precise spot where blood had been shed, to prove it was on U.S. soil. (The resolutions earned him the nickname “Spotty Lincoln.”) Beginning in 1859, President James Buchanan repeatedly asked Congress to approve his request to deploy troops to Central America; when Congress refused, he meekly submitted.

As a wartime president himself, Lincoln authorized his generals in 1861 to suspend the writ of habeas corpus, which allows prisoners to challenge the constitutionality of their detentions. Although the Constitution gives Congress the power to suspend the writ, Congress wasn’t in session, and Lincoln felt that he needed emergency action to keep military rail lines open. But Lincoln then called Congress back into session and persuaded it to approve his suspension of habeas corpus. As President Taft would later note in a lecture on the powers of the presidency, “Congress subsequently expressly gave [Lincoln] this right, and the Supreme Court sustained his exercise of it under the act of Congress.”

Taft was a judicially minded president who would achieve his life’s ambition only after leaving the White House, when he became chief justice on the Supreme Court. Throughout his years in public life, he approached all decisions by asking whether they comported with the Constitution. Appointed governor of the Philippines in 1900, for example, Taft stopped in Japan, where the empress presented his wife Nellie with a tapestry. Always honest to a fault, Taft insisted that she return the gift, on the grounds that the Emoluments Clause of the Constitution prevented him from accepting gifts from foreign governments. Mrs. Taft eventually appealed to President William McKinley, who ruled against her husband and sided with her.

William Howard Taft, president from 1909-13, objected to Theodore Roosevelt’s sweeping conception of executive power. Photo: Everett Collection

As president from 1909 to 1913, Taft took a constitutionally constrained view of his own powers. “The thing which impresses me most is not the power I have to exercise under the Constitution, but the limitations and restrictions to which I am subject under that instrument,” he declared.

Taft was appalled in August 1910 when Theodore Roosevelt, his predecessor in the White House, delivered his famous “New Nationalism” speech in Osawatomie, Kan. In his autobiography, published in 1913, Roosevelt elaborated on what he meant in that speech by declaring that “the executive power” was “the steward of the public welfare.” Roosevelt explained, “My belief was that it was not only [the president’s] right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the law.” As he dramatically concluded, “I did not usurp power, but I did greatly broaden the use of executive power.”

Taft strongly disagreed. “The true view of the Executive functions is, as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power,” he wrote in “The President and His Powers,” published in 1916.

Although Presidents Calvin Coolidge and Herbert Hoover subsequently embraced Taft’s constitutionalist vision of the presidency, all presidents since FDR have accepted some version of Theodore Roosevelt’s vision of the president as the powerful “steward of the public welfare.” During Franklin Roosevelt’s long tenure, for example, he exercised extraordinary powers across many domains: detaining Japanese Americans in California prison camps, trying and executing accused Nazi saboteurs, disregarding U.S. neutrality by implementing the Lend-Lease program and ultimately constructing the New Deal administrative state. He did all of this, it should be noted, with the tacit or explicit approval of Congress and the Supreme Court.

When the historian Arthur Schlesinger Jr. wrote “The Imperial Presidency” in 1973, what he had in mind was the office’s further expansion during the Cold War. In confronting the Soviet Union and its allies, Schlesinger argued, presidents had asserted a range of extraconstitutional powers in foreign affairs. Because Congress had declined to push back, these powers had expanded to include domestic policy as well. President Harry Truman sent troops to Korea in 1950 without congressional authorization and two years later asserted his military powers as commander-in-chief to seize U.S. steel mills, claiming that he needed to avert a national strike that would harm the war effort.

When presidents have acted imperially without the support of Congress, the Supreme Court has tended to rebuke them. The court repudiated Truman’s attempt to seize the steel mills under his military authority. It rejected President Richard Nixon’s attempt to invoke executive privilege to resist a special prosecutor’s demands for the Watergate tapes. And the justices also rejected President George W. Bush’s attempt, after the attacks of 9/11, to designate certain citizens and noncitizens as enemy combatants, to hold them indefinitely without trial and to try them in military commissions created without congressional approval.

As a presidential candidate in 2008, Barack Obama promised to repeal Mr. Bush’s executive orders on constitutional grounds. “The biggest problems we’re facing right now,” he said, “have to do with George Bush trying to bring more and more power in to the executive branch, and not go through Congress at all.”

And yet, as president, Mr. Obama came to embrace—and even expand—the use of executive orders. In fact, in December 2011, he literally endorsed Theodore Roosevelt’s populist vision of the presidency, traveling to Osawatomie and invoking the New Nationalism speech to justify his own use of unilateral executive action. “Today,” Mr. Obama said, “we are a richer nation and a stronger democracy because of what [Theodore Roosevelt] fought for in his last campaign: an eight-hour workday and a minimum wage for women, insurance for the unemployed and for the elderly, and those with disabilities; political reform and a progressive income tax.” President-elect Trump is now drawing on that same populist tradition as he pledges to undo many progressive achievements by executive fiat.

In 2014, Republicans won a majority in both houses of Congress, and Mr. Obama spent his final two years in office trying to circumvent congressional inaction or opposition. He issued a series of executive orders that critics said expanded the domestic reach of the imperial presidency. In areas such as immigration, greenhouse-gas emissions and gun control, Mr. Obama proposed policies, Congress refused to endorse them, and he then enacted the policies on his own.

Overall, according to the Congressional Budget Office, Mr. Obama independently enacted 560 major regulations during his first seven years in office—nearly 50% more than during the two terms of the George W. Bush administration. The Supreme Court has repudiated or questioned some of Mr. Obama’s efforts to circumvent Congress, including his immigration orders, which the court effectively blocked by a 4-4 vote last June.

Now Mr. Obama’s constitutional shortcuts may come back to haunt him. Mr. Trump has the power to repeal Mr. Obama’s executive orders with the stroke of a pen, just as Mr. Obama repealed those of his predecessor. Indeed, Mr. Trump has signaled that he may use his executive powers to dismantle key parts of Mr. Obama’s legacy—deferred deportation for undocumented immigrants, the Education Department’s Title IX regulations concerning gender identity on campuses, the Iran nuclear deal and the lifting of sanctions on Cuba.

With the support or acquiescence of a Republican Congress, Mr. Trump could end up wielding even more sweeping powers. And he does not need congressional support to deploy troops abroad for limited periods.

The Supreme Court might check Mr. Trump if he tried to carry out promises that are clearly unconstitutional—such as his threats to take away the citizenship of those who burn the American flag, to repeal libel laws or to deport people based on their religion. It might even check Mr. Trump in national-security cases—if he tried, for example, to reinstate waterboarding or sweeping surveillance without congressional approval.

Mr. Trump’s international business interests and his children’s role in the White House may raise legal and constitutional challenges of their own. But unless a Republican Congress actively resists him, the conservative populist could enjoy sweeping powers, expanding the imperial presidency in ways that might make the progressive populist Theodore Roosevelt look constrained.

Over the past century, presidential power has grown enormously in both foreign and domestic affairs. The only real check has occurred when the people themselves say that they have had enough—protesting in the streets, reshaping the parties and throwing the rascals out. In the end, only the American people, exercising their rights of speech, voting and association, can rein in a presidency that congressional Democrats and Republicans alike have allowed to grow far beyond the original bounds of the Constitution.

Mr. Rosen is the president and CEO of the National Constitution Center in Philadelphia. His new book is “Louis D. Brandeis: American Prophet,” and he is working on a biography of William Howard Taft.

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