The President Isn’t Supposed to Be This Powerful
The 3 branches of the US government were designed to keep the power of the other 2 in check. However, the president’s power has slowly grown, giving one person far more control of the government than originally intended.
The powers of the president are clearly listed in Article II of the Constitution. It’s surprisingly short and specifically gives the president the power to command the armed forces, enforce the laws created by Congress, veto legislation, convene/adjourn Congress, receive ambassadors, grant pardons, enter into treaties, appoint employees to federal agencies, and appoint judges. The last 3, though, are supposed to need Senate approval.
However, modern presidents have far more power and fewer checks and balances. 3 forces are responsible: abuse of the Unitary Executive Theory, a two-party system, and the erosion of states’ rights.
Unitary Executive Theory
Article II states “The executive power shall be vested in a President of the United States of America” and “he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.” While these statements seem straightforward, lawyers, scholars, and politicians have argued over their meaning since they were written.
On one hand, some argue for what is known as the strong interpretation, the belief that the president is the sole leader of the executive branch, meaning he or she can set the agenda of dozens of agencies in the executive bureaucracy and hire/fire anyone that works for them. On the other hand, some argue for the weak interpretation. This is the belief that the Constitution’s framers never intended the president to operate with zero oversight. They believe Congress and the court system should be involved in important decisions.
Alexander Hamilton seemed in 1788 to hint at the strong interpretation in Federalist №51 when he said: “In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.” However, he acknowledged achieving this might be problematic.
In recent decades, the strong interpretation has won. The Reagan administration successfully argued that the president both had the authority and should have authority to use the military, intelligence agencies, and the state department to fight the Cold War without the interference — or even knowledge — of Congress. This resulted in numerous proxy conflicts and scandals, such as Iran-Contra, in which senior officials secretly sold weapons to Iran and funneled the profits to the Contras, a rebel group, in Nicaragua. It’s also arguable that lack of political interference from Congress or legal interference from the Judiciary allowed to Reagan to do what was needed during a volatile and dangerous time. What gave Reagan this freedom? Because no other branches of government could stop him or even knew.
Later presidents expanded this authority drastically. For example, Bush Jr., Obama, and Trump used the strong interpretation of the Unitary Executive Theory to wage the largely clandestine War on Terror, including holding prisoners without trial, black site prisons, enhanced integration techniques (torture), drone bombings, covert military operations, etc. Why can they do this? Because they and their supporters believe they have sole authority over the military, intelligence agencies, law enforcement agencies, state department, etc.
Furthermore, the strong interpretation of the Unitary Executive Theory gives the president sole control over the Departments of Education, Energy, Agriculture, Commerce, the Treasury, Justice, etc., as well as the Post Office the Federal Trade Commission, among many, many more. Therefore, his or her agenda has sweeping influence across virtually every facet of the country. If the president wants to use his or her power for personal or political gain, it is not only possible but growing more common. For example, Trump’s Department of Justice was instructed to selectively redact the Mueller Report and bury embarrassing investigations; his Director of National Intelligence publicly disagreed with literally the entire intelligence community on Russian influence in the election to help Trump save face; his head of the Postal Service Louis DeJoy removed hundreds of high-volume sorting machines only a few months before an election that predictably had record amounts of mail-in votes; the Federal Election Committee was left unstaffed and powerless to investigate new election fraud claims; etc.
Trump said “I have an Article II, where I have the right to do whatever I want as president.” Clearly, his advisors and lawyers understood and agreed with the strong interpretation of the Unitary Executive Theory. Would the authors of the Constitution agree? Probably not, as the president exerts far more control than the other 2 branches, disrupting the delicate system of checks and balances they believed was so vital to preserving liberty.
Making matters worse is that the US has a 2 party system, split between the Republicans and the Democrats. Politics is becoming more polarized by the day, as people increasingly vote solely for 1 party. The other party is rarely even considered, regardless of the issue or the candidate. The Brookings Institute calculated that in the 2016 election only 8% of districts were won by the opposite party of the presidential winner, down from 44% in 1972. Likewise, Pew Research Center found in the 2020 election that only 3% of Senate elections had different party results than the presidential election. Therefore, voters have become more loyal to their party for a variety of reasons, including naïve realism.
One of the main consequences of this is that elected officials know opposing the president of the same party is political suicide. For example, Liz Cheney, one of 10 Republicans that voted to impeach Trump for the 2nd time, was pressured to resign by her constituents. In her state of Wyoming, 70% voted for Trump, and when she said that Trump “summoned this mob, assembled the mob, and lit the flame of this attack,” referring to the attempted insurrection of January 6th, her political fate was sealed.
This is also made obvious by the voting records for presidential nominees. When Trump nominated Amy Coney Barrett, not one Republican voted against her, just as they didn’t vote for Trump’s other Supreme Court nominees Neil Gorsuch and Brett Kavanaugh. The pattern is the same for almost all of Trump’s nominees, budget proposals, and initiatives. Democrats weren’t much better under Obama.
Of course, this is a problem for the delicate balance of power of the 3 branches. Congress is supposed to keep the president in check, yet they can’t if they fear both political and violent backlash, such as the threats made on Mike Pence’s life after he certified the counting of electoral votes in favor of Joe Biden. Perhaps the greatest example of this is Trump’s first impeachment trial, which was immediately shut down by the Republican held Senate, as they refused to allow witnesses or evidence of any kind. Therefore, Trump was able to continue the same questionable behavior without fear of being reprimanded.
Erosion of States’ Rights
The greatest check against the power of the presidency and the rest of the federal government is states’ rights. The founding fathers were adamant about protecting against the encroachment of the federal government, as they feared it might one day grow too powerful and put too much power into the hands of too few. Therefore, they enshrined this protection with the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Despite this, the federal government has certainly encroached on states’ rights mainly through creative interpretations of the Commerce Clause and the Necessary and Proper Clause, both found in Article I, Section 8. In particular, the president and his executive bureaucracy have significant influence over the states, including rolling back their environmental regulations, dictating their immigration policies, deploying federal agents during riots, targeting marijuana laws, meddling in their electoral proceedings, etc. In fact, the states sued the Trump administration 138 times for his executive overreach.
The trend is clear: the presidency is continually expanding, making the executive branch more powerful than the other 2. Today, the president has alarming amounts of influence on virtually every part of the federal government, something the founding fathers fought hard to avoid.
Reversing this trend means first rethinking the Unitary Executive Theory and allowing for Congress to have an increased role in the executive bureaucracy. This is easier said than done, as it involves nuanced legal maneuvering. Second, the 2-party system needs to be dismantled by creating an atmosphere that is conducive to 3rd party candidates. In part, this can be done by abandoning the winner-take-all electoral college and toning down the polarizing political rhetoric. Lastly, this country needs a reaffirmation of states’ rights, which happened somewhat during the Covid-19 pandemic, as state governors exercised their rights to protect public safety through lockdown orders. They could even make the vaccine mandatory if they so choose.
Most importantly, the real check on power is the people, yet we bear the lion’s share of the blame. We’ve allowed the president to grab more power because it suited our cause at the moment. When the other party is in charge, they are just as guilty. While the agenda of the parties change, the one thing that doesn’t is the growth of presidential power, as each president uses the same justifications as previous presidents to sidestep Congress, the court system, and the states to push their agendas through, while adding a few new ones of their own.
Therefore, the people need to exercise their power by not turning a blind eye to presidents’ executive overreach, even if we like how it’s being used.