Historically Speaking: Executive Power & The Imperial Presidency—Part 2

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. When we spoke, the headlines told 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. Obviously, the news has quickly moved on, but the topic of "Executive Power" is still on our minds.

Join us for Part 2 of this three-part series or get caught up by starting here.

EG: So you mentioned Lincoln and the Civil War.

WB: Lincoln is an interesting moment for this because when the Civil War starts, the presidency has been a pretty weak power in a lot of ways for quite some time. But once the United States is at war, Lincoln feels that as commander in chief, he needs to take a lot of really rapid steps to protect the country. And a lot of those steps are things that at other times might have been done by Congress. The first example would be that before Congress is even called into session, Lincoln creates the first draft of soldiers, and the draft is actually something that is specifically the power to raise armies and is put on Congress. However, Lincoln says that this is just like Canada invading; it's an emergency, we have to do it right now. And his approach was that he came back to Congress later and said, “I did this. So, impeach me.” Of course, they didn’t. Some people really strongly criticized what he did. During the Civil War, he also imprisoned people without trial who he believed were Confederate sympathizers. He felt there was no time to go through a whole judicial process, or that it was too difficult to do so. And that is called the revoking of habeas corpus, which is another power that's specifically given to Congress. Lincoln said that we didn't have time for that, so he just did it himself.

EG: Then, he freed the slaves in the South.

WB: Most notably he freed all of the enslaved people in the Confederate states. The fact that he did it only in the states that were rebelling against the Union was both a clever political tactic to keep slave-owning- and slave-owner-sympathetic people in the North on his side, but it was also based on an interpretation of the commander in chief clause. He viewed the South as occupied territory in war because they were in active rebellion. He saw them as no longer part of the country that had to be under the kind of social contract of passing things through Congress. He would say that only Congress could emancipate slaves in parts of the country that were participating in the democracy, but because the Confederate states were under occupation, he was just acting as a general and doing it for military reasons.

EG: The Emancipation Proclamation.

WB: It is probably the most famous executive order of all time, but it's rooted in a balancing of executive and legislative powers because it's really the 13th Amendment through Congress that ends slavery in all states in the country, with the exception of people in prison.

EG: But Lincoln wasn’t the first to use executive privilege. That goes all the way back to Washington, right?

WB: Yes, but I think the sweeping nature of Lincoln's presidency is an important turning point in the power of the presidency. But part of what's interesting is that Lincoln decided for his second term to pick a vice president from the opposing party—Andrew Johnson, who was the only Democrat from a Southern state who didn't join the Confederates. So Lincoln, in running for his second term, was trying to kind of make a gesture of, “I'm not doing this as a Northern Republican who's trying to destroy your part of the country. I'm representing the whole country.” It was like a kind of beautiful, poetic, symbolic choice, especially if you thought that that guy was just going to be a beautiful, poetic, symbolic side note to history.

EG: But that’s not what happened.

WB: Instead, Lincoln gets shot and killed. And then Johnson becomes president, and this leads to probably the time period of the most powerful Congress in American history—the Reconstruction Congress. Because as soon as Johnson gets in there, he starts trying to undo a lot of the policies of Reconstruction. We could have a whole other Historically Speaking conversation about whether Lincoln would have done that himself anyway, but in terms of the tension of that time, it was between a Northern Republican–dominated Congress, which was interested in punishing the South and to a lesser extent in franchising and assisting formerly enslaved African Americans, and a white Democratic Southern president who was interested in ending the war, but then pretty much trying to get things back to how they were before the war started. So, the first impeachment of a president comes out of that period where Johnson uses one of the powers that is very clearly under the Constitution, which is to choose his advisors. He decides to fire Edwin Stanton, who is the Secretary of War who's in charge of the occupation of the South. Also, there is the question of how to deal with formerly enslaved people's rights. Johnson just wants to get rid of Stanton, so he fires him, but Congress passed a law saying you can't fire a previously nominated president's person without our permission—which I think anybody looking at that would say that's unconstitutional and violates the separation of powers—but they did it so that he would break the law so that they could then impeach him. And he got within one vote of removing him from office.

EG: That sounds as dramatic as what we are going through now.

WB: Dramatic and interesting because you can also talk about different periods of Reconstruction—like the Presidential Reconstruction where Johnson says, “We're going to forgive a whole bunch of former Confederates, and we're going to basically put the slaves back on their land.” Then Congress wins. He loses support in the North, and Congress comes back with a different plan for Reconstruction. It’s super intense, and by intense, I mean punishing former Confederates and attempting for a while to enfranchise Black voters. Then, eventually, the Republicans sort of get corrupt and give up and sell out Black southerners in return for Rutherford Hayes becoming president. And at that time, a law is passed called the Posse Comitatus Act, which is a concept that has to do with when the president can deploy troops on American soil.

EG: Interesting. This is starting to sound very contemporary.

WB: Which is an issue that has come up lately, right? At the time though, Posse Comitatus is where the whole idea is let's pull the troops out of the South so that the Ku Klux Klan can get back to doing what they want to do. Posse Comitatus is closely associated with white supremacy.

EG: Let’s talk about limits to presidential power then.

WB: If you think about Lincoln's justification for the Emancipation Proclamation—which was basically I can do this, but only because I'm at war with our own country—it makes a lot of sense. And so Posse Comitatus is trying to say, unless you're in an actual civil war, those commander in chief powers stop at our borders within our country. You’ve got to leave the power to local authorities . . . unless there are certain emergencies.

EG: All of the sudden, I’m getting a clearer picture of what is happening in Portland right now.

WB: If there is an area in which Donald Trump himself has had great power—and when I say him, I also mean his advisors, people that he directly chose—it's particularly in the areas of immigration and foreign policy. That's where we don't have easy checks. There's a reason why it's ICE officials who are out there. It's these officers who are used to acting in places where there's not a lot of checks on their power. They don't have the kind of limitations that a lot of other pieces of government do. This is not coming from state and local, where we can limit them. They’re coming from things like immigration, detention camps, and ongoing military actions around the world.