The Presidency and the Constitution

The American presidency is often called the most powerful office on earth. This is so not only because the nation which elects the president is the most powerful nation on earth, but also because the American Founders designed the office to be strong and effective. However, the Founders also placed certain restraints on this power, which are necessary to maintain liberty and protect citizens’ rights. The modern understanding and structure of the presidency are a threat to freedom due to the accumulation of all three powers—legislative, executive, and judicial—in the executive branch and the breakdown of constitutional restraints.  

The institution of the presidency as established by the American Founders has been drastically altered over the course of the last century. The modern executive branch spends most of its time and energy engaged in unconstitutional activities, while neglecting many of its constitutional obligations. Whereas the American Founders thought the purpose of government should be the protection of every citizen’s natural rights, today’s government— by means of a bureaucracy nominally overseen by the president—is oriented toward the protection of certain classes of citizens and detailed management of society’s problems. By contrast, the Founders thought that rights should be protected by all three branches: they are defined in law by Congress, violations thereof are adjudicated in the courts, and those who violate the rights of others are punished, according to law, by the executive.

In the Constitution, the president is given three domestic powers: the power to execute the laws; the power to appoint executive branch officers with the advice and consent of the Senate; and the power to require written opinions from the heads of executive departments. The chief executive also has a role in the legislative process: the president holds the veto power, the power to make recommendations to Congress, the power to convene Congress, and, in the case of disagreement between the two houses of Congress, to adjourn it. The modern presidency has failed at one of its fundamental tasks—enforcing the laws passed by Congress—thereby threatening the rights of American citizens. 

Many features of today’s presidency originated in the Progressive Era. Progressive leaders, including Presidents Theodore Roosevelt and Woodrow Wilson, sharply criticized American political institutions and the Founding principles on which they were built. In particular, Progressives believed that the separation of powers and other constitutional limits on federal power were antiquated, prohibitive, and unnecessary. To break these constitutional shackles, Progressives turned to the office of the presidency, which they thought could transcend such limits by becoming a steward of the people’s will.

The use of rhetoric by Progressive presidents, beginning in the early 20th century, has transformed the way that Americans think about the presidency. No longer is the president viewed as the head of one institution in a tripartite system of separated government powers that is designed to secure the natural rights of all American citizens. Rather, the president is today considered a national political leader who is expected to wield the powers of government in order to satisfy the needs of the people. To execute this political role, the modern president primarily relies on three rhetorical techniques: he employs a wartime mentality, provides a vision for the future, and offers himself as an indispensable leader who can address the problems of the day.

The president serves as commander in chief of the armed forces, and he also has the power and responsibility to direct the foreign affairs of the nation. However, the Framers of the Constitution were careful to limit the president’s war power by vesting the powers to declare and fund war in Congress. The Founders believed that the fundamental object of any foreign policy should be America’s safety and independence, for the sake of protecting American citizens’ rights. The Progressive view of foreign policy and the war power—which marks a rejection of this principled position—has transformed America into an exporter of ever-changing political ideals. 

In order to make the federal government energetic and responsible, the Framers of the Constitution vested the executive power in a unitary presidency. The Framers understood that the president would need assistants to help him fulfill his constitutional duty. While the Constitution gives clear instruction on executive appointments, the text is unclear regarding the dismissal of executive officers. Although the first Congress confirmed the president’s exclusive power of removal in 1789, this understanding has been slowly reversed by the judiciary beginning in 1935. The modern president, contrary to the Founders’ theory, has very little power with regard to removal of subordinate officers.

A central tenet of Progressivism is the rejection of the president’s constitutional role as chief executive. In response, presidents from both parties have sought other forms of governance. These forms, which have become mainstays of the modern presidency, center power in the White House and depend on regulatory review and a large administrative apparatus. Far from the Lincoln White House, in which the president had two assistants, today’s White House is full of administrators who help to oversee an ever-expanding bureaucratic state. 

A troubling feature of the modern presidency, which has expanded rapidly under the Obama Administration, is a brazen disregard for constitutional limits and the law. Contrary to the framework of the Constitution, which depends on competition among the three branches of government, Congress and the courts have been increasingly complacent in the face of, and often compliant with, the development of this feature. Over the course of the last century, particularly since the 1960s, these institutions have enabled the modern executive branch to exercise all three powers of government in the regulation of nearly all aspects of everyday life.

The Founders placed the executive power in the hands of a unitary officeholder, the President of the United States. This unity enables the president to act decisively and ensures that he will be held accountable for his actions. The office was designed to be limited and to be checked by two other branches. By contrast, modern government is run chiefly by unaccountable executive-branch bureaucrats who hold all three powers—legislative, executive, and judicial—of government. In order to avert the crisis presented by this unconstitutional combination of powers, citizens must work to understand the principles of the Founders’ Constitution, and seek to apply these principles to contemporary politics.