Our disappointing regal presidency
What the nation will most need from the presidency in 2025 is less of it. But both the incumbent and his predecessor intend to intensify the anti-constitutional executive aggrandizement that has become a bipartisan tradition.
It preceded Donald Trump, whose presidential lawlessness was, like him, haphazard and opportunistic. Joe Biden’s presidency-without-limits has been ideological and perversely principled. Progressives, such as he has become late in life, are im- patient with institutional impediments (Congress and courts) to progress, meaning their policy preferences achieved by unfettered presidential actions.
Theodore Roosevelt, brimming with an energy born of supreme self-confidence, believed presidents are entitled to do whatever they are not explicitly forbidden to do. What he did because of animal spirits, Woodrow Wilson did from intellectual conviction. The first president to thoroughly criticize the nation’s founding, Wilson considered the separation of powers an anachronistic nuisance because “the President is at liberty, both in law and conscience, to be as big a man as he can.”
The urgent issue that is entirely missing from the 2024 debate is explained by University of Virginia law professor Saikrishna Prakash’s 2020 book “The Living Presidency: An Originalist Argument Against Its Ever-expanding Powers.” Without constitutional amendment or even proper public debate, the presidency has, by small but cumulatively transforming steps, become “more royal and powerful and less executive and duty-bound,” Prakash wrote. Because of this “creeping constitutional coup,” the presidency “has no enduring limits, no permanent frontiers.”
Modern presidents change the Constitution by repeatedly violating it. Repetition — e.g., waging war without Congress’s assent, or spending unauthorized funds — becomes self-legitimizing. It is no longer transgressive: Because of common practice, there no longer is a rule to transgress.
Presidential grandiosity and the humbling of Congress have been most astonishing regarding making war and making treaties. Remember President Barack Obama’s audacious cynicism when he wanted to wage war: He denied that the destruction of Libya’s forces by sustained U.S. bombing in 2011 constituted “hostilities,” which triggers the War Powers Act’s 60-day termination clock. Turning the act upside down, he said its requirement that Congress must approve warmaking after 60 days was actually a blanket permission for two months of unilateral presidential uses of force.
The Constitution’s treaty clause, requiring approval of two-thirds of the Senate, is, Prakash wrote, “a shell of its former self”: “If a president can transfer a billion dollars to an avowed enemy of the United States (Iran) in return for assurances about nuclear weapons, in a context where everyone refers to this arrangement as a ‘deal’ or ‘agreement,’ there are many things that might be done by sole executive agreement that in other ages would have been done by treaty.”
Domestically, note Biden’s ongoing violations of the Constitution’s appropriations clause by spending, without congressional authorization, $153 billion so far by forgiveness of student loans. Biden’s immediate predecessor “repurposed,” for building his border wall, money authorized for something else. And during the 2008-2009 financial crisis, when Congress provided only for the bailout of financial institutions, George W. Bush simply acted as though General Motors and Chrysler were financial institutions.
The presidential oath to “preserve, protect and defend” the Constitution has been, Prakash believes, emptied of meaning. Presidents issue “signing statements” when they sign legislation, asserting a kind of line-item veto (which the Supreme Court has held unconstitutional) by designating portions of the law the president may disregard on constitutional grounds. It has not taken long for signing statements to prove, in Prakash’s words, “that if presidents do something long enough, it becomes woven into expectations and will be said to be part of our law.”
The Founders, Prakash wrote, conceived of the president as an “instrument of Congress,” dutifully executing laws it passed. Now, however, the presidency is democratically monarchical, claiming a unique, direct and intimate connection with the demos. This status, first associated with the seventh president, Andrew Jackson, led to Wilson’s idea that modern presidents are grander than mere executives, given their dominance of legislative agendas and their opinion-shaping powers.
The presidency understood as (in Prakash’s words) “an untrammeled tribune of the people” condemns presidents to exalted lives of failure. Limitless presidential powers breed inflated expectations for presidential achievements, and hence a destabilized politics of perpetual disappointment.
In order to “recage the executive lion,” Prakash wrote, Congress need only exercise its powers that it has allowed to atrophy. But Benjamin Franklin discerned a “natural inclination in mankind to Kingly Government.” Congress evidently understands that the U.S. portion of mankind is not exempt from this inclination.