The Contemporary Presidency: The Decline and Resurgence and Decline (and Resurgence?) of Congress: Charting a New Imperial Presidency

"How Much Power Should They Have?" demanded the cover of Newsweek as 2006 began, as President George W. Bush and Vice President Dick Cheney glared out from underneath the headline. The question was prompted by a flurry of holiday season revelations centered on aggressive claims to, and use of, unilateral presidential powers. These ranged from the detention and treatment of imprisoned terror suspects around the world to phone taps placed on Americans without a court warrant. "We've been able to restore the legitimate authority of the presidency," the vice president insisted; others worried that the Constitution's checks were being unbalanced and that the "imperial presidency" of the Vietnam/Watergate era had risen from the grave (Cheney 2005; Rudalevige 2005; Schlesinger 1973). Framing Questions However timely, Newsweek's query was of course hardly new. Indeed, little at the Constitutional Convention of 1787 provoked more debate than the shape and scope of the executive branch. Delegates had to determine how the president would be selected, how long he should serve, whether he should be able to run for office more than once, how much power he should have--even whether the president would be a "he" or a "they." (1) Some of the Framers were unconvinced of the need for an executive branch in the first place. Others thought that executive power must be strictly divided, to impede future tyranny: for them, in Virginia Governor Edmund Randolph's phrase, a single executive was "the foetus of monarchy" (Rakove 1996, 257). And monarchy, of course, was what the Framers wanted to avoid. In the end, the framework of presidential power was left largely in outline form, to be worked out in practice. Consider the very first sentence of Article II: "The executive power shall be vested in a President of the United States of America." What is "the executive power"? What might it allow the president to do? Here the document is silent. In other places the president was given a limited array of specified powers, many of them further truncated by a sort of congressional asterisk--the president can finalize treaties, or appointments, only with Senate approval; the execution of the law assumes its legislative passage; no money can be spent that is not first appropriated by Congress. How these shared powers might work was itself not clarified; the expectation was, in Madison's famous phrase from the Federalist, that interbranch interaction would allow institutional "ambition ... to counteract ambition." The conflict that implied began immediately, when Treasury Secretary Alexander Hamilton and Congressman James Madison argued over the scope of President Washington's unilateral authority. Reduced to its essence, the dispute was--and is--relatively straightforward: is a president limited to the specific powers affirmatively listed in the Constitution or granted in statute, or can he take whatever actions he deems in the public interest so long as those actions are not actually prohibited by the Constitution? Theodore Roosevelt's iteration of Hamilton's position put it clearly: "My belief was that it was not only [the president's] right but his duty to do anything that the needs of the Nation required unless such action was forbidden by the Constitution or by the laws." Roosevelt's successor, William Howard Taft, clarified the opposing view. "The President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied within such express grant as proper and necessary to its exercise," Taft wrote. "There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest" (Pyle and Pious 1984, 70-71; Roosevelt 1985 [1913], 372). Whatever the Framers' true intent, the Hamiltonian position won out over time. The growth in the size and scope of government during and after the Great Depression, and the national security apparatus built during World War II and the Cold War, effectively settled the argument. …