12.5: The Imperial Presidency?

The Founders who designed the presidency at the Constitutional Convention knew at the time that George Washington, a war hero and nationally beloved figure, would almost certainly become the first person to occupy it. They trusted Washington to not abuse the power of the office to make himself a king or tyrant, but they nevertheless settled on a limited chief executive because they did not know who would succeed him. Wary that a powerful position would naturally attract the power-hungry, they assigned most of the Constitution’s powers to Congress, which seemed less susceptible to tyrannical decay.

Over America’s history, the presidency’s power has gradually increased as individual presidents have stretched the boundaries of the office. Thomas Jefferson’s authorization of the Louisiana Purchase without congressional approval, Abraham Lincoln’s mobilization of the U.S. military to fight the Civil War while Congress was not in session, Theodore Roosevelt’s aggressive diplomatic efforts in Latin America and elsewhere, and Franklin D. Roosevelt’s expansive New Deal — along with many other large and small deeds by these and other presidents — were all unprecedented executive actions which tested the limits of the office’s constitutional authority.

President Franklin D. Roosevelt, whose New Deal represented a substantial increase in the power of the presidency, addresses the nation over radio in one of his “fireside chats.”

A major development in the military power of the presidency occurred in 1973 when Congress passed the War Powers Act, permitting the president to initiate military actions without a congressional declaration of war or authorization for use of military force. The act requires the president to inform Congress of such actions within 48 hours of when these actions commence, and they cannot last longer than 90 days (60, plus 30 for withdrawal) unless Congress approves an extension. Still, this flexibility, coupled with the fact that Congress rarely declines presidential requests for authorizations for use of military force, affords the president considerable unilateral military power.

The last time the United States declared war on another country was in 1942, when Congress issued declarations of war against Bulgaria, Hungary, and Romania as part of World War II. All so-called “wars” involving the United States since then — including the Korean War, the Vietnam War, the Persian Gulf War, the War in Afghanistan, and the Iraq War — were not technically wars but rather military engagements with some form congressional support short of a declaration of war.

Critics point to this and other presidential powers as evidence that the executive branch has evolved into an “imperial presidency,” in which the president essentially rules as an emperor would with mostly unchecked power. The powers wielded by modern presidents do indeed dwarf those of their predecessors, and presidents have ample options at their disposal for circumventing Congress, such as signing an executive order (instead of a law) or an executive agreement (instead of a treaty) to achieve their policy objectives without the need for congressional approval.

However, there are limits to what presidents can do on their own. Executive orders and executive agreements can function like laws and treaties, but they also lack durability, only lasting as long as they have the support of whoever happens to be president at the time. In 2016, for example, Barack Obama entered the United States into the Paris Agreement on climate change over the Senate’s objection by signing it as an executive agreement rather than a treaty. His successor, Donald Trump, was able to withdraw from the agreement without the need for congressional approval, because it was never ratified as a treaty — and his successor, Joe Biden, was able to reenter the agreement just as easily. Furthermore, although modern presidents issue many executive orders (as shown in Figure 12.2 below), most are symbolic or procedural, involving minor issues like commemorations of holidays or historical events rather than major power grabs.

Figure 12.2: Total executive orders by president (Source: Federal Register)

Even though the executive branch has increased its power relative to the legislative branch since the 18^th century, it would be wrong to suggest that this increase was entirely the doing of presidents. Many of the powers added to the executive branch’s arsenal since the days of George Washington have not been seized by power-hungry presidents but rather handed over willingly by Congress, out of a desire for the president to achieve some policy objective they would not or could not achieve themselves. Meanwhile, the American people have generally approved of bold, decisive presidential actions, especially when contrasted with the perpetual logjam that so often seems to paralyze the legislative branch. Although Congress and the public often complain about presidents acting like kings or tyrants, both have enabled unilateral presidential behavior over the years.