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.
EG: So explain how the current administration can deploy these troupes into our cities and attack our own people.
WB: From a legal perspective, there are three ways that the president could use military force on the streets: Number one—if we were in a literal civil war. I don't think we can claim that . . . yet. Number two—if asked for assistance by the governor or mayor of a specific state or town; and that is how the Portland stuff got started. Although that's not the military, that's some other shadowy corner of the executive branch, but in some other places like California when we saw the National Guard called out, that's usually because it's invited or under laws that were passed. Number three—if a National Emergency is declared, then the president does have pretty sweeping powers to do all sorts of things. So, the question of when is it okay to declare a National Emergency is one that has come up under various presidents, but President Trump tried to declare a National Emergency and use National Emergency powers at the border.
EG: So, who gets to decide when there’s a National Emergency or not?
WB: For a National Emergencies act? He does have that power. There is a list of certain vague reasons, such as national natural disasters, that he can cite. They're all pretty easy to cite.
EG: So in some ways Congress has given the president a blank check, or at least a pretty blank check, to use in situations like that to deploy force, right?
WB: But you have to cite some reasoning, and it is the courts that have the ability to say if you don't have a good enough reason. We’ve kind of jumped ahead here, but I think that example shows what has basically happened over the course of the 20th century. After Reconstruction, there was a long period of presidential power being fairly limited, because there was a powerful Congress. And because we weren't yet, at the time, where the national economy was being regulated to the extent that it was when the Great Depression hit or to a lesser extent by Theodore Roosevelt and other progressive presidents.
EG: So when you say a powerful Congress, does that mean that it's basically all one party?
WB: I guess so. Or they're just able to get stuff done because there's bipartisan agreement on certain kinds of issues. But the reason that the Republicans in Congress during Reconstruction were so powerful was because all the Democrats had seceded. They overrode Johnson's vetoes repeatedly; something that is now very rare for Congress to be able to do. It's just not enough of a majority for either party.
EG: So, what happens to the presidential powers after the Reconstruction?
WB: The two things that happen during FDR’s presidency are the Great Depression and World War II. There are some assertions of executive power during the Great Depression, with Roosevelt creating committees that decided things. And certainly Roosevelt at that time, because he had the radio, also starts to assume this cultural power that I think is really important to understanding who the president is now—because his voice could speak directly to people. He became the person whose job it was to explain what the new laws were about. Remember that in the original conception, the idea is Congress writes the laws and then the president executes them. But what starts to happen is the president comes up with an idea for a law and tells people that that's what they should support. Those people tell Congress that that's what they should do, and then Congress does it. So at that point, the president is kind of creating the laws as well. We talk about the New Deal as something that Roosevelt did, even though all of those things had to pass through Congress, right? But the New Deal was also an enormous expansion of the federal government on some level, like the Civil War. It was a national emergency that led to the need for a lot of different governmental functions that didn't exist before. And there was a lot of fighting about whether the federal government had that power or not, whether states should have been allowed to set their own wheat prices, or whether individuals should be allowed to eat the wheat that they grow themselves, or whether that can be regulated. And there are great Supreme Court cases about that; but by any measure, you now have lots and lots of people working for the executive branch that didn't used to work there before.
EG: And those people report to the president.
WB: And that's the first time that's happened in history to that scale. In terms of economic scale and bureaucratic scale, it was unlike anything that we'd seen at least since the Civil War. So that happens, and then World War II happens. So, if the Great Depression sees an expansion of what executive power means, then World War II sees an expansion of what the commander in chief means. For example, from World War II onward, beginning with the Lend-Lease Act, the U.S. is not in the war yet but trades a bunch of weapons for military bases, which is something that Congress does not approve but the president says we're doing it for national security reasons, and in so doing literally takes over a bunch of military bases that once belonged to the British Empire and now belong to the United States. And all of this is a way to circumvent Congress having to vote to support Britain, because the war was very unpopular at that time. This is where you start to see the beginnings of what we can only call an American Empire—and the phrase that will ultimately be applied to the president in this time is the Imperial Presidency.
EG: Explain Imperial Presidency.
WB: That phrase can be used in different ways. It can be viewed as the president becoming an emperor over the other branches of government and the president basically seizing powers that rightfully belong to other branches. I think that was definitely going on at that time. The United States was also becoming imperial in its role in the world in the sense of literally controlling pieces of land all around the world and many people.
Within that context, the commander in chief’s role outside the United States—it's not up to Congress to decide how people are treated in the Philippines for example. In some places like Puerto Rico or in countries that were literally at war with us—Japan, Germany—much of those things all come from the president. It is a huge change in the power of the presidency then, and once Congress declares war at that point, commander in chief is invoked, and he can do all sorts of things. For instance, Roosevelt met with Stalin, and they divided up Europe. From there you have a permanent military system that's much larger than anything we'd had before, plus you have permanent intelligence services—the CIA, which operates outside the borders of the United States with very few limitations by Congress. And you also have an importance placed on the kinds of negotiations that the state department does that hadn't really existed at a time when the U.S. was viewed as an isolationist sort of power.
Then, of course, World War II goes right into the Cold War, and the president most known for expanding executive privilege during the Cold War is Eisenhower. And Eisenhower is a really interesting figure because he was a general. So he came out of the military into the executive branch. Most previous presidents had at some point served as an elected official. Eisenhower had never been elected in any way. He greatly expanded the use of secret operations around the world, especially the assassinations of leaders who were viewed to be unfriendly to the United States. He also was president while McCarthyism was going on—which we usually view through the lens of a conflict between leftists and right-wing anticommunist people but actually can also be viewed as a conflict between the executive and legislative branches. McCarthy was a senator who held these hearings about how the state department had been infiltrated by communists. Eisenhower was no friend of communism and ordered all sorts of operations around the world against left-leaning leaders, but he didn't want to cooperate with McCarthy in any way. He basically said that nobody was going to testify. Nobody was going to give McCarthy any documents. And that's like the modern assertion of executive privilege.
To Be Continued . . .
Will Bellaimey teaches U.S. Government and Politics at Flintridge Prep School outside Los Angeles where he is also the director of the Los Angeles Museum of Geography, which is staffed entirely by seventh graders. His podcast, All the Presidents, Man, is available here.