By Will Bellaimey with Elizabeth Gracen:
For the latest in my series of conversations with Will Bellaimey, history teacher and co-creator of the podcast All the Presidents, Man, we sat down to talk about the powers of the executive branch. News had broken of protesters in Portland being detained by federal agents under suspicious circumstances, and questions were swirling about the possibility of the president trying to delay the election. I wanted to know if all of this was new, and what history might tell us about the extent and limits of presidential power in a moment of crisis.
Elizabeth Gracen: I started doing research on the history of “executive privilege,” but I guess what I'm more interested in is the power of the presidency in general—the office. Especially with what's happening in Portland and the deploying of the military to other cities. I seem to be having a similar conversation with most friends about the ability of our current president to bring down democracy if he were elected again. Just how much destruction can a president wreak on the country? What can a president do to the Constitution that is irreparable? I'm curious about that and the history of executive power, because obviously this is not the first time in history that something really dramatic has happened where we've had to deal with it as citizens, but it feels, because it's in our time, it feels so doom and gloom. I'd love for you to put the powers of the presidency into historical perspective.
Will Bellaimey: Well Executive Privilege is very complicated. It is part of the powers of the president, and I think the most important thing to understand about the powers of the president is that before the United States had George Washington, there wasn't a job that was really equivalent to the president anywhere in the world. There were kings, who in some places had absolute power given by God. They were not limited in any way—pharaohs, emperors, and czars are all versions of that kind of concept. So when the king gives you an order, there's no way for you to not do it.
An exception was within Britain where there was already the idea of a limited or constitutional monarchy, which says that the king has absolute power in certain areas, but in others it's more limited. And I guess the most obvious limitation that the founding fathers would have been thinking about at the time was the idea that the power of the purse, meaning the power of controlling the money, was in the hands of Congress. I think it might've been Hamilton who described it as a sanitized monarch, which is to say, we're keeping the essential idea of this person, but we're just taking the constitutional monarchy even further. And we're saying, well, he's only going to serve for a certain amount of time. And that person is chosen by the people, which is obviously an important difference. But the idea of executive power is, from the very beginning, something that people disagree about—what it should look like.
EG: What is your definition of executive power?
WB: The most basic way that I would teach it to an AP gov class is that Congress writes the laws, and then it's the job of the president and everyone who works for him or her to carry out those laws. There's also certain areas in which the president acts outside the law—certain situations where the president has to do something and there isn't a law that says what they're supposed to do. We could divide those into a couple different categories. One would be the sort of ceremonial elements of being president—like meeting and greeting foreign dignitaries and choosing the drapes at the White House, meeting the NCAA champion rowing team. And I only mention those because I think it's important to remember that in Britain, those kinds of jobs would be done by the king or queen. That's the honor, right? Until fairly recently, the prime minister, who is directly elected by the people and manages a lot of day-to-day government stuff, doesn't do that kind of ceremonial stuff.
EG: So there's an extent to which the president is like half king, half prime minister?
WB: Right, and let's not fall into the trap of thinking that we went right from having a king to having a president. We went from king to, depending on how you measure it, five to fifteen years of having basically just a Congress trying figure it out. And usually when we talk about the Articles of Confederation, we're talking about a switch from state power to national power, but we're also talking about a shift from legislative power to executive power. And actually both of those are going to be important as we talk about the evolution of executive power, because the federal government has become more powerful over time. And also, within the federal government, the executive branch has become more powerful.
EG: What was the original intention of the Founding Fathers when it came to defining the job of the president?
WB: In the Federalist Papers, Alexander Hamilton said that there were three things needed to make a president. One that Hamilton talked about was the “energy” that a president should possess—an energetic way of talking to people, getting things done, drawing focus, drawing attention.
WB: Right. When you look at a big group of arguing congressmen, you don't feel that kind of energy. Everyone gets so frustrated with how long it takes everything to go through Congress. They wish that everything could be done by executive order. That is getting attracted to that kind of energy.
The second word that Hamilton talks about is “secrecy.” And this is where executive privilege eventually comes in. Hamilton said that it's important for there to be someone in the government who can have conversations with foreign leaders and keep those private so that we can build trust with other countries, so that we can make deals and do the kinds of things that you can't do by committee when anybody might have a lot of motivation to leak out that information.
EG: And that is where executive privilege comes in.
WB: At least in part. At least Hamilton was recognizing the fact that it can be helpful to have things that are kept secret.
EG: “The room where it happens . . .”
WB: And then the third word that Hamilton uses is “dispatch”—which would best be translated into modern English has “speed.” The president can get things done very quickly. Congress, under the Constitution, has the power to declare war. The president has the power to repel sudden attacks as commander in chief of the army. So if Canada were to invade, we wouldn't have to wait for Congress to get together and vote for a declaration of war on Canada for the president to order troops to start defending Niagara Falls or wherever it is that those Canadians are coming in.
EG: What an image. Canadians invading America!
WB: Hamilton is the patron saint of executive power in this country because he loved the idea of a powerful president. And I think part of that was because he was best buds with George Washington—who everybody knew was going to be the first president; and, in part, because Hamilton always thought he was going to get to be president at some point. The version of Hamilton that we all know from Lin-Manuel Miranda who is fast moving, getting stuff done, and making deals himself is something that certainly goes well with an executive branch position.
EG: And he spent his entire political career in the executive branch.
WB: Right, but there were also people who are often associated with Thomas Jefferson who were skeptical of either federal power, like power of the federal government versus the states's power, or of the legislative, or both. But one of the patterns that you continue to see throughout American history is that people who are critical of executive power become less critical of executive power once they become president.
EG: So Jefferson was concerned about how powerful the presidency would become became president . . .
WB: When he becomes president, he negotiates the Louisiana Purchase without the approval of Congress. He invokes executive privilege to hide documents regarding Aaron Burr’s trial. He makes a lot of sweeping decisions on his own.
EG: And did he ever justify or even address his changed perspective?
WB: It basically came back to these same basic principles that were there from the beginning. That it was helpful to have somebody who can move quickly, who can act with secrecy, especially in foreign policy—as he viewed the Louisiana Purchase to be. Someone who has the energy to drive national policy.
EG: As Americans, we're steeped in this idea that we want our leaders to be charismatic—that energy Hamilton talked about. That's exactly what we look for.
WB: True, but we also claim to say that what makes us great is that we're a democracy and that we don't have a dictatorship. As you suggest, we have some real cultural instincts toward this strongman kind of leadership that are always intentioned with both the culture of democracy and with a system that, while a lot more executive focused than the Articles of Confederation, still has quite a few limits on the presidency, and successive presidents have come up against them in a lot of different ways.
EG: Then, of course, we have the system of checks and balances, but you said the executive branch has become more and more powerful. Are you saying that Congress as the legislative branch is less powerful now?
WB: Well, yes. I think by any measure, that's true—but it's not a straight line. There are times in American history where the presidency becomes way more powerful. And there have also been times where Congress has been incredibly powerful. An interesting example of this would be the Civil War.
Powers of Congress are laid out very specifically in the Constitution; Article One, Section Eight lists 25 different powers that Congress has and includes the phrase “necessary and proper,” which basically says that Congress can also do anything else that it sees necessary and proper to carry out those functions. We could have a conversation here about that in comparison to states, because over time, what you've seen is the federal government and especially Congress becoming more powerful and using that necessary and proper clause to take more power from the states. And at the same time, you have an executive branch whose powers in the Constitution are very vague. There are only two clauses that I feel are important for this. There's stuff about the president choosing Supreme Court justices and ambassadors and things like that. But the two words that have been kind of the necessary and proper clause of the executive branch are “executive power.” Those are the first words in Article Two. It says “the executive power shall be vested in a president.” Some people would say that's just like an intro sentence, but others have said, no, there is something called the “executive power.” So we can define that however we want. We can talk more about that when we get to Dick Cheney. There's also the phrase that the president is the commander in chief.
Over time, the federal government has become more powerful for basically two reasons: because it's passed a lot more laws and regulations through Congress, which means that the executive power becomes way more important because it's executing a lot more laws and regulations than it used to, especially after the economy became sort of a national focus. And also the commander in chief clause is important more and more as the country becomes a bigger and bigger military powerhouse and ultimately has an empire around the world.
To Be Continued . . .