2.6 - Expansion of Presidential Power
The Unitary Executive Debate
The Framers originally gave the president relatively few independent powers.
Federalist No. 70: Alexander Hamilton argued for a unitary executive, a single person holding the office, since one leader can act quickly during a crisis or war. Hamilton called a strong president essential to protecting the country from foreign attacks, administering laws steadily, and securing liberty. This argument laid the groundwork for later expansions of presidential power.
- Date: 1788, one of the essays Hamilton wrote (as "Publius") to get New York to ratify the Constitution.
- Main argument: "Energy in the Executive is a leading character in the definition of good government." Hamilton said energy is "essential to the protection of the community against foreign attacks," to "the steady administration of the laws," to the protection of property, and to "the security of liberty." A weak executive means a weak government.
- Why one person: the ingredients of energy are unity, duration, adequate support (pay), and competent powers. One person acts with "decision, activity, secrecy, and despatch," while a council would argue and stall. A plural executive also tends "to conceal faults and destroy responsibility," since its members can blame each other.
- How it connects to presidential power today: presidents who expand their power, especially in war or a crisis, make the same kind of argument: the country needs one leader who can act fast. The idea that the president controls the entire executive branch (often called the unitary executive theory) builds on this essay too.
The debate
- Limited role: the Constitution only gives the president authority to enforce and administer laws Congress passes, not to make policy on his own. This preserves separation of powers and checks and balances.
- Expansive role: the president needs to act fast in a crisis, and as the only official elected by the whole nation, is expected to lead and take action reflecting the will of the people.
- Still debated today: the same argument plays out over executive actions presidents take when Congress won't act (like Obama's DACA program in 2012 or Biden's student loan plan, struck down in 2023), emergency powers, and military strikes ordered without a declaration of war.
Conflict in Foreign Policy
The clearest constitutional tension is over war powers. The Constitution makes the president Commander-in-Chief but gives Congress the power to declare war.
Because of advantages like nominating ambassadors, negotiating treaties, and directing intelligence agencies, Congress usually defers to the president on foreign policy. This is often the one area where presidents are genuinely as powerful as people assume.
Congressional attempts to check military power
- Power of the Purse: Congress can control funding for the armed services.
- Oversight: Congress can investigate presidential conduct related to war-making.
- War Powers Resolution (1973): passed over Nixon's veto after Vietnam to limit unilateral war-making. The president has to notify Congress within 48 hours of sending troops into combat and bring them home within 60 days (plus 30 days to withdraw) unless Congress approves. In practice, it hasn't had much bite: presidents of both parties have called it an unconstitutional limit on their Commander-in-Chief power, and Congress has rarely forced the issue.
Judicial and Constitutional Checks
- Executive Privilege: the president's claim of being shielded from congressional investigations and subpoenas.
- U.S. v. Nixon: the Court ruled executive privilege isn't absolute, so a general claim of confidentiality must give way when evidence is needed in a criminal trial.
- In 1974, the Court ordered Nixon to hand over the White House tapes for the Watergate investigation. He resigned about two weeks later.
- Line-Item Veto: in 1996, Congress gave the president power to veto parts of a bill.
- Clinton v. New York: the Court struck this down as unconstitutional, since only Congress can edit legislation.
- New York Times Co. v. United States (1971): the Nixon administration tried to stop newspapers from printing the Pentagon Papers, a secret history of the Vietnam War, claiming national security. In a 6-3 per curiam decision, the Court ruled the government hadn't met the "heavy burden" required for prior restraint (blocking publication ahead of time). Even when national security is involved, the president can't simply censor the press.
- 22nd Amendment: passed after FDR's presidency, establishing the two-term limit to restrict presidential power.
- Before FDR, presidents followed George Washington's two-term tradition. FDR won four elections (1932, 1936, 1940, 1944), so Congress proposed the amendment in 1947, and it was ratified in 1951.
- A president can be elected at most twice, and can serve at most 10 years (if they first finish up to two years of someone else's term).
- Why it matters: it was a direct reaction to fears that one person could hold the presidency too long, showing concern about the growth of presidential power.
Overall trend: despite these checks, presidential power has grown substantially over time, with the country increasingly treating the president as the nation's chief policymaker.
Big picture
The modern presidency has expanded well beyond what the Framers envisioned, an expansion Hamilton actually justified in Federalist No. 70 as necessary for crisis leadership. Congress retains formal checks like declaring war and controlling funding, but presidents dominate foreign policy thanks to informational advantages. Legal checks like U.S. v. Nixon and the War Powers Resolution show presidential power isn't unlimited, even as the long-term trend keeps pointing toward a stronger executive.