Contested Ground

How to Understand the Limits of Presidential Power

Dan A. Farber

• Publisher: University of California Press
• Year: 2021
• ISBN:
  9780520975279
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto pubblico

The Trump presidency was not the first to spark contentious debates about presidential power, but its impact on these debates will reverberate far beyond his term. The same rules must apply to all presidents: those whose abuses of power we fear, as well as those whose exercises of power we applaud. In this brief but wide-ranging guide to the presidency, constitutional law expert Daniel Farber charts the limits of presidential power, from the fierce arguments among the Framers to those raging today. Synthesizing history, politics, and settled law, Contested Ground also helps readers make sense of the gaps and gray areas that fuel such heated disputes about the limits of and checks on presidential authority. From appointments and removals to wars and emergencies, Contested Ground investigates the clashes between branches of government as well as between presidential power and individual freedom. Importantly, Farber lays out the substance of constitutional law and the way it is entwined with constitutional politics, a relationship that ensures an evolving institution, heavily shaped by the course of history. The nature of the position makes it difficult to strike the right balance between limiting abuse of power and authorizing its exercise as needed. As we reflect on the long-tailed implications of a presidency that tested these limits of power at every turn, Contested Ground will be essential reading well after today's political climate stabilizes (or doesn't).

1

Creating the Presidency

In the midst of the coronavirus outbreak, President Trump announced his view of presidential power: “When someone is president of the United States, the authority is total.” In reading this chapter, consider how it might bear on that statement.

To understand the creation of the presidency, we need to understand how Americans thought about the executive branch at the time. Obviously, there was no “President of the United States” before there was a United States. Before American independence, colonists were legally subject to the English king and his appointed governors. It was only after independence that Americans had to worry about how to design the executive branch. In the immediate aftermath of independence, they created a joint government with no executive head at all. All authority over the thirteen colonies, to the extent there actually was such authority, resided in the Continental Congress. In the first state constitutions, governors were given severely limited powers. Judging by most of their initial blueprints for government, Americans did not see much need for executive power. Yet little more than a decade later, the Constitution created a powerful new chief executive.

This chapter tells the story of that development. The story begins after independence, with the state constitutions, then moves to the Constitutional Convention, where the delegates struggled to define the office, and to the ratification debates. Even then, much was unclear about the meaning of the Constitution, and important aspects of the presidency only started to come into focus in the early years of the Republic.

In thinking about the creation and early implementation of the Constitution, keep in mind that the United States was a far different place when the Constitution was framed and first put into effect. Only five cities had more than 10,000 people. New York City, the largest, had a population of 30,000, about the same as Fairbanks, Alaska, today. Washington, DC, did not exist. Virginia, the state with the largest population, had approximately as many people as El Paso, Texas, has today. In some ways, the closest analogy to the United States of that time is present-day New Zealand, which is heavily agrarian, like 1790s America, and has a population a bit bigger than the United States had then. Like New Zealand today, the America of 1789 was far from the main centers of global power. Britain and France were the great world powers, and Spain still had significant clout. A large chunk of what is now the United States remained under Spanish control. It was not until fourteen years after George Washington took the oath of office that the United States extended past the Mississippi.

American governments were also different in earlier times. After independence, Americans seem to have developed an allergy to strong executives. The early state constitutions generally gave state legislatures effective control over weak governors. State legislatures were considered the heart of democratic government, directly representing the sovereign people. In contrast, the executive branch was considered a dangerous staging point for potential tyrants.

But the Framers of the Constitution chose not to follow those early state constitutions. Like some of the revised constitutions more recently adopted by some states, they created a more powerful chief executive who was less dependent on the legislature. There is considerable dispute about just how much stronger and more independent they intended to make the president, but there is general agreement that they did plan for a stronger executive. That vision was fleshed out in the early years of the new Republic under the first presidents. To understand the modern presidency, we must begin with this formative period.

The creation of the presidency was part of the larger project of designing a government strong enough to deal with nationwide problems, yet not so strong as to threaten individual liberty (or at least, the liberty of white people). During the writing of the Constitution, much of the discussion revolved around federalism, the relationship between the states and the Union. That is not surprising, since the fundamental goal of the Constitution was to transform that relationship, giving the federal government far more power at the expense of the states. Connected with this was the question of how the new government would connect with the people themselves and, more broadly, how to make it strong enough to accomplish its mission without becoming a threat to liberty.

Creating the executive branch involved its own set of issues. There was a general desire to give the executive branch some degree of independence from the legislature and of course to ensure that it was able to perform its role effectively. How to do so was more puzzling, and it took considerable time to settle this and to determine the division of authority between the president and the Senate. The early drafts of the Constitution entrusted the Senate with special authority, much of which was shifted in whole or in part to the president in the final version.

When the new government finally took office in 1789, Congress and the president both had to do additional work to figure out how to make the constitutional scheme operational. It is enlightening to see that much that we take for granted about the role of the presidency did not seem obvious when the Constitutional Convention met or even in the early years of the government. Some of those issues were settled at the convention or in the government’s start-up phase; others remain fiercely debated even today.

Although this history might seem irrelevant to current events, it remains very much a part of modern debates. Every facet of the history I am about to discuss has been pored over by lawyers and scholars ever since, looking for clues about the meaning of the Constitution.

As with any story, the beginning point is a bit arbitrary. In designing and launching the government, the Framers were heirs to ideas and practices that were rooted in history. Even the British monarchy, the national executive that was most familiar to Americans, had evolved over centuries as a result of constant back and forth with Parliament while meanwhile creating a substantial administrative apparatus. This evolution may have been assisted by the fact that Britain has never had a written constitution. And the Framers themselves looked back even further, frequently to the ancient Roman Republic. The age requirements for various federal offices track those of ancient Rome, and the use of the term “Senate” also harkens back to Roman times. But rather than begin two thousand years ago, let’s start with the run-up to the Constitutional Convention.

The Tangled Drafting Process

The Philadelphia convention that produced our Constitution was the outgrowth of a decade of discontent with the existing framework of government. The year after declaring independence, the Continental Congress produced the Articles of Confederation. As the name indicated, the Articles envisioned a federation of states rather than a true national government. Under the Articles, Congress had control of foreign affairs and waging war. Its domestic powers, however, were very weak, and its only way of obtaining money or enforcing its directives was through the states. There was no executive branch. Congress was unable to repay money borrowed to finance the war for independence or soldiers’ pensions, and trade suffered from barriers enacted by individual states. There was also considerable discontent with state governments. Many people—in particular, those with property—worried that populist state laws threatened their existing rights.

These problems created a sense of crisis. Some historians contend that the actual circumstances facing the country did not actually constitute a crisis. The economy was not doing badly; the country was at peace; and more or less the same people as before were leading state governments. The feeling of crisis was nevertheless widespread. It may have been due in part to foreboding over whether the government was strong enough to deal with future issues. But it owed even more to the failure of “republican” state governments to live up to the high expectations of the Revolutionary War period. The states were run by legislatures that were directly responsive to the public, yet the results were disappointing and too often economically destabilizing. And under the Articles of Confederation, the congress of state representatives was stymied by the need for unanimity and the absence of any way of obtaining its own financing and implementing its own laws. It had to rely on the states both for funding and for enforcement of its dictates.

Along with what some considered irresponsible legislatures, the state governments tended to have very weak governors, in reaction to the excesses of the royal governors under the British regime. Most were elected by the state legislatures and had limited powers, required to consult executive councils before acting. New York was a major exception. The New York governor held office for three years, unlike the shorter terms elsewhere, was not saddled with the duty of consulting a council except in appointing judges, and was elected by the public rather than the legislature. He belonged to a council of revision that had the power to overturn legislative enactments. The New York model proved influential elsewhere, such as in the 1784 Constitution adopted in Massachusetts. Opponents of the strong-governor model considered it undemocratic and a threat to liberty.

In 1786, delegates of five states met in Annapolis and called for a convention to consider changes in the Articles of Confederation, which Congress then called. All the states sent delegates except Rhode Island (often called “Rogue Island” by critics). That convention convened in Philadelphia on May 14, 1787. Although one often hears about the “long hot summer” during which the delegates met, the weather was actually fairly mild.

The discussion of the presidency at the Constitutional Convention was primarily focused on structural issues: whether to have a single head of the executive branch or divided control by several leaders; and if the former, how and by whom the president would be chosen and how the president could be removed. The convention’s perplexity over these issues can be seen in the number of inconclusive discussions and votes before delegates finally came to a resolution. More time was spent on these matters than on precisely delineating the powers of the office.

One of the convention’s difficulties was working out the relationship between the president and Congress, particularly the Senate. The Framers tended to think of the Senate as a council of community leaders and wise men, as opposed to the more populist House of Representatives. It was no easy matter to make the executive branch powerful and independent enough to be effective without making it powerful enough to threaten tyranny. When the convention began, delegates already had strong views about the relationship between state and national governments, which was the convention’s central focus. In contrast, they did not generally seem to have come to Philadelphia with any clear vision of the executive branch.

Because the primary task facing the country was strengthening the union between states, James Madison prepared for the convention by researching past and contemporary confederacies, including their executive officers (if any). But Madison didn’t concern himself with the executive branch of government when he wrote about the defects of American government that required fixing. Prior to the convention, he remained undecided about the executive branch. In an April 1787 letter, speaking of the executive branch, he wrote, “A National Executive will also be necessary. I have scarcely ventured to form my own opinion yet either of the manner in which it ought to be constituted or of the authorities with which it ought [to be] cloathed.”

If Americans had had a more sophisticated understanding of developments in England, they might have considered something like a prime minister system in the United States. Their understanding of English political developments, however, was filtered through their knowledge of the conflicts between the Court and Country factions earlier in the century and of the earlier disputes leading to the Glorious Revolution of 1688. Thus, where we might see the emergence of modern English parties and parliamentary government in the late 1700s, they saw a conflict between a corrupt, monarchical faction and the advocates of virtuous, public-spirited government. Although the actual power of the English king was fading, Americans still saw the king as the central power in English government. That was not a model they wanted to emulate.

The Articles of Confederation provided another possible model but not a successful one. The Articles had not provided for an executive branch. Instead, all power was reposed in the Congress. In practice, this didn’t work very well since it was impossible for Congress as a whole to keep track of all the details of governing or to engage in day-to-day decision making. Congress ultimately created four offices to implement policy. The heads of two of these offices were particularly vigorous. Robert Morris, superintendent of the office of finance, got into trouble when he attempted to manipulate government finances in order to force Congress to adopt his policies. John Jay, head of the office of foreign affairs, got pushback from southern states for his proposal that the Congress agree to a commercial treaty with Spain without demanding navigation rights on the Mississippi.

Apart from these models, good or bad, there had also been some well-regarded theoretical discussions of the separation of powers in the writings of the political philosophers John Locke and Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, better known as Montesquieu. The extent to which their theories were embraced by the drafters remains controversial. Some scholars see their definitions of executive power as crucial to understanding the Constitution; others see them as peripheral. I have more to say about these political philosophers later.

When the Constitutional Convention assembled, the picture of the future national executive remained blurry. At the beginning of the convention, Madison and other Virginians presented a blueprint that provided the starting point for later discussions. It called for selection of the president by Congress for a fixed term. The president would have “general authority to execute the National laws” and would have “the Executive rights vested in Congress by the Confederation,” whatever those might be. The president would also be part of a council of revision having the power to veto laws passed by Congress. This brief description of the presidency seems to have been in the nature of a placeholder, requiring substantial fleshing out.

When the subject of executive power came up at the convention, there were concerns about the extent of the president’s powers in the Virginia blueprint. One delegate feared that the president’s powers “might extend to peace & war & c., which would render the Executive a Monarchy, of the worst kind, to wit, an elective one.” There was a motion to make the executive a single person, which was attacked as “the foetus of monarchy” and an imitation of British royalty. The response was to distinguish the king’s role as an executive implementing laws enacted by Parliament from the king’s “prerogatives,” a set of powers giving the king independent authority in a number of areas, including treaties and war making. The convention then endorsed the idea of election by Congress of a single executive. The Council of Revision was rejected, largely because it would include judges, and delegates were worried that this would ...

Table of contents

• Title
• Copyright
• Dedication
• Contents
• Preface
• Introduction
• 1.   Creating the Presidency
• 2.   Clashing Visions of Presidential Power
• 3.   The President and Foreign Affairs
• 4.   Taking the Country to War
• 5.   The Bureaucrat in Chief
• 6.   The Domestic Policy Czar
• 7.   Presidential Power versus Individual Rights
• 8.   The President and the Courts
• 9.   Congressional Checks and Balances
• 10.   Concluding Thoughts
• Afterword
• Sources and Further Reading
• Index