2.6—Expansion of Presidential Power

The powers of the United States Presidency has expanded since the country’s first president. This section looks at a few key moments when the powers of the presidency expanded and how presidential administrations have justified their expansion of powers and abilities.

What you need to learn

How have presidents expanded their formal and informal powers over time?

Historical Interpretations of Presidential Power

Teddy Roosevelt model vs. William H. Taft

George Washington model vs. Andrew Jackson

Lincoln’s interpretation

Franklin Roosevelt

Contemporary Examples & Interpretations

President Johnson & the War Powers Act

Presidential powers under Trump

2.6—Expansion of Presidential Power

Since the creation of the office, United States citizens have come to expect more and more from the president. A constant push and pull on the office ultimately defines what a president can do. The framers set forth specific guidelines, yet presidents continue to challenge the constitutional framework. For example, not long after Donald J. Trump was sworn into office in January 2017, the debate about his powers intensified. As he tried to move his policy agenda forward, he met with resistance and tension from Congress, the courts, the media, and some protesting citizens. President Trump is not alone in facing resistance. Other presidents have also had conflicts as they increased the power of the office in their efforts to accomplish policy goals.

An Enhanced Presidency

The presidency is shaped by Article II, five constitutional amendments, federal law, Supreme Court decisions, customs, and precedents. This limited executive office was designed to carry out Congress’s policies. However, the office has become a powerful captain’s ship of state, buoyed by support institutions and American expectation.

Presidential Interpretation of Power

The presidential role has been shaped as unforeseen situations and events occurred during the nation’s history. Several key presidents have had larger roles in defining the powers of the chief executive.

Washington’s Example
For the first President George Washington, the Constitution provided a mere five-paragraph job description. He took on the role with modesty and accepted being addressed as “Mr. President” as a title, though some suggested more lofty labels.

Washington had some key accomplishments, primarily instilling public confidence in the nation’s constitutional experiment. Though he surely would have won a third term, Washington chose to leave government after his second term to allow others to serve and to allay any fears of an overbearing executive.

The presidents who followed Washington had moments of questionable initiative and international confrontation, but most of the early presidents faithfully carried out congressional acts, exercised the veto minimally, and followed Washington’s precedent to serve no more than two terms. Thomas Jefferson purchased the Louisiana Territory without congressional approval. James Madison marshaled the Congress to a second war against Great Britain. James Monroe established the Monroe Doctrine, a foreign policy assuring U.S dominance in the Western Hemisphere. For the most part, however, these powerful men let Congress fill its role as the main policymaking institution while the presidents executed Congress’s laws.

The Imperial Presidency

Yielding to Congress, however, began to fade as stronger presidents came to office. The president’s strength relative to that of Congress has grown steadily, with occasional setbacks, to create a kind of imperial presidency, a powerful executive position guided by a weaker Congress. Webster’s Dictionary defines an imperial presidency as “a U.S. presidency that is characterized by greater powers than the Constitution allows.” Historian Arthur Schlesinger Jr. popularized the term with his 1973 book of the same name. The book was published at the pinnacle of an overreaching Nixon presidency.

Enlightenment philosopher John Locke argued that legislative bodies are slow to respond in emergencies, so an executive should be occasionally allowed expanded powers. War, economic problems, and domestic crises have raised expectations for strong leadership.

Personality and Popularity

The dominating personality and popularity of the headstrong Andrew Jackson (1829-1837) brought about a noticeable shift in presidential power. Jackson was a successful military general who had led the southern expedition that forcibly relocated the Native Americans. As president, he blazed a path of executive dominance. He used the veto 12 times, more than any president had before. Jackson’s opposition to a national bank, combined with his forceful demeanor, created a rift between the president and other branches, while his popularity among farmers and workers in an age of expanded suffrage and increased political participation enhanced his power even more.

During the presidencies of chief executives who served after Jackson and before Abraham Lincoln, the powers of the presidency contracted. None of these eight presidents served more than one term, and two died in office. Franklin Pierce and James Buchanan, who preceded Lincoln, are noted for their lack of presidential leadership and clear policy agenda and for allowing the nation to drift toward civil war. Historians rank Buchanan and Pierce near the bottom of the list of effective presidents.

National Crisis

After Southern states seceded, Abraham Lincoln (1861-1865) once again expanded the presidency as he assumed sweeping presidential powers to save the Union and to limit slavery. Lincoln went as far as suspending habeas corpus, the protection against unlawful imprisonment, over fears that riots in Maryland might interrupt Union troop movement. Chief Justice Roger Taney issued an opinion that only Congress could suspend habeas corpus but had little power to enforce his views during the crisis of the Civil War. Historian Arthur Schlesinger wrote, “Lincoln ignored one constitutional provision after another. He assembled the militia, enlarged the Army and Navy beyond the congressional appropriation, suspended habeas corpus, arrested ‘disloyal’ people, asserted the right to proclaim martial law behind the lines, to arrest people without warrant, to seize property, and to suppress newspapers. Lincoln is generally excused for these constitutional violations because he stretched the powers of his office in the name of saving the United States and emancipating slaves.

On the World Stage

In the late 1800s, the United States began to compete on an international stage with the industrial and imperial powers of Europe. For example, to protect U.S. “open door” trade interest in China, President William McKinley sent 5,000 American troops to end the Boxer Rebellion.

As the United States became a world military and industrial power, Theodore Roosevelt (1901-1909) and Woodrow Wilson (1913-1921) stretched presidential power in the name of advancing the nation and serving the people. Roosevelt’s gallant Rough Rider background from the Spanish-American War and his brash, forward manner gained people’s respect. His progressive actions for environmental conservation and standing against corporate giants contributed greatly to both his reputation and his legacy. He strengthened the Monroe Doctrine with his foreign policy motto that the United States would “speak softly and carry a big stick.” During his tenure, he sent troops to Cuba and the Philippines, and he sent the U.S. Navy around the world. He also acquired property from Panama to build a canal.

Roosevelt’s so-called stewardship theory approach to governing presumed the president had a duty to act in national interests, unless the action was clearly prohibited by the Constitution. Like a good steward, Roosevelt insisted, the president should exercise as much authority as possible to take care of the American people, as Lincoln had done before him. “I have used every ounce of power there was in the office,” he wrote.

Democrat Woodrow Wilson (1913-1919) became a strong leader with an international voice. When he delivered his State of the Union report to the Congress, the first in-person address since John Adams, Wilson created for himself a platform from which to present and gain popularity for his ideas. His involvement in international affairs became inevitable as the United States entered World War I. “We can never hide our president again as a mere domestic officer; he wrote. “We can never again see him the mere executive he was in the [past). He must stand always at the front of our affairs, and the office will be as big and as influential as the man who occupies it.

The Turning Point

In a discussion of presidents who expanded the reach of the office, there is perhaps no better example than Theodore Roosevelt’s cousin, Franklin Delano Roosevelt (FDR) (1933-1945). He became president during the Great Depression (1929-1941), the most severe economic crisis in history. The large coalition that rallied behind him included people from nearly every walk of life who had been harmed by the Depression. His New Deal programs promised to bring the nation out of despair.

FDR arrived in Washington with revolutionary ideas that fundamentally changed not only the role of the presidency but also the role of the whole federal government. He recommended and Congress passed laws that required employers to pay a minimum wage, created the Social Security system, and started a series of public works programs to stimulate the economy. In trying to prevent a conservative Supreme Court from striking down his self-described liberal legislation, he moved to increase the number of seats on the Court with plans to place judges favorable to his proposals on the bench. This “court packing” plan failed, but it illustrates Roosevelt’s imperial tendencies. He ran for and won an unprecedented third term, in 1940, as the United States moved closer to entering World War II.

The foreign policy dilemma that resulted in war with Germany and Japan only strengthened FDR’s leadership and America’s reliance on him. As Roosevelt mobilized the nation for an overseas war, he overpowered civil liberties in the name of national security by authorizing the creation of “military areas” that paved the way for relocating Japanese Americans to internment camps. At the time, FDR acted as a wartime Commander in Chief, not as an administrator concerned about constitutional rights. What would have seemed autocratic in peacetime was largely accepted as an appropriate security measure during wartime. This action by Roosevelt was upheld by the Supreme Court in Korematsu v. United States (1944). Americans rallied behind their Commander in Chief and accepted most of his measures, electing him to a fourth term, although he died 82 days into it.

The Twenty-second Amendment

The Twenty-second Amendment, however, ratified in 1951, prevents any president from serving more than two consecutive terms or a total of ten years. If a person becomes president by filling a vacancy, that person can still serve two consecutive terms—hence the ten-year limit.

Contemporary Expansion of Powers

In the post-World War II era, the presidency has grown even stronger. Cold War tensions, military engagements abroad, and greater expectations to protect Americans in the age of terrorism have further imperialized the American presidency.

War Powers Act

President Johnson mobilized the U.S. Army into Southeast Asia in 1964. After reports of a naval skirmish off the coast of Vietnam in the Tonkin Gulf (which were later found to be untrue), Congress delegated power in times of war to the president with the Tonkin Gulf Resolution, allowing the president “to take all necessary measures to repel any armed attack against the forces of the United States to prevent further aggression.” Congressional leaders rushed through the resolution in a stampede of misinformation and misunderstanding. This rapid reaction to aggressive Communists led to a long and unpopular war.

In 1973, Congress decided to fix this political mistake and passed the War Powers Act. The law maintains the president’s need for urgent action and defense of the United States while preserving the war-declaring authority of Congress. The president can order the military into combat 48 hours before informing Congress. In turn, Congress can vote to approve or disapprove any presidential military action at any time, with the stipulation that the vote must take place within 60 days, or within 90 days if the Congress offers an extension.

The Commander in Chief’s authority often shifts with each president. In the war on terrorism, President Obama developed his own policy for targeting top al-Qaeda operatives. In certain situations, taking into account knowledge of their whereabouts and calculations of potential innocent victims, Obama gave the order to kill these terrorists. Scores were eliminated by armed drones.

In 2020, President Trump used his power as Commander in Chief to continue the war on terror with a drone strike that killed top Iranian general, Qassem Soleimani. The Trump administration claimed Soleimani was responsible for the deaths of hundreds of U.S. soldiers and was planning an “imminent” attack; therefore, the president’s decision was in the interest of the security of the United States. The president did notify Congress within 48 hours of the strike in accordance with the War Powers Act. Yet some members of Congress decried the briefing as lacking in details about the killing and the plans to move forward, making it clear that any further military escalation with Iran would require congressional approval.

Trump issued six so-called 48-hour reports, comparable to his predecessors. He ordered strikes against Syria in 2017 and 2018. The other, lesser-known reports came after moving troops into African nations to protect U.S. citizens.

Trump and Presidential Powers

Presidential powers expanded under Trump, Jonathan Rauch argued in The Atlantic, through his actions and congressional refusal to check the president. Trump ignored congressional appropriations violating Congress’ power of the purse. The Supreme Court expanded presidential powers when it upheld Trump’s travel ban of visitors from countries with high Muslim populations in 2018. In 2019, he withheld aid to Ukraine in an apparent attempt to discredit then-candidate Joe Biden. Also in 2019, when Congress allotted only $1.4 billion rather than the $5.7 billion Trump requested in Homeland Security spending to build a wall on the southern border, he declared a national emergency and dipped into Pentagon funds for the project. Yet, toward the end of his presidency while under investigation by Congress and the state of New York, the Court forced Trump to comply with subpoenas proving the president is not above the rule of law.