Expansion of Presidential Powers (SHANNONDELL Valley Forge)

This in-person discussion will explore the increases of presidential powers, as they have evolved since the constitution was written, and especially recently. Many enhanced powers have been granted legitimately by Congress, the Supreme Court, or by constitutional amendment. But a few aggressive presidents have expanded their powers with dubious legal justifications – and gotten away with it.

Presidents have long claimed they have constitutional powers to take immediate action during emergencies. According to Elizabeth Goitein at the Brennan Center for Justice, “Such claims have underpinned some of the worst abuses of executive power in this country’s history.” Read her article, “Emergency Powers: A System Vulnerable to Executive Abuse” at https://www.brennancenter.org/our-work/analysis-opinion/emergency-powers-system-vulnerable-executive-abuse.

Here is a background piece on how presidential limits of power have expanded. In 2019, a group of Harvard Law School professors discussed Donald Trump’s efforts to expand his powers. They compared Trump to earlier presidents who may have abused their powers. See “Presidential Power Surges,” available at https://hls.harvard.edu/today/presidential-power-surges/.

One observation by Harvard professor Noah Feldman: “Most presidents try to expand their powers incrementally, and Trump has tried to do it non-incrementally.” Some of the presidents who asserted (or tried to assert) powers not granted by law or tradition included Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, Franklin D. Roosevelt, Richard Nixon, George W. Bush, and Barach Obama. Even as presidential powers were increasing, there were new limits imposed on presidents to restrict abuse of power, especially after Nixon’s Watergate.

Michael Klarman, a Harvard legal historian, says the value of “the rhetorical presidency” is significant: “I don’t think FDR could’ve had the power he did if he didn’t have the ability to do his radio chats, and Trump wouldn’t be president if it weren’t for Twitter and his ability to reach tens of millions of people directly.”

The last four presidents (Bush, Obama, Trump, and Biden) expanded their powers by issuing executive orders that were controversial. They bypassed Congress but were sometimes blocked by the courts.

The expansion of presidential power over administrative agencies has been a source of controversy since Ronald Regan was president. Some conservatives have argued that Article 2 of the constitution gives the president unlimited authority to personally direct all government workers. This is called the “Unitary Executive” theory, and Trump’s advisors have claimed it entitles him to command all the federal agency and their employees without interference by Congress.

Trump also argues that he has the right to shut down any agency and to fire employees because he thinks they are inefficient, lazy, or liberal. Trump believes most bureaucrats will not follow the policies of the newly elected regime. Some conspiracy theorists refer to these supposedly entrenched bureaucrats as the “Deep State.”

A 2021 book by Yale political science professor Stephen Skowronek and others shows how the “Deep State” and “Unitary Executive” can combine to expand presidential powers even further. The book is “Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive.” You can watch a recorded discussion of the book by its authors at https://youtu.be/eQAlYFUn5lY?t=236. Skowronek’s presentation takes less than 15 minutes, but if you have time, the full recording with Q&A takes about an hour.

Another article looks with alarm at Trump’s application of “Unitary Executive” theory in the first month of his second term. Read “The Extreme Legal Theory Behind Trump’s First Month in Office” by Michael Waldman of the NYU Brennan Center for Justice. The link is https://www.brennancenter.org/our-work/analysis-opinion/extreme-legal-theory-behind-trumps-first-month-office.

Some questions to ponder:

• Are Trump's declarations of emergency legitimate justifications for bypassing Congress in bombing Iran, imposing tariffs, or closing agencies?
• Is the “Deep State” real or is it just a conspiracy theory?
• Do presidents now need more authority because the country and the federal government are much larger and more complex?
• Should the efficiency and effectiveness of the federal workforce be improved? Is the president’s use of DOGE justified?