Chapter 29: Contemporary Issues of Presidential Power

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

–James Madison in Federalist #47

The Problem of Executive Power

The Constitution performs a delicate balancing act between empowering and constraining the presidency. It is no surprise, then, that American political history has witnessed numerous controversies about presidents exercising power. Some presidents have pushed the envelope, while others have not. However, the long-term trend is clear: over time, presidential power has increased considerably.

Executive power is always a tricky political problem. The founders were especially cognizant of what history had to teach about checking executive power. Democratic republics are fragile, as the demise of Athenian democracy and the Roman republic demonstrate. It was a long time before anything resembling popular democracy returned to the West. In 1215, King John of England—after disastrous foreign policy mistakes and domestic abuses of power—was forced to accept the Magna Carta, or Great Charter. The Magna Carta limited the king’s power vis a vis the nobility and the clergy. Later, in 1649, Parliament executed Charles I. During his rule, he levied taxes without Parliament’s approval, disbanded Parliament for eleven years, forced people to loan money to the government, and sent an armed force into Parliament to arrest members. After a Commonwealth period in which Oliver Cromwell ruled a fractious England as “Lord Protector,” the monarchy was restored in 1660 when Charles II, son of Charles I, was invited to be king. A later king, James II, was forced from power in the Glorious Revolution when Anglicans feared that his son’s birth would establish a Catholic dynasty in England. Instead, they asked his Protestant daughter, Mary, and her husband, William of Orange, to rule. William and Mary were forced to accept the 1689 Bill of Rights, which guaranteed, among other things, the right not to be taxed without Parliament’s approval, the right to petition the King, the right for Protestants to bear arms for self-defense, freedom from cruel and unusual punishments, freedom from excessive bail, freedom of speech in Parliament, and guarantees of a trial before having to pay fines. This background and the American colonists’ belief that both Parliament and King George III denied to them the “rights of Englishmen” underscore our own struggles with executive power.

In his classic book, The Imperial Presidency, Arthur Schlesinger, Jr., warned that the growth of presidential power threatened to warp the country’s constitutional fabric. It was a prescient warning. Informed citizens should be familiar with four key issues regarding executive power in the United States. Keep in mind that the issues are all interrelated, even though they are treated separately here.

Executive Privilege

Since the American republic’s beginning, presidents have exerted a right to executive privilege, even though this right is nowhere mentioned explicitly in the Constitution. Aside from not being in the Constitution, the problem with executive privilege is that its definition rests almost entirely on the collective judgments of courts over the years. As constitutional law professor Jonathan Shaub puts it, “the term executive privilege has no legal content. There is no law governing executive privilege.” (1) Basically, executive privilege asserts that the separation of powers built into the Constitution gives presidents a certain amount of discretion when responding to the legislative and judicial branches’ orders and information requests. (2) Specifically, presidents have argued that they are entitled to withhold from Congress, the courts, and the public certain executive branch documents and the transcripts  of deliberations within executive agencies. Executive privilege is not absolute. This is contested ground, of course, because unitary executive theory advocates would say that there should be no limits (described below). However, mainstream opinion among scholars and lawyers is that this particular presidential prerogative is limited. The consensus is that executive privilege cannot do the following:

• Protect the president when he is acting in his personal capacity.
• Shield information related to presidential decisions once they have been made.
• Hide communications related to committing a crime.
• Block information Congress requires in an impeachment proceeding.
• Protect communications that the president or his office never received.
• Provide absolute immunity to congressional subpoenas.
• Be exerted by a former president over the objections of the sitting president. (3)

George Washington was the first president to assert executive privilege, but the stakes have become more significant in recent cases. Presidents of both parties have tried to push the envelope and get around the limitations that courts have placed on executive privilege. During the Watergate scandal, President Nixon invoked executive privilege and refused to turn over White House tape recordings and written documents to special prosecutor Leon Jaworski. The Supreme Court ruled against Nixon—a decision that sealed his presidency’s fate because the tapes were damning—but it also appeared to give some credence to the executive-privilege idea. In its opinion in United States v. Nixon (1974), the Court recognized “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties,” and that “human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.” Presidents of both parties have used and sometimes abused executive privilege.

Unitary Executive Theory

Republican administration members and their supporters have been the strongest proponents of what is known as the unitary executive theory. This theory has been circulating among conservative legal scholars for years, but it finally reached the public consciousness when it became known that George W. Bush had relied on this theory to authorize the National Security Agency to wiretap phone calls in the United States without a warrant as required by the Foreign Intelligence Surveillance Act. Even before that, however, the Bush administration relied on the unitary executive theory in its War on Terror. Bush and his defenders asserted that the unitary executive idea allowed the executive branch to hold what it called “enemy combatants” in a state of legal limbo where they were not criminal defendants, nor prisoners of war, nor covered by the Geneva Convention, nor able to talk with lawyers, nor able to see any of the evidence against them. (4)

The unitary executive theory argues that the White House’s occupant has broad inherent powers that are implied by the Constitution’s executive authority vestment with the presidency. The president, these theorists argue, can act without legislative authorization and is virtually without check in the realm of national security

The unitary executive theory has important implications for the rule of law in the United States. The rule of law refers to the related ideas that no one is above the law, that all of us are equally subject to the laws that we collectively make together, and that decisions are reached by following pre-established procedures. During Donald Trump’s presidency, the president and his Attorney General William Barr, acted together to ensure that the law fell lightly on the president’s friends and heavily on the president’s detractors. (5)

The National Security State

Much of the growth in the president’s power can be attributed to what scholars and critics refer to as the rise of the national security state. This concept suggests that the exigencies of protecting the United States from real or imagined external enemies inflates the power of the military, the intelligence agencies, and the internal security agencies—all of which are directed by the president. The founders feared this sort of development because it inevitably eroded democracy and the civil liberties they cherished, and they continually warned against a large standing army in peacetime. James Madison wrote to Thomas Jefferson in 1798 that “perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretend, from abroad.” (6)

In 1947 the National Security Act passed, which consolidated the Department of War and the Navy Department into the Department of Defense—notice the rhetorical shift from War to Defense and that it is easier to support large expenditures year after year for “defense” rather than “war.” The Act created the National Security Council to advise the president on foreign affairs and security. The Act also created the Central Intelligence Agency (CIA), which was designed to gather intelligence and engage in covert operations around the world. Over the years, the CIA has led or participated in overthrowing foreign leaders and unsuccessfully attempting to overthrow others; the CIA has experimented with mind-altering drugs on Americans and illegally spied on Americans. Later, the United States established the National Security Agency (NSA), which is charged with gathering information from electronic intercepts and satellite imagery.

In his famous 1961 farewell address, President Dwight Eisenhower—who spent his career in the military before becoming president—warned against the power of what he called the military-industrial complex. It is worth quoting him at length:

This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence – economic, political, even spiritual – is felt in every city, every Statehouse, every office of the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society.

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. (7)

This is no less true today, say critics of the national security state, because of the War on Terror declared by President George W. Bush following the events of September 11, 2001. Spending on the military and other security operations increased, intelligence and law enforcement operations of the CIA, the NSA, and the FBI became more aggressive, and President Bush asserted broad executive authority in the name of national security. Subsequent presidents have continued to rely on the exigencies of national security to expand their powers.

Trump v. United States (2024)

Issues of executive privilege, the unitary executive theory and the national security state are all child’s play next to Trump v. United States (2024). Seeking to escape his many legal troubles after he left office, Donald Trump pushed a case to the Supreme Court in which he claimed absolute immunity from prosecution for his actions while he was president. While most legal scholars ridiculed the argument, the conservative members of the Court—three of whom were Trump’s own appointees—granted Trump most of what he had asked. In so doing, the Court upended the American constitutional order.

In a 6-3 decision, the Court ruled that presidents have “absolute immunity from criminal prosecution for acts within the scope of [their] exclusive constitutional authority.” This provision of the decision refers to such presidential powers as pardons and ordering executive officials to act. The Court also ruled that presidents have “presumptive immunity from criminal prosecution for . . . acts within the outer perimeter of his official responsibility.” This would include situations where the president shares power with Congress. Beyond that set of circumstances, what else lies in the outer perimeter of presidential responsibility? The Court is simultaneously expansive and vague on this point. The majority opinion extends the presumption of immunity to cover a wide range of actions “so long as they are ‘not manifestly or palpably beyond [his] authority.’”

What does all this mean? Imagine a president ordering officials or even friends to commit illegal acts. Prior to leaving office, presidents can simply pardon their associates for their illegal acts. Upon leaving office, the presidents themselves cannot be held to account in any court so long as their actions are interpreted as under their official acts. Imagine a president declaring a state of emergency the month before an election to affect the outcome of the vote. Trump v. United States has justly been described as a “blueprint for dictatorship” and a recipe for putting the president above the rule of law. (8) It seems that the Court feels that the only real checks on the president are impeachment and removal by Congress—a check that partisanship has rendered a dead letter—and the ethical sensibilities of the presidents we elect going forward.

What if . . . ?

Can you articulate a one-paragraph vision for the president’s proper role in the American republic? What should be the presidential role when it comes to enforcing laws passed by Congress and signed by the president? What should and should not the president be doing? What amount of discretion and leeway should they have? Do you think presidents should be immune from prosecution for all their acts? Some of them? None of them?

References

1. David Frum, “The Secrets Flynn Was Desperate to Conceal,” The Atlantic. May 8, 2020.
2. Jonathan Shaub, “Executive Privilege is Lawless,” The Atlantic. January 20, 2022.
3. Michael C. Dorf, “A Brief History of Executive Privilege, From George Washington Through Dick Cheney,” Findlaw Legal News and Commentary. February 6, 2002.
4. Adam Kasfeld, “No Tax Return Privilege or Blanket Immunity, DA Tells Trump,” Courthousenews.com. September 23, 2019.
5. Scott R. Anderson, “What to Make of Trump’s NDAA Signing Statement,” Lawfare. August 23, 2018.
6. Ian Millhiser, “How Justice Scalia Paved the Way for Trump’s Assault on the Rule of Law,” Vox. February 14, 2014. Savannah Behrmann and Kristine Phillips, “More Than 1,100 Ex-DOJ Employees Call for Attorney General Barr’s Resignation,” USA Today. February 16, 2020.
7. President Eisenhower’s Farewell Address on January 17, 1961. National Archives.
8. Adam Serwer, “The Supreme Court Puts Trump Above the Law,” The Atlantic. July 1, 2024. Ian Millhiser, “The Court’s Disasterous Trump Immunity Decision, Explained,” Vox. July 1, 2024.