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Executive Power

6 min read

Part of The Constitution and the courts.

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Every episode (8)

Who argued it

Gene Healy ×2 · Frank Buckley ×2 · William Howell · Terry Moe · Chris Preble · Harlow Giles Unger · Thomas Fleming

Constitutional Law · Donald Trump · High Crimes and Misdemeanors · Populism · Electoral College · Administrative State · Federalism · Campaign Finance

Background

Executive power in the American Constitution is, on the sources’ account, an undefined quantity. In an episode on George Washington, historian Harlow Giles Unger tells Bob Zadek that the Constitutional Convention, having lived under the tyranny of King George III, created a figurehead as president. The Constitution, Unger says, provides that the executive power shall be vested in a President of the United States, but fails to define executive power. Zadek adds that the founding document contains only a few syllables of commentary on what is now the most important political office in the world. How Washington Invented the Presidency (2013)

Unger attributes the office’s modern shape to Washington himself, whom he calls the greatest president in history and the inventor of the presidency as we know it. James Madison, Unger notes, described the executive as the weaker branch of the system. Yet Unger says recent presidents almost make a mockery of the office Washington created. How Washington Invented the Presidency (2013)

War and the imperial presidency

A second line of argument holds that war built the modern executive. Ivan Eland, director of the Center on Peace and Liberty, tells Zadek that his center studies the nexus between war and the erosion of liberty, including the domestic costs of war — the erosion of civil liberties and the expansion of executive power past what the Founders intended — producing what he calls an imperial presidency because of the wars of the twentieth century and partly into the twenty-first. United Iraq Falls: Ivan Eland on Partitioning for Peace (2014)

On the mechanism, Zadek offers his own framing: war was once a formal act, and the President would go to Congress, seek congressional approval, and could not commit forces without it. That, he says, has eroded, so that the army has become the private police force of the President and the country lives in a state of perpetual war. United Iraq Falls: Ivan Eland on Partitioning for Peace (2014)

Christopher Preble gives Zadek three reasons the drift is structural. First, war is easy because a large professional military is already deployed abroad: the President uses the military and then dares Congress to cut off funds. Second, after World War II the National Security Act of 1947 created an Air Force and the Central Intelligence Agency and renamed the Department of War the Department of Defense, redefining defense as protecting an idea that had to be defended forward, in Europe and Asia. Third, war is the easiest of all things the President can do, because the Constitution’s many veto points, which make domestic policy hard, do not restrain the use of force. On Foreign Policy, will Trump heed the Restraining Constituency or John Bolton? (2019)

Abdication, delegation, and statutory stretching

The sources describe Congress declining its own role regardless of which party holds the White House. On impeachment, an episode description frames the office through the Founders’ intent and the charges against Donald Trump, with Gene Healy of the Cato Institute as guest. Which Impeachment Movie Are You Watching? (2019) In the foreign-policy episode, congressional abdication is named directly in a section heading. On Foreign Policy, will Trump heed the Restraining Constituency or John Bolton? (2019)

Zadek argues that executives also delegate away their own judgment. In an episode on the pandemic, he says that when a mayor or governor decides solely on health considerations, he turns executive power over to a subordinate official, and that hiding behind science is the last refuge of elected officials, who thereby get a pass and abdicate decision-making rather than make the hard call. Here comes “the spike…” (2020)

Statutory stretching is described in a student-debt episode. Elizabeth Nolan Brown tells Zadek that Biden invoked the 2003 Higher Education Relief Opportunities for Students Act, signed by George W. Bush, which permits the Secretary of Education to waive or modify federal student financial assistance program requirements to help those affected by war, other military operations, or national emergency. Biden, she says, counted the COVID-19 pandemic as the national emergency. The Student Loan Debt Fiasco (2022)

Zadek, reading the statute as a lawyer, invokes the Supreme Court’s rule that when a list reads A, B, or C, C must relate to A or B, and argues COVID is not like a war or military action. He adds that when Biden took steps on evictions he acknowledged the move would not succeed but would last a few months until it went to court, and that Biden would then say he did what he promised the progressive left. Brown generalizes the point: when executive power expands, people assume it will be used only in the particular circumstance, but expansions are stretched to more expansive uses. The Student Loan Debt Fiasco (2022)

Across episodes: no development, a persistent question

The episodes show no arc. Unger’s 2013 treatment traces the office’s origin, Eland and Preble in the 2010s trace war’s role, and the 2020 and 2022 episodes describe pandemic-era delegation and a stretched statute; each speaker advances the same concern, and nothing on the show shows an earlier and later position being revised. How Washington Invented the Presidency (2013) On Foreign Policy, will Trump heed the Restraining Constituency or John Bolton? (2019) The Student Loan Debt Fiasco (2022)

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