While each president has had his own approach to the office and has tested the boundaries of his authority in different ways, the tenure of the founding generation was comparatively subdued. Each had their own strengths and weaknesses, but from Washington to Adams to Jefferson to Madison to Monroe and to an Adams again, there was a broad consensus on what the President could and could not do.
That consensus, however, would be challenged by a consummate outsider.
Andrew Jackson was a local high-water mark of presidential power. A rough and tumble man who loathed most of the established political players, Jackson carved a path all his own. Ignoring Washington’s example, Jackson vetoed more legislation than all of his predecessors put together.
In the case of Worcester v. Georgia, when the Supreme Court ruled that the Cherokee nation had a right to their land under federal treaty and could not be removed, Jackson completely ignored them, supposedly saying of the chief justice, “John Marshall has made his decision, now let him enforce it.” A move which neatly embodies the watchmen problem — if the man tasked with enforcing the law simply refuses to enforce it, then who enforces the law upon that enforcer?
Few of his successors would match Jackson’s influence until Abraham Lincoln was elected. Often listed first in the pantheon of American legends, few men have been as revered by history and as reviled by their contemporaries as the man who saw the country through the Civil War.
Lincoln steered the country through an unprecedented crisis and rightly deserves credit for the extraordinary achievement of abolishing slavery, which his predecessors, despite their best efforts, could not match. To do so, however, he became indisputably the most powerful American president up until that point.
Lincoln suspended habeas corpus — he had dissident newspaper editors jailed, he instituted the nation’s first income tax (which was not constitutional at the time) and an incredibly unpopular draft. And while the Emancipation Proclamation was undoubtedly a great achievement it was also a massive exercise in executive power that would not have been legally tenable at the time outside the exigencies of war.
For these reasons, Lincoln was painted by his enemies as a tyrant, and while history remembers him as a liberator this was the reason that “sic semper tyrannis” was cited to defend his murder.
Few of his immediate successors matched Lincoln’s gravitas or historical impact. His vice president, Andrew Johnson, would scuttle many Republican ambitions for Reconstruction. In retaliation, Congress would take the comparatively rare step of infringing on the president’s powers by passing a law demanding that he could not fire any members of his cabinet without their approval — and then impeaching him when he went ahead and did it anyway.
The law wouldn’t stand up in court, but Johnson avoided removal from office by a single vote in the Senate.
For the sake of brevity, I will gloss over the presidents of the late 19th century, who, compared to the heights of Lincoln and Jackson, were relatively weak executives during a period where Congress was largely ascendant.
However, by the 20th century, the presidential trend came back with a vengeance — this was the era of the Imperial Presidency. While there were comparatively subdued executives such as Calvin Coolidge and Warren G. Harding, there were many more activist executives such as William McKinley, Teddy Roosevelt, Woodrow Wilson, Franklin Delano Roosevelt, and Lyndon Johnson — each of whom vastly expanded the power of the federal government with military interventions abroad (The Spanish American War, The Roosevelt Corollary, WW1, WW2, Vietnam) and greater economic intervention at home, from trust busting to the New Deal to The Great Society.
The advent of the permanent income tax and the Federal Reserve at the start of the century gave the federal government far more resources. And since the day-to-day operation of the federal government is primarily carried out by the executive branch, which the president has unilateral authority over, this naturally multiplied the power of presidency.
To illustrate this point visually — when the White House complex was first constructed, every cabinet department could fit within it — the Treasury building was directly to the mansion’s east, while the State Department, War Department and the Department of the Navy were headquartered directly to its west. By the 1870s, the west side of the complex was remodeled and transformed into what was the largest office building in the world at the time in order to house those same three departments.
That building still stands as the Eisenhower Executive Office Building, and as of now it houses some of the president’s office staff.
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The advent of mass media also contributed to the president’s powerful bully pulpit and ability to shape national policy discussions — when communications were slow and congressional districts were smaller and more isolated it was almost impossible for the president to communicate with the entire nation in any timely fashion.
Improved infrastructure, and later the radio and television, allowed presidents to broadcast their agendas and ideas directly into the homes of everyday Americans. As the principal figure in the expanding national government, the president naturally received a massive share of media attention.
Increasing American militarism has also increased the relative importance of the presidency — a commander-in-chief is far more consequential in wartime than in peacetime. With American forces deployed in multiple theaters around the globe and with American nuclear assets easily capable of leveling human civilization, the man who controls all that awesome military might is very powerful indeed.
But the expansion of executive power is not merely a consequence of the growth of government as a whole, or the ease of mass communication, or American adventurism overseas; there is another process at work.
Because as mentioned previously, Congress has the exclusive constitutional authority to declare war, and to ratify treaties. The president can execute that war as he sees fit, and negotiate terms for their consideration. The president has broad authority to make snap defensive decisions but by historical logic, most of these overseas operations would require a congressional declaration.
Yet Congress has not formally declared war since 1942. It has “authorized military action” since then, but in many circumstances, it has also authorized the president to take such actions without seeking congressional approval — according to the War Powers Act of 1973 the president can deploy military forces for up to 60 days without bothering to ask Congress. And even with that broad window, they sometimes have neglected to follow up and have continued to deploy forces with zero consequences.
What is going on here?
Well, as the federal government has grown in size and scope the minutiae of day-to-day affairs has expanded well beyond what Congress can manage — regulations formulated by bureaucrats often carry the force of law, as do executive orders from the president. Part of this is practical — rather than working out every legislative detail Congress can give broad authority to an expert regulatory body and allow them general autonomy over how they wield that authority. In other words, the executive branch has become more powerful because the legislature has increasingly delegated legislative powers.
But beyond the pragmatic justification of expediency and expertise, why has Congress given up so much power — when the presumption behind checks and balances is that every constitutional actor would jealously guard their powers against the infringement of the others?
Because institutions do not have incentives — individuals do. Voting one way or the other on any specific regulation might cost a representative support in the next election, lowering their chances for re-election. Foisting the pesky details off to another body may weaken Congress’ relative power, but it serves the ambition of the individual officeholder. On the other hand, executive power is unified — the power of the legislator and the legislature may not be one and the same, but the power of the executive largely is.
While lifelong employees may remain as administrations come and go, and the byzantine nature of our own bureaucracy may make it too difficult for any one man to practically control, in theory, every member of this massive apparatus operates at the pleasure of the president — the amount of power that has been accrued is staggering.
It is difficult to condense centuries of political development in any reasonable time frame without losing some nuance or detail, but the broad strokes are fairly clear.
The president has become the most powerful man in the world. But that was not what the office was intended to be.
And as we commemorate the men who held that office and made it what it is today, we should ponder this: Is the presidency what it should be?