Monday’s Mtg: Presidential Power

Since we’re electing a president, I thought it might be nice to talk a little about the extraordinary scope and reach of the modern presidency.  Everybody knows the powers of the office have expanded dramatically in the past 50 years, and especially in the last ten.  Modern presidents start wars, cross names off of assassinations lists, control a vast surveillance apparatus and internment camps, etc.  Most of the really dramatic changes have been national security-related.

But, what about presidential power over domestic policy, the stuff that most American think they’re voting for?  I’d like to focus on that, as well, so we get the more complete picture of the power of modern presidents.

Constitutional scholars often say the president has three kinds of powers:

  1. Enumerated: Those explicitly to the President in the document.
  2. Delegated:  Powers of Congress that it cedes to the president through law.
  3. Contested:  Given explicitly to neither body and fought over if they want to fight about it.

To this list we could add some other powers that exist in practice in large doses in the modern age:

  1. Expertise and information: in the executive branch in, say, the EPA and DOE.
  2. Secrecy:  CIA, DOD, Homeland Security, et. al.
  3. Persuasion:  Of the public and the other branches.

You don’t need much lecturing from me on this basic stuff, of course.  But, I am going to open with a little bit of explanation of  how presidents and Congress do battle over this stuff.  Congress and the courts can constrain overweening executive power if they really want to do so, and I’ll talk about how that works a little.  It’s only when we understand how the three branches really compete that we can fathom how, say, a President Romney could hold a powerful office and yet be hostage to his GOP base, or how Obama can get so much done despite such dogged opposition.



  1. What types of powers does the president have (a) under the Constitution, and (b) in practice?
  2. How does a president accumulate power not explicitly granted in the Constitution, and how do the other branches take it away?
  3. Is this accumulation of power “natural;” i.e., a result of the needs of the modern state?  Or, is it too much?
  4. Okay, then: What’s the alternative to the imperial president?  Who would solve national problems – Congress?  The states?  No one?
  5. How could the power of the office be restricted in an age when the office is contested by two political parties that disagree so fundamentally that they want all that power whenever it’s their turn to wield it?

LINKS – Not much this week.

  • Madison’s nightmare,” the view that presidential power has gotten way, way out of hand.  Daily Kos same thing.
  • But, presidents must persuade and bargain to get their way, not command.  Power is shared more than it separated.
  • Alternatively, Bush claimed a “unitary executive theory” of the Constitution to claim that a president’s power during wartime was basically unlimited.
  • Conservatives love the non-delegation doctrine, the idea that Congress may not delegate any of its powers to the president.  This theory could be used to eliminate much of the modern regulatory state, since much of it is was not passed into law.

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