Presidential Power Scrutinized

This presidential transition, from President Donald Trump to President-Elect Joe Biden, represents a timely opportunity for Americans to become more familiar with the scope of presidential authority, as provided under Article II of the Constitution. Greater familiarity will empower citizens to scrutinize the words, actions and policies of the new administration in the spirit of their duty as Madisonian Monitors to hold government accountable.


President Biden won’t be writing on a blank canvass. He follows, immediately, a president whose view of executive power soared beyond the immodest assertions of power by predecessors over the past 75 years. In his claim of “absolute” and “unlimited” powers under Article II, President Trump occupied a remote outpost in the history of the presidency.


But his predecessors, Democrats and Republicans, liberals and conservatives alike, often advanced a theory of presidential power that culminated in the rise and entrenchment of the “Imperial Presidency.” They painted on that canvass an indefensible assertion of presidential authority that included a unilateral executive power to initiate military activities, including full-blown war, on behalf of the American people.


That category included Truman, Johnson, Nixon, Reagan, both Bushes, Clinton and Obama, who engaged in unconstitutional acts of presidential war-making in Korea, Vietnam, Cambodia, Panama, Bosnia and Iraq, among other countries. Those acts marked a flagrant defiance of the Constitutional Convention’s unanimous decision that Congress, not the president, would make the solemn decision to take our nation to war.


That historical canvass included as well the myth that, in foreign affairs, the president is Zeus, the repository of constitutional authority to control American foreign policy without congressional participation. Unfounded and sweeping claims of executive privilege have kept Congress and the American people in the dark about White House initiatives that lack legal authority and threaten the national interest. Executive orders and executive agreements have undermined the crucial role assigned to Congress in the conduct of American foreign policy, and laid waste to the separation of powers and checks and balances. Presidential circumvention of the Senate’s power to advise and consent, especially in treaty making and appointments, has exalted executive power at the expense of legislative power and oversight responsibilities. The litany of executive offenses against the Constitution is long and shocking.


The American citizenry, it may be said, has become virtually inured to assertions of presidential power and missives from the White House. Some claims, including the power of a president to pardon himself, find no support in our constitutional architecture, and should be dismissed, except for the novelty of the assertion. Others—the advancement of absolute immunity from prosecution—lack merit, but require consideration because of their repetition and entanglement in Article II provisions.


At this juncture, we have few insights into a Biden theory of presidential power. We can hope that his genuinely modest and humble nature suggests a more modest view of executive authority, one resembling, say, the view of President James Madison, who was inclined to reject aggrandizement of power in favor of pointing out congressional responsibilities and duties. But that may be wishing for too much. After all, it is immensely difficult for an official to deny powers that have been aggrandized by the office he occupies. In this age of hyper-partisanship, a refusal by the president to assert power can easily be portrayed as weakness, a characterization that office holders at every level seek to avoid. If nothing else, it is not too much to expect of President Biden, a firm rejection of President Trump’s unprecedented assertion of absolute and unlimited powers.


The arguments and controversies surrounding the exercise of executive power reflect, in part, the citizenry’s own historical difficulties in drawing in the reins of power. It is common for partisans to ignore constitutional violations by leaders of their own party. Who wants to hobble the flag bearer? But there is a better way--a constitutional way--for American citizens to carry out their responsibility to hold governmental leaders accountable to the Constitution and the rule of law.


This path requires citizens to better understand the constitutional powers vested in the presidency. Once understood, the citizenry will be empowered to identify acts that violate the Constitution and demand remedies. In the weeks ahead, we will plunge into an analysis of Article II of the Constitution. In this journey, let us do our best to reject partisanship and party favor.

David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.

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