This article appears in the Fall 2016 issue of the Intercollegiate Review.
Americans have come to expect the president to solve every pressing issue in society. Just look at the questions candidates field on the campaign trail: If you’re elected president, what will you do about X?—where X can be anything from creating jobs, to stopping gun violence, to improving education or health care, to reducing college tuition or gas prices.
Presidential candidates of all parties feed this expectation. Their websites are full of five-point plans to fix whatever ails America, and on the stump they tout everything they will accomplish as soon as they enter the White House.
But when you hear these confident declarations, stop and ask yourself: Can the president actually do the things candidates promise?
In many cases—maybe even most cases—the answer is no.
The Constitution as ratified by the states in 1787 and 1788 does not grant the president the powers needed to deliver on all the promises made to voters. Even when presidents pursue their agenda through executive orders—a dubiously constitutional tool—they cannot circumvent Congress or the states completely.
Lest you think these constraints reveal a “flaw” in the constitutional structure, consider why the Founders put so many checks on the president’s power: they understood that excessive executive authority poses a grave threat to liberty. Having just thrown off a king, they did not want to create an elected king.
Unfortunately, an elected king is what we expect today—and more and more it’s what we’re getting.
It’s time to rethink the powers of the executive branch. We must ask what the president can constitutionally accomplish, not what we hope he or she will do once in the Oval Office.
What the Constitution Says
So what are the president’s constitutional powers?
Article II of the Constitution contains seemingly vague enumerated powers. Constitutionally, the president must have the “advice and consent of the Senate” to make nominations or conclude treaties with foreign nations. He can “from time to time give to the Congress Information of the State of the Union” and make recommendations about legislation. He is commander in chief of the armed forces, and he is chief diplomat. The president is also required to “faithfully” execute the laws of the United States, and he has a limited veto.
To discern the meaning of these powers, it is important to review not only James Madison’s notes of the Philadelphia Convention of 1787 but also the debates during the ratification process. As Madison himself later said, it was the ratification debates that gave the Constitution its “validity & authority.”
During the Philadelphia Convention, delegates like Roger Sherman of Connecticut and James Wilson of Pennsylvania, who would become important voices for ratification, argued that executive power should be strictly limited. Sherman said that the executive branch “was nothing more than an institution for carrying the will of the legislature into effect,” while Wilson stated that the only powers he considered strictly executive “were those of executing the laws, and appointing officers, not appertaining to, and appointed by, the legislature.”
Madison put an exclamation point on both statements when he said that the president should have the “power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers ‘not legislative nor judiciary in their nature’ as may from time to time be delegated by the national legislature.”
Madison’s position is crucial for understanding executive power in the United States. The framers of the Constitution were keenly aware of the problems a single executive could create for American liberty. They had recently emerged from a nearly eight-year struggle against the British Crown, and when debate over Madison’s Virginia Plan began in May 1787, the delegates to the Philadelphia Convention sat in stunned silence over the prospect of another single executive.
So the convention took pains to create an executive branch that would not have the same power as the king of Great Britain. The national executive would not be “legislator in chief,” nor would he be able to control the newly established judicial branch. His powers would be limited and checked by the Senate, which served as the voice of the state legislatures until the Seventeenth Amendment provided for the popular election of senators.
If the executive lacked powers “not legislative” in nature, then why did the Constitution give him the ability to veto legislation? Several delegates in Philadelphia raised this question. Virginia’s George Mason, who declined to sign the Constitution, wondered aloud whether the executive branch would lead to “a more dangerous monarchy” than existed in Great Britain, “an elective one.” Benjamin Franklin offered this warning: “The first man put at the helm will be a good one. No body knows what sort may come afterwards. The executive will be always increasing here, as elsewhere, till it ends in a monarchy.” Franklin opposed an absolute veto over the legislature because “more power and money would be demanded, till at last eno’ would be gotten to influence & bribe the Legislature into compleat subjections to the will of the Executive.” Roger Sherman said, “No man could be found so far above the rest in wisdom.”
The Philadelphia Convention settled on a qualified veto (Congress can override the president’s decision by a two-thirds vote of each house), but the president’s veto power still became a source of contention during ratification. William Findley of Pennsylvania charged that the veto dangerously blended executive and legislative powers. Even the British king had only a “nominal negative,” Findley said, but under the U.S. Constitution, “No bill can become law without [the president’s] revision.” A Virginia newspaper suggested that the veto power put the United States on the road to absolute monarchy: “If the system proposed had been calculated to extend [the president’s] authority a little farther, he would preponderate against all—he alone would possess the sovereignty of America.”
To answer these charges, proponents of the Constitution insisted that the qualified nature of the veto made it safe. Wilson argued that the veto did not give the president “legislative authority.” The president could not initiate legislation but could only sign or veto what Congress sent him; “no bill passes in consequence of having his assent.” Wilson stressed the need to observe the “strict propriety of language” in the Constitution—no reading between the lines. Both Alexander Hamilton and James Iredell of North Carolina agreed with Wilson’s assessment, with Iredell calling the qualified presidential veto a “happy medium between the possession of an absolute negative, and the executive having no control whatever on acts of legislation.”
As president, George Washington believed that all constitutional legislation should pass without interference, meaning that the president had to accept legislation in toto. If any part of a bill was unconstitutional, the president’s oath of office obligated him to veto that legislation. In other words, the veto was to be used not as a partisan hammer but as a “security against the enaction of improper laws,” as Hamilton said in Federalist No. 73.
Wielding War Powers
What the founding generation feared most was a military dictator with power over the purse and the sword. The Constitution allowed Congress to guard the purse, but several critics argued that the clause making the president commander in chief of the U.S. military was ambiguous, leaving too much room for abuse. George Mason spoke for the majority of those opposed to the commander-in-chief clause when he said in the Virginia Ratifying Convention that he “admitted the propriety of [the president’s] being commander-in-chief, so far as to give orders and have a general superintendency,” but that “it would be dangerous to let him command in person, without any restraint, as he might make bad use of it.”
Proponents of the Constitution sought to reassure men like Mason that they had nothing to fear. At the Virginia Ratifying Convention, George Nicholas said that “the army and navy were to be raised by Congress, and not by the President.” At the North Carolina Ratifying Convention, James Iredell distinguished between the powers of the British king and those of the American president: “The King of Great Britain is not only the commander-in-chief of the land and naval forces, but has power, in time of war, to raise fleets and armies. He has also authority to declare war. The President has not the power of declaring war by his own authority, nor that of raising fleets and armies. These powers are vested in other hands. The power of declaring war is expressly given to Congress, that is, to the two branches of the legislature—the Senate, composed of the representatives of the state legislatures, the House of Representatives, deputed by the people at large. They have also expressly delegated to them the powers of raising and supporting armies, and of providing and maintaining a navy.” Iredell concluded that the power of commander in chief was “sufficiently guarded.”
The founding generation drew a clear distinction between “making war” and “declaring war.” No one objected to the president’s ability to repel “sudden attacks,” but even the staunchest advocates of a single executive with the power of commander in chief did not argue that the president could wage war unilaterally. Congress, as both Nicholas and Iredell emphasized, had the final say in war.
Of course, Congress has generally punted this responsibility over the past seventy years, but nothing has changed constitutionally. The only casualty in this long game of unconstitutional expansion of presidential authority over “war powers” has been American liberty. War has been responsible for the most substantial losses of liberty and the greatest expansion of federal power in the history of the United States.
Protect Your Liberty
Many members of the founding generation warned about the dangers inherent in a strong executive. During the ratification debates in 1787, one outspoken critic who went by the pen name “An Old Whig” urged his readers to reject the Constitution if for no other reason than it created an elected king: “If we are not prepared to receive a king, let us call another convention to revise the proposed constitution, and form anew on the principles of [a] confederacy of free republics.” New York governor George Clinton asked why Americans would be willing to accept a government that would “lead you into a system which you heretofore reprobated as odious . . . a monarchical government.”
Proponents of the Constitution understood the fears of excessive executive power and emphasized all the restrictions the document placed on that power. Hamilton famously summarized the originalist position on the executive branch in Federalist No. 69. His purpose was to outline the differences between the absolute monarch in Great Britain and the president in America. To Hamilton, the similarities stopped at the job description of “executive.” The American president is “elected by the people for four years,” whereas the British king is “a perpetual and hereditary prince.” The president is not the chief legislator; his power over foreign policy and the military is checked by Congress; he cannot rule by decree; and he has no power over “the commerce or currency of the nation.” Others echoed Hamilton in their sales pitch to the state ratifying conventions.
The originalist understanding is instructive. Rather than asking presidential candidates what they will do about X, Y, or Z, we should be asking where the president derives the constitutional authority to do X, Y, or Z. The president takes a solemn oath “to preserve, protect, and defend the Constitution of the United States.” The Constitution the president is defending is the one ratified by the founding generation in 1787 and 1788. No amendment has increased executive power. Our presidential model should be John Tyler, who vetoed unconstitutional legislation because he took an oath to protect the Constitution, not Franklin Roosevelt, who said that if Congress would not act, he would—unconstitutionally, of course.
We should not seek a president who is “dictator in chief”; we need someone who understands the constitutional limits of executive authority.
This is not a popular opinion today, but if the founding generation considered executive authority to be the greatest bane to liberty, we should, too. After all, “our guy” who abuses power will eventually hand the office over to “their guy” who abuses power. This should strike fear into the heart of any American who loves liberty.
Brion McClanahan, PhD, is the author of several books, including The Founding Fathers' Guide to the Constitution and, most recently, 9 Presidents Who Screwed Up American—and 4 Who Tried to Save Her.