On Presidents Day, we’re taking stock of the evolution of the office itself. What has the presidency become? Where is it headed? And what does it say about us?
Guests
Barbara Perry, director of presidential studies at the University of Virginia’s Miller Center. (@BarbaraPerryUVA)
Saikrishna Prakash, law professor at the University of Virginia’s School of Law. (@UVALaw)
Jon Michaels, law professor at UCLA’s School of Law. (@JonDMichaels)
On Presidents Day, Understanding The Evolution Of The Office Itself
At around 9:00 a.m. ET on Monday, President Donald Trump tweeted “HAPPY PRESIDENT’S DAY,” including a singular rather than plural form of President. For many of Trump’s critics the typo was a Freudian slip, a symbol of what they see as a self-centered, authoritarian administration.
The Trump administration has attempted to expand the power of the executive, from declaring a national emergency in order to construct a border wall to assassinating a foreign government official without Congressional approval. But Trump’s predecessors also had far more power than the founding fathers ever imagined would be vested in the executive office. So, how did we get here?
Barbara Perry, the director of presidential studies at the University of Virginia’s Miller Center, said the executive office really began accruing power in the 20th century, after the Great Depression and World War II, crises that prompted Congress to entrust the executive office with more power than usual. And in the post-World War II era, the Cold War and the War on Terror after it were the basis for the continued expansion of executive power.
Perry added that this increase in power is also tied to the advent of modern media. Whether through radio broadcasts, televised rallies or Twitter, Presidents gained more power when they could speak directly to voters, becoming celebrities in the process.
“There’s a new form of presidency that comes along in the early 20th century, scholars have noted, and they call it the rhetorical presidency,” Perry said. “The founders really didn’t want that relationship, of direct relations between the people voting directly for the president.”
Jon Michaels, a law professor at the University of California, Los Angeles, said there were multiple benchmarks on the road to the current level of executive power. It wasn’t just congressional checks and balances that waned in their effectiveness; it was also bureaucratic ones that developed in response to the increasing authority of the federal government, and which were weakened under Presidents Reagan and Clinton.
In order to reign in executive power today, congress would have to eschew partisanship and act to legislate limits to presidential authority, according to Saikrishna Prakash, a law professor at the University of Virginia.
“I think if members of Congress could try to put aside the partisan perspective and not just ask whether the president is of the same party, but instead what will be conducive to the long term health of our democracy and conducive to the power of Congress, they are more likely to think about this systematically,” he said.
Prakash, Perry and Michaels joined Robert Siegel on On Point to discuss historical trends in executive power, constitutional limits on presidential authority and why congress is so hesitant to assert itself in checking and balancing the power of the president.
Interview Highlights
On the genesis of the modern, “strong” presidency
Barabara Perry: “That goes back to Teddy Roosevelt particularly, although we can even cite an example of George Washington claiming for himself what we see today being used, executive privilege, and saying, ‘I can keep secret, I can keep confidential the conversations that I have with my advisers, my papers,’ et cetera. There’s nowhere in article two of the Constitution that says the president may do that, but the Supreme Court has recognized it, as it did particularly in the Nixon tapes case, although with limitations. But it is the case that in the 20th century with Teddy Roosevelt, developed this concept of stewardship, of the active presidency. And he said that as long as a power isn’t forbidden to the president, I think the president should act with his as much energy, as Alexander Hamilton said, and vigor, as Kennedy might have said, as possible. As long as it’s not prevented in the Constitution.
“We see [Franklin] Roosevelt as sort of kicking off that modern presidency in the early 20th century. But it was only after Woodrow Wilson, the quiescence of the 1920s and the sense of having Harding and then Coolidge — and Hoover, for that matter — who were more passive presidents who did not think that the federal government or the presidency should have that much power. That was what, in essence, caused the defeat of Herbert Hoover in 1932. Because he wasn’t doing enough to ameliorate the effects of the Great Depression.”
On the role of military action in expanding presidential power
Saikrishna Prakash: “It’s delegation and ducking, and the ducking part comes from members of Congress, understandably not wanting to decide whether to send American troops into harm’s way. And I think that’s where sort of the modern understanding of war powers really comes to comes to a head in the Korean War, where President Truman describes the war as a police action and says that Congress doesn’t have a role to play. And there were members of Congress who pushed back, Robert Taft did, for instance. But they were solitary voices. And ever since then, presidents have claimed, well, you know, we’ve got authority as commander in chief to wage war. So it’s this reluctance on the part of Congress to assert itself, it’s the delegation to the president, and then there’s this third factor, which is the idea that the Constitution’s meaning can and ought to change over time.”
On the degradation of the power of government bureaucracy
Jon Michaels: “When Congress kind of receded to the background, we developed a professional civil service. And that’s kind of what I think is what has been missing from this conversation so far is, that there’s another back-end check on a president who reaches as far as any modern president, an imperial president does. And it’s supposed to be an interim-executive branch check. And it’s not in the Constitution, but neither is a vast administrative state. It’s an evolutionary move that we’ve kind of tinkered with the system as we’ve gone along. And what’s happened is we developed a rather robust bureaucracy that had the legal checks, had the expertise to push back on a president that’s acting in a hyper-partisan or abusive fashion. But fast forward another 30, 40, 50 years and we’ve grown tired of those checks and balances as well.
“This is a story that really starts under Ronald Reagan, who declared open war on bureaucrats. But then it was advanced and kind of solidified this move under Bill Clinton. He gave Reagan’s initiative bipartisan legitimacy, and he did a great deal to circumvent the civil service by hiring contractors who purportedly were cheaper. There were also more politically pliable. And the argument that they were putting forward was that bureaucrats are inefficient, and government should run like a business. The problem is government isn’t a business, and there’s other reasons that a government might fire an employee other than the bottom line, which is political disagreements or programmatic disagreements. And that’s what we’re seeing today. So now we have a president who presides over a, not a very deep state — a quite shallow state that’s been depleted, often demoralized over decades.”
Liam Knox wrote and transcribed this interview for the web.
From The Reading List
The New York Times: “William Barr Moves to Take the Reins of Politically Charged Cases” — “While Attorney General William Barr asserted his independence from the White House this week, he has also been quietly intervening in a series of politically charged cases, including against Michael Flynn, President Donald Trump’s former national security adviser, people familiar with the matter said Friday.
“Barr installed a phalanx of outside lawyers to reexamine national security cases with the possibility of overruling career prosecutors, a highly unusual move that could prompt more accusations of Justice Department politicization. The case against Flynn, who twice pleaded guilty to lying to the FBI in the Russia investigation, is a cause célèbre for Trump and his supporters, who say the retired general was ensnared in a ‘deep state’ plot against the president.
“The disclosures came as Trump made clear Friday that he believes he has free rein over the Justice Department and its cases, rejecting Barr’s public demand of a day earlier that the president stop commenting on such cases.”
The Washington Post: “The Repuba lican Senate just rebuked Trump using the War Powers Act — for the third time. That’s remarkable.” — “In a bipartisan rebuke of President Trump on Thursday, a Senate majority voted 55 to 45 to block the president from taking further military action against Iran — unless first authorized by Congress.
“Eight GOP senators joined every Democrat to protest the president’s decision to kill a top Iranian commander without complying with the War Powers Resolution of 1973.
“The Democratic House will no doubt agree to the Senate’s resolution and send it up to the White House. But President Trump has already promised a veto, and supporters of the resolution lack the two-thirds vote in both chambers required to override.”
The Washington Post: “Opinion: Trump’s authoritarian style is remaking America” — “Over the course of his presidency, there have been myriad warnings about President Trump’s authoritarian tendencies. He has played to the fears of his critics by blowing past the republic’s increasingly creaky system of checks and balances.
“And with the aid of a right-wing echo chamber, he has pushed forward a narrative that conflates national interest with his personal gain, patriotism with unflinching loyalty to the occupant of the Oval Office.
“As Trump embarks on a reelection campaign and basks in the aftermath of the Senate impeachment trial — in which, thanks to a Republican Party wholly captured by Trumpism, acquittal was seemingly always a fait accompli — he is adding to the strains on America’s polarized democracy. His calls this week for prosecutions of his perceived enemies and public attacks on federal judges and prosecutors involved in cases against his allies were so abnormal that it led to an unlikely rebuke from Attorney General William P. Barr, a Cabinet official largely viewed by Trump’s opponents as shamefully acquiescent.”
This article was originally published on WBUR.org.
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