Executive Power, Presidential Theories, and Constitutional Conflict
Stewardship Theory and the Activist Presidency
Definition and Origins:
* Advocated by President Teddy Roosevelt and Woodrow Wilson.
* Contrasts with the theories of the nineteenth century, most notably the theory articulated by President Taft.
* It is described as the "activist alternative" to more restricted views of presidential power.Authority and Philosophy:
* Source of Authority: Based on the notion that the United States Constitution is a document filled with ambiguity and possibility.
* While rules exist, it posits that the Constitution is primarily made up of principles subject to interpretation.
* Plot Philosophy: Rooted in the philosophy of "positive government."Duties of the Executive:
* Government has an affirmative duty to make laws that assist citizens.
* The purpose is to "do good by the citizenry" and improve the lives of citizens in any way possible.
* The Chief Executive is viewed as a "steward of the people."
* The President is bound to do everything they can for the people unless a specific statute or the Constitution explicitly prohibits the action.Inherent Powers:
* The theory asserts that the President possesses inherent powers.
* Woodrow Wilson, noted as the only political scientist to become President, argued that the Executive is the sole person elected by the entire country.
* The President embodies the public interest and serves as both a political and moral leader.
* In times of crisis, the President can draw upon these inherent powers to act.
Prerogative Powers and Extraordinary Circumstances
General Application:
* Prerogative power typically occurs during times of war.
* Based on the philosophy of John Locke: Executive power allows an individual to act according to their own discretion if it is in the best interest of the citizenry overall.Distinction from Stewardship Theory:
* Prerogative power acknowledges that the Executive can do what is legally prohibited if it is for the best of the country, particularly during wartime.The Abraham Lincoln Example:
* During the Civil War, President Abraham Lincoln declared martial law in areas of the country where no active war was occurring.
* He declared a state of emergency in places such as Indiana and Kentucky, despite the fact that courts were open and no direct conflict was present in those specific locations.
* Justification: The "apparent lawlessness of the means" is justified and outweighed by the "public good of the ends."
* Constitutional Rationale: The President acts as Commander in Chief with a duty to make sure the laws are faithfully executed.
Unilateral/Unitary Executive Theory
Origins and Evolution:
* This theory represents complete executive power.
* It emanated in the under the Reagan administration as an effort to gain control over the bureaucracy.
* The original focus was on the appointment and removal of executive agency officials to strengthen presidential power relative to regulatory agencies.Constitutional Foundations:
* Article 2, Section 1 (Vesting Power): "Executive power is vested in the president of The United States." Advocates argue this means the President controls the entire executive branch.
* Article 2, Section 2 and 3: Functions as Commander in Chief and the duty to ensure all laws are faithfully executed.Historical and Modern Context:
* The historical claim rests on the idea that the British Crown gave the King unlimited authority to appoint and remove officers.
* In the modern era, the theory extended through the Bush administration (unilateralism and war) and further under Trump, where it is applied to "everything."
* Supporters include Edwin Meese (Attorney General under Reagan), Justice Samuel Alito, Chief Justice Roberts, and Justice Thomas.
The Appointment and Removal Power
Constitutional Text:
* Article 2, Section 2, Clause 2: Spells out that the President has the power to appoint with the "advice and consent" of the Senate. It does not grant complete power.
* Congress can appoint "inferior officers" as they see fit.
* The Constitution says nothing about removal of officers.The Bureaucracy and the Merit System:
* Spoil System: Prior to , positions were given to "political hacks" or whoever the President liked.
* Merit System (1883): Created to ensure the bureaucracy consisted of individuals with technical expertise (e.g., environment, railroads, nuclear power, Food and Drug Administration, agriculture) based on training and testing.
* Civil Service Protections: Traditionally, individuals in civil service could not be removed unless they engaged in negligent or unlawful conduct.Key Case Law on Removal and Oversight:
* Morrison Case (1988): The Rehnquist Court recognized Congressional power in the employment area. It allowed courts to appoint special prosecutors to investigate executive abuses.
* The Court ruled a special prosecutor is an "inferior officer," not a principal officer.
* Article 2, Section 2, Clause 2 allows Congress to make inter-branch appointments.
* This does not violate Article 3 because Congress has the discretion to define the nature and scope of such duties.
* It does not violate separation of powers because the duty is limited and the Attorney General can remove the counsel for "good cause."
* Humphrey's Executor (1935):
* Involved President Roosevelt attempting to replace a member of the Federal Trade Commission (FTC) whose policies were not favorable to the New Deal.
* The FTC is a group commission of approximately six or seven people.
* The Court ruled unanimously that the President cannot dismiss a commissioner without "good cause" or by violating a congressional act.
* Significance: Acknowledged that many agencies have "quasi-legislative" (rulemaking) and "quasi-judicial" (investigatory) powers. This stood for years.
* Zeila Case (2020):
* The Roberts Court began limiting Humphrey's.
* Dealt with the Consumer Financial Protection Bureau (CFPB), created after the financial crisis to protect consumers from "greedy bankers."
* The Court ruled the President can remove a single officer in charge of an executive agency "at will."
* Exceptions: Removal remains restricted if it is an inferior officer with limited duties (Morrison) or a multi-member board (FTC).
* Trump Versus Slaughter (2026):
* A current case assessing if Trump can fire Rebecca Slaughter, a member of the FTC, due to political disagreements.
* If the Court rules in Trump’s favor, Humphrey's is considered "completely gutted."
Executive Power in Foreign Affairs
Founding Debate:
* Madison: Argued that power in foreign affairs is shared between Congress and the President.
* Hamilton: Argued the Executive has expertise, knowledge, confidential sources, and secret information, and should therefore have complete control.The Youngstown Case (1952):
* President Truman attempted to take over steel mills for national security reasons during the Korean "police action."
* The Court ruled the government cannot overtake private companies.
* The Three-Part Framework of Presidential Power:
1. Maximum Power: When the President acts pursuant to expressed and implied powers and delegated power from Congress.
2. Zone of Twilight: When there is concurrent authority between President and Congress; distribution is uncertain, and inaction may invite independent action.
3. Lowest Ebb: When the President acts against the Constitution and Congress; requires careful court scrutiny.US Versus Curtis Wright:
* Congress passed a resolution forbidding arms sales to Paraguay and Bolivia; a company sold arms anyway.
* Justice Sutherland sketched a theory of federal power:
* Domestic Affairs: Congress has primary authority based on enumerated and implied powers.
* Foreign Affairs: The Executive has primary authority through treaties, compacts, and conquest. These are inherent powers of a nation-state.The Iran Contra Affair (Early 1980s):
* Secret US arm deal with Iran; traded missiles and arms for hostages.
* Funds (amounting to ) were used unlawfully against the Boland Amendment which forbade such actions.
* Congressional Hearings Views:
* Oliver North/Executive View: Based on Curtis Wright, the Executive has complete authority in foreign affairs, checked only by elections and the "purse."
* Senator Mitchell/Democratic View: Curtis Wright only permits greater latitude for Congress to delegate power, but within well-defined boundaries (Hampton principle).
War Powers and Modern Conflict
Constitutional Tension:
* Article 1, Section 8, Clause 2: Congress declares war.
* Article 2, Section 1, Clause 1: Executive is Commander in Chief.
* The last formal declaration of war was World War Two.Erosion of Congressional Power:
* The Executive is a single person with a small cohort, allowing for faster decision-making than the "mess" of Congress.
* Advantaged by centralized military advice, secrecy, and access to information.
* Technological Factors: Instant communication and AI make formal declarations difficult due to the lack of time.
* Congressional Failure: The Gulf of Tonkin Resolution and Iraq military force authorizations gave too much power with insufficient oversight.War Powers Resolution (1973):
* Passed in response to President Nixon's unilateral bombing of Cambodia.
* Requires the President to send a report to the President Pro Temp in the Senate and the Speaker of the House within hours of introducing troops.
* The report must explain circumstances, constitutional authorization, and estimated scope/duration.
* Current Context: Regarding recent actions, the -day window is expiring this Friday (mentioning an Edwin Chamorinsky article in the New York Times). There is concern that the War Powers Resolution is being ignored.
Questions & Discussion
Question: Since the unilateral theory started in the Bush and Reagan era, would the speaker say they were advocates of it?
Answer: They were advocates of it originally, focusing on its original form for appointment and removal. However, they might not necessarily support its present form, which has expanded significantly under Trump (except for the "MAGAs"). The speaker finds the modern expansion problematic because it undermines the need for a Constitution and separation of powers.
Audience Interaction on Presidency: A student suggested the speaker should run for President. The speaker declined, stating they could not make hard decisions regarding killing people and would instead advise peace and kindness.
Incidental Event: A student asked for a brief pause to go to the bathroom, which the speaker allowed.