12.6: The Imperial Presidency?

The Founders who designed the presidency at the Constitutional Convention knew that George Washington, a nationally beloved war hero, would almost certainly be the first person to occupy it. They trusted Washington not to make himself a tyrant. Still, they settled on a limited chief executive because they did not know what kind of president would succeed him.

Over America’s history, the presidency’s power has gradually increased as individual presidents have stretched the boundaries of the office. Thomas Jefferson authorized the Louisiana Purchase in 1803, practically doubling the size of the country without congressional approval. Abraham Lincoln mobilized the U.S. military to fight the Civil War while Congress was not in session. Theodore Roosevelt’s aggressive diplomacy in Latin America and his fifth cousin Franklin’s ambitious New Deal both tested the limits of their authority. These and many other large and small presidential actions expanded the presidency beyond its original limits.

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 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” in 1944. major development in the military power of the presidency occurred in 1973 when Congress passed the War Powers Act. This law permits the president to initiate military actions without a congressional declaration of war or authorization for use of military force. The president must inform Congress of such actions within 48 hours of when they 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 KoreanWar, the Vietnam War, the Persian Gulf War, the War in Afghanistan, and the IraqWar – were 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 become an “imperial presidency,” in which the president essentially rules as an emperor would with mostly unchecked authority. Modern presidents do have powers that dwarf those of their predecessors. They also have ample ways to circumvent Congress, such as signing an executive order (instead of a law) or an executive agreement (instead of a treaty). The controversial 2024 Supreme Court case Trump v. United States, which ruled that presidents have absolute immunity from criminal prosecution for their official acts, was widely criticized for contributing to the presidency’s imperial nature.

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 the current president. In 2016, 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. His successor, Donald Trump, was able to withdraw from the agreement in 2017 without congressional approval, because it had never been ratified as a treaty. Trump’s successor, Joe Biden, was able to reenter the agreement just as easily in 2021, only for Trump to again withdraw from it in 2025. Furthermore, although modern presidents issue many executive orders (as shown in Figure 12.3 below), most are symbolic or procedural. Executive orders commemorating holidays or historical events hardly seem like major power grabs.

Even though the executive branch has increased its power since the 18th century, it would be wrong to suggest that this increase was entirely the presidents’ doing. Many powers added to the executive branch’s arsenal since the days of George Washington have not been seized but rather handed over willingly by Congress, usually to achieve some policy objective Congress would not or could not achieve on its own. 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. Congress and the public frequently complain about presidents acting like kings, but both have enabled unilateral presidential behavior over the years.

Figure 12.3: Total executive orders by president (Source: Federal Register)