Introduction
The American Presidency was invented in 1787, and it was conferred the appointment, administrative, diplomatic, and commander in chief of the United States of America’s defense forces duties. In Professor Clinton Rossiter’s words, the President is the Constitutional Chief of State, the Chief Diplomat, Chief Legislator, Chief Executive, Commander in Chief, the Voice of the People, and the prosperity manager.[1] The establishment of the Executive power in America was mainly a departure from the already existing form of governance. The Confederation was primarily based on the Articles of Confederation, which had been quite effective in serving the different states of America.[2] The Articles of Confederation did not provide for the Presidency; instead, the person elected by the members of the Continental Congress would automatically assume the Office of the President.[3]
The Articles of Confederation also acted as the Constitution, and they provided the governing provisions and laws that were adhered to.[4] Such laws included the provisions on the declaration and pursuit of war.[5] The Confederation came into existence in 1781 and assumed the status of a union without power. This was attributed to the fact that the national government had been given executive powers under the existing Articles of Confederation. Still, no executive had been put in place to support the national Executive created.[6] Against this backdrop, the framers of the Executive Power guided by the need to have a representative government and one founded on republicanism created the Executive that the Presidency would head. In so doing, the drafters significantly relied on political theorists such as John Locke, Aristotle, Machiavelli, and Montesquieu to debate and conceptualize the executive power that they sought to create.[7]
Following the establishment of the Presidency, a new constitution was devised and is heavily relied on established provisions and precedents incorporated in states’ constitutions. The Constitution advocated for an independent Executive, Judiciary, and Legislature which would cohesively work together to serve the citizens of the United States of America. Constitution of the United States of America provides under Article II section 1 that the Executive power shall be vested on the President of the United States of America. Further, the provision adds that the term of the Presidency and the vice president shall be four years. Section 2 provides that the President shall be the commander in chief of the Army and the Navy of the United States. Following the Senate’s advice, the Senate nominates ambassadors, judges, and public ministers and makes necessary appointments in government.[8]
This work seeks to discuss Executive Power paying critical emphasis on the evolution of executive power in the President of the United States. It seeks to discuss the various fundamental factors that have contributed to the evidenced rise in the Presidents’ Executive Power, including pop culture, the media, and the President’s access to and control of information, among other factors. Further, this work interrogates Congress as an institution and its roles and responsibilities in enhancing the necessary checks and balances to ensure that the executive power is exercised for and on behalf of all Americans and not individuals.
It is on this preceding that this work is divided into different parts that seek to discuss and explore the Rise of Executive Power in the President of the United States. The first part of this work is the introduction. The second part of this work is the background and the Rise of Executive Power in the President of the United States. The third part discusses the theories behind the Executive Power, the Presidency. The fourth part discusses the various factors that have contributed to the rise of Executive Power in the President. The fifth part interrogates the role of Congress as a political institution in the United States. The sixth part of this paper uses former presidents of the United States of America as case studies to instances where the President has used his veto to perform or direct the performance of various undertakings without the consent or approval of Congress. Under this category, factors such as executive orders and the rise of a president’s popularity will provide a significant starting point to understand this concept. The seventh part of this paper will constitute the generated findings and provide recommendations necessary to improve the existing situation. The conclusion forms the last part of this research paper as it sums up the critical discussions made in this work.
Background of the Rise of Executive Power in the President of the United States
The founders of the United States nation intended to create a presidency that was subject to checks and balances owing to their experience with colonial governments.[9] The founders relied on their knowledge of politics to arrive at two truths and reconcile them to form the Presidency that would benefit all Americans. The first truth acknowledged was “lack of power corrupts, and absolute lack of power destroys the political community” the second truth was that “men tend to be corrupted by power and absolute power corrupts them.”[10] The delegates agreed on the creation of electoral colleges and the establishment of the Presidency in which most executive powers were to be entrusted to the Presidency but subject to checks and balances.[11] The establishment of the Presidency led to George Washington’s selection as the first President of the United States of America. Consequently, the Presidency was construed to be dual in character where the President was both the head of government and the head of state.[12]
The Presidency established in the 1700s imposed limitations on the office of the President and constantly created disputes as to the balance of power between the Executive headed by the President and Congress. Notwithstanding the limitations imposed on the Presidency, presidents who got elected expanded their formal and informal powers, which sought to perform and administer their duties effectively.[13] The Presidency in the 1700s and the Presidency in the 21st century are very different. In the 21st century, the President’s presidential power and war powers have been significantly expanded over time. This is attributed mainly to the President’s access to and control information.[14]
Alexis de Tocqueville noted that in the 18th and 19th centuries, the executive branch in the United States of America was inferior to and dependent on the legislature. He noted that the existing weakness or inferiority of the Executive in America was attributed to the existing circumstances and not the laws governing the state.[15] Currently, the executive powers override the legislature’s powers, especially on national security and foreign affairs. The President can use his authority to maneuver and make decisions even where Congress is opposed to such a decision.
To provide a systematic form of checks and balances, the founders believed that the legislative arm of the government was the most powerful, thus the need to divide it into two branches to avoid it overwhelming the other arms of government. In so doing, the founders envisioned a unitary executive that would not be overwhelmed by the legislative arm.[16]
Theories behind the rise of the executive power of the President
Professor Rossiter explains that the Presidency is an office that has continuously experienced many changes and expansion of duties since its establishment by the founding fathers of the United States of America.[17] He advances two theories to support this proposition. In his first theory, he argues that the more deeply a nation gets involved in the affairs of other states, the stronger its executive power grows.[18] The second theory advanced by Professor Rossiter is that great emergencies experienced in a constitutional state not only bring the rise of executive power but build up the prestige of a country. He adds that the democratic nature of the United States has vastly contributed to the rise of the executive power in that there is no limit to what the President is allowed to do as long as he performs the act mainly or entirely for a democratic means.
Domestic stresses and foreign involvement demanding to have a common reference point have also over the years are theories that have contributed to the rise in executive power.[19] Domestic stresses emerge from the universal need to have a unitary identity that symbolizes what Americans stand for. The Presidency through the President thus provides a visible identity to the people.
Factors that have contributed to the rise of the Executive power of the President
Expansion of the Executive Branch
The Executive branch of the United States government consists of the President, the Vice President, the CabinetCabinet, the President’s advisors, and various departments and agencies. The power of the Executive branch is vested in the President of the United States. The leading role of the executive branch is to implement and enforce the laws written and enacted by Congress. These duties are expressly spelled out in Article II of the Constitution, which states that the President has an obligation to enforce and is responsible for executing the laws formulated by Congress.[20]
The President is the head of the federal bureaucracy. This executive branch has grown and continues to expand compared to the executive branch of the 18th century. This growth has granted the Presidency enormous powers, such as leading the federal bureaucracy. Therefore, it is involved in setting pollution standards for private entities, creating food and product safety standards, creating policies that oversee and regulate the financial and banking industries, the President enforcing the federal criminal law, and regulating and enforcing labor relations within the state.[21] The expansion of the federal bureaucracy, which falls under the Executive Branch, has predominantly granted more and more powers to the President.[22]
The President’s Access to and Control Information
The Executive is a branch of government with vast powers compared to the other branches of government. These powers include the power to access and control information. The executive branch has higher information-gathering capabilities and intelligence agencies, technical expertise, and the military that collect and access information.[23] In the current world, where information is essential, information is power. The ability of the executive branch to access, collect, analyze, distill and disseminate information places it at a higher advantage compared to other branches of government such as Congress.[24] The ability of the Executive power to collect a wide range of information, in turn, causes other branches such as Congress to rely on it to access information. This factor, therefore, contributes to the rise of executive power and the President’s power as well as he is the head of the Executive.
Pop Culture and the rise of the Executive Power
Pop culture is recognized as the popular attitudes, behaviors, beliefs, customs, tastes, culture that define people. It mainly involves the social aspects and the daily interactions of people.[25] Pop culture provides a medium through which large masses can hold similar beliefs, attitudes, and behaviors that are believed to be acceptable at held in high regard in the group. Essentially, pop culture relies on the foods people eat, the language, and how they talk, e.g., it encompasses the use of slang, the fashion, dressing styles, and rituals that people partake in. The media plays a significant role in informing pop culture as it enables the sharing, transfer, and communication of commonly held beliefs and acceptable standards in people’s daily lives.[26] Other factors that contribute to the rise in pop culture include popular music, the internet, social media, books, video games, television and advertisements, and films.[27]
Regarding the political sphere, pop culture has influenced the rise of the executive power where it is a commonly held belief that the President is the center of national power, and immediately after he occupies the office of the President, he becomes a symbol and represent the nation and what it stands for.[28] This belief has consequently led to the belief that national power directly affects the powers of any incumbent president. As a result, the citizenry is deeply invested in any individual elected as the President, and this belief makes the popularity of the individual rise predominantly after the election.
Pop Culture also provides a view that the President is all-powerful.[29] The ability of a President to use popular culture to his advantage increases his Executive Power and the power to sway the citizenry.[30] Presidents such as Barack Obama managed to understand pop culture and align it with its advantage. Other presidents who also tapped into pop culture include Bill Clinton, George W. Bush, and Donald Trump.
The Media and the Rise of Executive Power
The institution of the Presidency has gained a lot of magnification and coverage from the media. This coverage depicts and places the Presidency and the office of the President as the center and focal reference of the national power.[31] The media coverage has, in turn, led to the notion that the President is perceived as the symbol of the nation and any information he gives represents the stand of the specific nation that he represents. This way, the President can easily influence the political agenda in the nation compared to any other institution or individual. This advantage granted to the Executive Branch through the President acts as a detriment to other branches of government who may not enjoy as much media coverage like that enjoyed by the President.[32] Social media and the internet are great communication avenues and possess the power to change the values, political dynamics, the election process, and diplomacy. Over the years, with the increase in technology and access to information, a president who can tap into and influence the media, including social media, increases the executive powers and his powers as the President.[33]
Constitutional Indeterminacy of the President and the Rise of Executive Power
Constitution indeterminacy is considered as the main reason promoting the rise of the executive power. At the formation and construal of the Constitution of the United States, the founders and framers intended to create a legislature, judiciary, and Executive that were independent of each other but interrelated in the service delivery in the country.[34] In so doing, the drafters of the Constitution imposed the duties and obligations of the President under Article II of the Constitution of the United States of America. However, the duties stipulated under the Article were not specific, and thus they provide room for the duties to grow and increase as the nation grows.[35]
Article II grants the Executive power to the President. Additionally, it recognizes the President as the Commander in Chief of the Army and the Navy of the United States. However, this provision is not explicit whether the executive power granted to the President forms the source of the President’s substantive power and whether being the commander of the forces gives the President the powers to order troops into armed conflict.[36] Further, the Constitution grants the President the power to interpret and enforce the law. As the head of government, the President is not subordinate to the Judiciary and can interpret the law even where the interpretation conflicts with the federal court’s interpretation.
The court in Marbury v Madison[37] expressed that it is the duty of the judiciary branch of government through the federal courts to say what the law is. The court, however, noted that saying what the law does not make it so. [38] The lack of clear-cut duties of the President in the Constitution has allowed the President’s adoption of other duties, including to act in times of national emergency, national crisis, and military action, provided the actions taken were meant to serve the national interest.[39] This factor has dramatically led to the rise of Executive Power and the scope of duties and powers available to an incumbent President.
Precedential Effects of the Executive Branch and the Rise of Executive Power
As earlier indicated in this work, Alexis de Tocqueville notes that the power conferred in and exercised by the Executive Branch of government is not determined by the existing laws at the time but rather, the existing circumstances. On this backdrop, the precedential effects of the Executive Branch have immensely contributed to the rise in the Executive Power in consequent regimes since the inception of the Presidency in 1787 to date.
The use of presidential powers by former presidents provides a reference point to future presidents and, at times, affects their decision-making. For instance, in times of war and national emergencies, presidents have considerable powers to exercise for and on behalf of their citizenry. President Lincoln suspended habeas corpus acting in his official mandate as the President to take charge of the current times.[40] He also authorized military trials for civilians. Such acts, which are seen to stray from the constitutionally imposed duties, expand the duties and powers a president has access to.
Pivotal to note is that the actions undertaken by sitting presidents, especially during national crises or emergencies, rapidly increase the Executive power and the President’s powers since the people are more focused on winning the war, overcoming the crises than they are on the breach of constitutionally imposed duties. This ultimately advances the power available to the President and the Executive Branch for future heads of states in the nation. It is imperative to note that the power vested on any incumbent president of the United States is not explicitly dependent on the provisions of Article II but rather on acceptable norms that have been created and practiced over the two centuries since the inception of the Presidency.
The Control of the Administrative State by the President in the Rise of Executive Power
The federal administrative agency is tasked with regulating the banking industry, setting food and product safety standards, and formulating pollution guidelines for private entities. For a very long the federal administrative bureaucracy served as a separate agency from the three branches of government. However, the Presidential institution had considerably gained access and controlled the federal bureaucracy mainly to advance the presidents’ political agendas.
Examples of presidents who extensively tapped into controlling the federal bureaucracy are President Clinton and President George W. Bush. They used directives and other measures available to the federal bureaucracy to advance and push their agendas.[41] As previously noted in the factor precedential effects of the Executive Branch, these acts will act as future reference points to future presidents since the control of the federal administrative bureaucracy adds to their presidential powers.[42] President Obama also used the Executive power to facilitate the adoption and interpretation of various statutes to favor the affordable healthcare promise and agenda made do the citizens during his campaigns.
The Military and Intelligence agencies and the Rise of Executive Power
Under Article II, the United States of America Constitution provides that the President is the Commander in Chief and the Head of the Executive Branch. Consequently, he heads and controls one of the most powerful militaries globally and administrative agencies such as the National Security Agency and the Central Intelligence Agency. The power to head the military and these agencies add to the already existing powers of the President, providing him with efficient, non-transparent capabilities which they might use to their advantage to further their political agendas or to diminish their political rivals.[43] The growth and technological advancement of the agencies and the military are equivalent to the growth and expansion of the President’s powers.[44]
The use of the military and intelligence agencies has been cited as one of the valuable factors presidents exert their power over to obtain results in their favor. For instance, President Clinton was alleged to have used or ordered the bombing of the terrorist bases in Afghanistan, a move calculated to shift the attention from the Lewinsky scandal. Similarly, President Nixon was accused of using the Federal Bureau of Investigation against his political enemies by ordering investigations on them. These acts of political mischief prove that the exercise of Executive Powers by the President can be used to subvert the visions of a democratic nation.
Additionally, through the exercise of his executive power and as the head of the military, the President may order and direct the military to go into war even in circumstances where Congress has denied such involvement. This emanates from the notion that the President is not subordinate to the legislative branch of government and may proceed to act even where Congress has not duly advised or given consent.
The need for the Government to Act Expeditiously and the Rise of Executive Power
The Presidency envisioned and created by the founders in 1787 has long been outlived with the changing times and rising needs. This means that a President in the 21st century has to make decisions and undertake decisions expeditiously compared to the 18th Century President. The increase in technology and the information era has made the world a global village where nations are prone to get attacked from every side at any time. Situations that require the President include armed conflict, war, national emergencies, and disasters of national crises affecting the livelihood of the citizenry at large. When the President considers the existence of imminent harm to their nation, they may expeditiously direct the undertaking of safety measures to protect the nation’s welfare.
The increased risk and speed of warfare in the current world requires an institution to make expeditious decisions. That institution is the Presidency, as Congress would take longer to decide on a similar issue.[45] An example of a situation where the President acted expeditiously, overriding the decision-making power of the Congress was directing the troops to war in Vietnam and Iraq. According to Congress, this move was directed at endangering the lives of the troops. This factor of the need of the government to act expeditiously in times of war, armed conflict, national disasters, emergencies, and crises is additionally one of the factors that promote the Executive Powers and the Presidential powers. This is owed to the fact that desperate times require expeditious decision-making, and who is in a better position to make decisions expeditiously than the incumbent President?
This part has discussed factors that have affected and promoted the President’s Executive power in the United States. It acknowledges that the Constitution does not extinguish the roles and powers of any President and that any sitting president can usurp power from other sources where he might exercise the powers unilaterally without the consent or advice from Congress. Whereas this might seem to subvert the rule of law, the Constitution does not prevent such undertakings, and it does not make insubordinate the Presidency to other branches of government.
Executive Orders
Executive orders are also one of the factors that have immensely contributed to the rise of executive power in the President of the United States. Executive Orders are Presidential directives issued by the President that establish policies in the country, reorganize the agencies in the executive branch, and alter administrative and legislative policies.[46] Executive orders also have the effects of affecting how legislation is interpreted and implemented in the country.[47] Presidents usually tend to rely on executive orders where they seek to make decisions unilaterally, especially where they lack the support and consent of Congress.
In a later section illustrating a case study of presidents of the United States and how they have contributed to the rise in executive power, executive orders gain importance as the alternative that most of the presidents have turned to when they lack the support of the Congress.
The Polarized two-party system and the Rise of Executive Power
America has two major political parties. These are the Democrats and the Republicans. A President can come from any of these two political parties. It is to the advantage of any President to have his political party enjoying a majority of numbers in Congress. This is essential in helping the President pass legislative policies, particularly those he promised to the public during presidential campaigns.[48]
The polarization of political parties has indeed brought about the separation of parties to the sought constitutional doctrine of separation of powers. Consequently, a President who lacks the support of Congress has most of his legislative policies declined by Congress. This results in the President using executive orders that alter the interpretation and implementation of various statutes and laws to enable the President to perform his objectives.[49]
It is cumbersome for a President whose political party controls Congress to hold the President accountable through checks and balances. This is because of a conflict of interest to support one from the party or criticize the President’s decisions and actions. Therefore, the polarization of parties has been a contributory factor in the Rise of Executive Power in the President.[50]
The Department of Justice and the Rise of Executive Power
The department of justice and its office of legal counsel are the legal authorities tasked with advising the President as to concerns such as the scope of executive and presidential powers.[51] They are the final authorities regarding offering advice to the President, and they provide broad interpretations that pave room for the exercise of executive power. As a result, the department of justice ends up acting as a judge of the last result on its authority.[52]
The President is in charge of appointing the Attorney General who heads the department of justice. A president may use this appointment power to ensure he appoints an Attorney General who will align with his plan. For instance, President Kennedy appointed his brother as the Attorney General and the head of the department of justice. In contrast, President Nixon appointed his campaign manager as the Attorney General. This means that the appointing presidents also can remove any of the appointees from office, including the Attorney General. This makes the Attorney General and the department of justice have personal loyalty to the President, impeding their primary duty, which is to advise the President.[53]
Albeit challenging, some Attorney Generals are dedicated to promoting the rule of law and safeguarding the Constitution. An example is Attorney General Edward Bates, who served under President Lincoln’s administration pointed out that the primary obligation of the department of justice was to uphold the law and resist all internal and external pressures subjected to the department.[54]
Notably, a department of justice that is susceptible to the influence of the President contributes to the rise of executive power of the President.
The Congress and the Rise of Executive Power
The U.S. Congress is the legislative branch of the federal government that makes the laws governing the nation. The Congress comprises two houses, the House of Representatives and the Senate. The House of Representatives is the lower body, while the Senate is the upper body. The founders of the nation and the framers of the U.S. Constitution crafted the Constitution 1787. They created the Congress under Article I to replace the Congress of the Confederation in the performance of legislative functions. Article I of the United States Constitution expressly provides that all legislative powers are vested in the U.S. Congress.[55] The Constitution also imposes obligations and powers on Congress to check the President’s actions and represent the citizens of the United States of America.
Constitutions are not crafted or written in a vacuum. Instead, they seek to represent and uphold a society’s beliefs, ethos, and values.[56] Similarly, the United States of America Constitution is a living document adopted over 200 years ago. Up to date, it forms the basis of democracy in the country and the government.
The History of the Establishment of the U.S. Congress dates back to the British Colonies and the war of independence, which led to the birth of the United States after they acquired independence from Britain. Consequently, the states formed the Confederation and the Articles of Confederation as each state sought to retain its independence and power.[57] The Confederation was centered under John Locke’s social contract theory, where citizens surrendered their power to a shared pool, the government that in turn used its power to protect its citizens. Having experienced the British rule, states under the Confederation were reluctant in forming a central position such as the Presidency for fear of abuse of power as the Monarchs had done.[58]
The need to have a working system of government in the states under the Confederation consequently prompted the enactment of the U.S. Constitution in 1787, which established provisions and principles such as separation of powers, and checks and balances aimed at preventing any abuse of power by any branch or institution of government.
The Powers and Responsibilities of the Congress
Legislative powers
Legislation is the primary responsibility bestowed upon Congress. The Constitution has spelled out this mandate under Article I. For any bill to be recognized as a law in the United States, it must be asserted and passed by a majority vote in both houses; the House of Representatives and the Senate. The doctrine of separation of powers, checks, and balances applies to all branches of government, including Congress. This ensures that Congress performs its duties within the confines of the Constitution of the United States. Once Congress has passed a bill, the Bill is sent to the President within ten working days, and the Bill becomes law after the President signs it. Through the exercise of his veto, the President can also return the Bill to Congress, thus preventing the Bill from becoming law. However, the Constitution stipulates that Congress is the branch of government-mandated to legislate, and the decision of Congress can override the veto power of the President.[59]
Oversight powers
Congress is acting as the police authority that checks the actions played by the Executive. The Senate is the house tasked to check the appointments made by the President in the CabinetCabinet, ambassadorial roles, and the courts. Further, the Senate is tasked to approve the presidents’ treaties entered into. Focal to note is that the Treaties signed by the President only come into effect if the two-thirds in the Senate approve them.[60]
As part of its oversight duties, Congress is responsible for removing a president from office. The House of Representatives is mandated to impeach a president guilty of ambiguous crimes. If the House of Representatives impeaches a President, then the Senate is tasked to try the President for the crimes he is accused of. If the Senate passes to remove a President by a two-thirds majority, it is resolved, and the President through Congress is removed from office.
Examples of circumstances where Congress has upheld its powers of oversight, checks, and balances include; Presidents Theodore Roosevelt and Woodrow Wilson, who attempted to expand their diplomatic influence by creating business monopolies. Congress disregarded these attempts as they were an intrusion of the Constitutional roles of the Congress.[61]
How the Congress has promoted the Rise of Executive Power
The last part of this work demonstrates that none of the three branches of government is subordinate to the other. Additionally, it has demonstrated that the intention of the drafters of the Constitution and the founding fathers was to have institutions that were subject to checks and balances to avoid the possibility of any abuse of power. Congress has special Congressional Committees that perform the watchdog role seriously in the state. Each committee adopts its style in oversight. One criticism directed at congressional committees is that they approach the problems with a firefighter approach rather than a systematic surveillance style of oversight.[62]
Foreign policy
Foreign policy is one of the areas in which Congress is seen to play a dominant role in the Executive’s oversight.[63] The foreign policy mainly focuses on military action and calling troops into war. One of the duties imposed on Congress is to control the funding of the armed forces. Congress also has the power to declare which war is entered into. However, this work, when discussing “the need of the Government to Act Expeditiously” as a factor promoting the rise of executive power, noted that when confronted with national emergencies, crises, or war, the President has the mandate to decide as opposed to the Congress which would take longer to deliberate on a similar matter.
In the past, the President’s power as the Commander in Chief of the Armed Forces and the mandate of the Congress to fund the military have more often than not ended up with the President exercising his veto against the Congress. It is imperative to note that where a President enjoys vast popularity, the Congress is less likely to oppose any military action authorized by the President for fear of becoming unpopular among their respective constituents. Although the concept of war has been outdated, it serves as an example of how Congress has promoted the rise of Executive Power. An example is when Congress shirked its powers in the Vietnam War through the Gulf of Tonkin resolution, therefore, allowing President Johnson to pursue the war as he wished.[64]
Legislative leadership
This work has been focal to note that the legislative function in the U.S. is bestowed upon the Congress by the Constitution of the United States. The founding fathers and the drafters of the Constitution acknowledged the President’s role in legislation. However, this role was restricted to an advisory role as Congress retained the legislative authority.[65] The tenure of Franklin D. Roosevelt in 1932 saw a shift where he introduced his ‘New Deal’ strategy that sought to bring changes to the already crippling economy and unemployment in the nation.[66] The President undertook the legislative role, and during his first 100 days in office, he formulated legislative proposals adopted by the largely democratic-dominated Congress.[67]
This move by President Franklin D. Roosevelt provided a precedent for future Presidents who, during their campaigns, promised a change in the diplomatic policies in the nation despite the Executive branch having to authority to legislate in the country. The Presidents promise to bring fundamental changes in domestic policies and introduce new laws such as education, welfare, and the environment and healthcare sectors.[68]
The ability of a President to convince and obtain support from Congress has been a significant factor that has led to the rise of Executive Power. President Lyndon B. Johnson was known for his persuasive skills, where most of his legislative proposals were passed by Congress. Presidents such as Jimmy Carter, who lacked vast knowledge of Washington politics, suffered a detriment since they could hardly influence Congress into passing their legislative policies. President Ronald Regan largely benefitted from former members of the Congress and Capitol Hill staffers who advised him on how to maneuver and obtain support in the Congress.[69]
As demonstrated in this part, the rise of Executive power in the President does not stand in isolation. Various factors come into play to facilitate and promote the rise in Executive Power. For instance, in Legislative leadership, a President who enjoys substantial public backing or popularity will more likely have his policies passed by Congress than a President who lacks a huge public backing. The President, especially after an election, enjoys political capital because the members of Congress know that their decisions against a popular President could be detrimental to their political careers.[70]
An example is President Clinton’s new administration which became unpopular after announcing the ban on gay men and women serving the armed force. This brought about a lot of controversy, and he had to change the position and compromise on a don’t ask, don’t tell policy. As a result of his diminished popularity, it became harder for President Clinton’s legislative policies to pass in Congress. On the other hand, as earlier pointed out, President Ronald Reagan used his popularity and honeymoon stage to the very end, enabling him to actively take charge of the legislative leadership leading to the rise in Executive Power.
A Case Study of Past Presidents and how they contributed to the Rise in Executive Power
Executive power has been on the rise, and the most outstanding reason is that the Presidency itself has sought to increase its powers and the powers of the Executive. The other factor that has contributed to the rise of Executive Power is the willingness of Congress to delegate its powers, some of its duties and responsibilities to the Executive. This section explores the different presidencies of presidents who served in the United States. It evaluates how the presidents’ actions or failures have contributed to the rise in Executive Power experienced today. It also focuses on the different themes that have contributed and helped the presidents usurp Executive Power creating presidents for future presidents in the nation.
President John F. Kennedy
At his inauguration as the 35th President of the United States of America, John F. Kennedy moved the masses through a speech that his inauguration marked a celebration for the people of America. He implored the Americans to ask what they could do for their country and not what America could do for them. At the time of his swearing-in, America was facing hunger and disease, and his speech of a better America not only served as a rallying cry but a speech of rededication. To meet the existing challenges before his Presidency, John F. Kennedy expanded the power of the Presidency, particularly the foreign affairs power. This move supported the already increasing powers of the President in foreign affairs introduced by President Theodore Roosevelt’s administration. This, as was later evidenced, has created a precedent in allowing presidents to take charge of the foreign affairs docket in the country, thus increasing the Executive Power.[71]
President Gerald Ford
Gerald Ford’s Presidency is proof that foreign policy and the decision to go into war solely remains in the Chief Executive’s hands. In 1975, Ford directed U.S. troops to liberate American seamen who Cambodia’s Communist government had seized. Ford acted on his motive and did not consult Congress in his decision. Later, he would term the War Powers Act as having no meaningful and substantive restrictions on a president’s power.[72]
President George W. Bush
In 1991, George W. Bush received the support of the Congress to oust the forces of Iraq from Kuwait. Nonetheless, he still undertook a unilateral decision not to expand the conflict in Iraq following the public and Congress’ opposition to a broader war.[73]
President Barack Obama
Barack Obama’s Presidency rekindled worries of an imperial presidency when he unilaterally decided to expand the war in Afghanistan, notwithstanding the time limitations involved.[74] During his presidential campaigns, President Obama opposed the Executive unilateral approach taken by President Bush. He vowed to use the formal legislative process to enact his legislative proposals rather than using Executive power. President Obama enjoyed massive support from the Democrats in Congress, which led to his three major legislative proposals, including the economic package, the Dodd-Frank Act, and the Affordable Care Act.[75] In 2012 when the Republicans managed to gain control of Congress, he experienced challenges in having his legislative bills passed. He issued executive orders that provided new rights and proved beneficial to Americans. Notably, the executive orders instituted by the President had a considerable cost to businesses and consumers, amounting to billions of dollars. He, therefore, resulted in the use of Executive power and authority to further his policy goals.[76]
President Donald Trump
Like other presidents before him, President Donald Trump understood that the Executive Power could be increased. Upon coming into office, he issued an executive order under the Environmental Protection Agency that sought to reverse the Clean Power Plan instituted by President Obama’s administration to tackle global warming.[77] The use of the executive powers through executive orders issued by a president is dependent on the fact that in undertaking a unilateral decision, a president does not seek to obtain any consent or agreement from other sources such as Congress.
This part has demonstrated that the President’s Executive Power has been rising, and different presidents have relied on their Executive Power to pass their legislative policies. This, more often than not, raises the issue of abuse of power or office and further calls for the need to enhance checks and balances to curtail any abuse of power.
The Role of the Congress in regulating the Rise of Executive Power in the President
The central role Congress can play in regulating the Rise of Executive Power in the President is performing its oversight and investigative duties bestowed upon it by the Constitution.
Arguments supporting checks and balances on the Executive Branch of government
The need to have a balance between the Executive Branch and the Legislative Branch of government
The United States’ founding fathers created three branches of government where each was independent of the other. Further, none of the branches of government was subordinate to the other. They acknowledged that the concentration of the Executive, judiciary and legislative power in one pool would breed a tyranny they sought to avoid primarily due to the past British rule.[78] The term limit of a president prevents the birth of a dictator who usurps Executive Power violating democracy and the rule of law in the nation. Congress, therefore, has the oversight authority to investigate and oversee the actions of the Executive. The term limit of a president has also proved effective in enhancing accountability and enabling Congress to perform its oversight functions.[79]
The Arguments advanced by the Founding Fathers
The founding fathers relied on John Locke’s Social Contract Theory informing the government. The sole basis of the theory is that citizens delegate their powers into a shared pool, the government, which is responsible for protecting their interests.[80] The founding fathers acknowledged that the worst form of government any nation can have is a tyranny where one individual exercises power delegated upon the institution of government in a manner that does not seek the common good but rather proves detrimental to the people and the society in general. In the 18th century, at the formation of the government and its resulting branches, such as the Executive, the founders mostly feared the tyranny birthed from the legislative branch of government. This is because, at the time, Congress was given strong powers such as to tax, declare war, establish post offices, regulate commercial activities, and make necessary and proper laws to enable it to perform its duties and responsibilities.[81] As this paper has explained in earlier parts, the decisions of the founding fathers were mainly influenced by the past British rule. As much as they feared the tyranny of the legislative branch of government, it is focal to note that they feared all forms of tyrannies from any branch of government as it impedes the institution of democracy.[82]
Findings and Recommendations
This work demonstrated that the founding fathers intended to create institutions subject to checks and balances. As such, Congress bears a burden to ensure that the executive powers exercised by the President are subject to the constitutional provisions and are aimed at fostering the greater good of each American citizen.
Against this backdrop, the following recommendations are advanced to regulate the rise of executive power in the United States.
The first recommendation is to rethink the precedents set by past presidents that have automatically formed the basis of the rise of executive power.
Secondly, Congress must put more outstanding efforts to regulate executive power in place.
Thirdly, Congress should be keen to perform its institutional obligations and desist from surrendering some of those duties to the executive branch.
Fourth, institutions such as the department of justice should uphold their independence and avoid submitting to any internal or external pressures to exercise their constitutionally conferred duties and obligations.
The fifth recommendation is the upholding of Bipartisanship. In a previous section, this work has demonstrated that Congress has allowed and permitted the rise of executive power, especially for presidents and executives of the same political party. The partisan divide that has earlier on adopted by Congress has proven futile in championing for the rights of the poor and even ending racial discrimination because there is no oversight on the executive power exercised by a President.
Conclusion
Ideal America and the America that our founding fathers envisioned was one in which the three branches of government would cohesively work together for the greater good of the whole country. Therefore, the unilateral acts by the executive branch through the President negate the spirit and intentions of the founding fathers. Therefore, Congress should be keen to perform its oversight duties on the executive branch to uphold the spirit of the Constitution of the United States of America.
Bibliography
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Glen S. Krutz and Jeffrey S. Peake. Treaty Politics and the Rise of Executive Agreements: International Commitments in a System of Shared Powers. (University of Michigan Press 2009).
Journal/ Articles
Cronin, Thomas E. “On the Origins and Invention of the Presidency.” Presidential Studies Quarterly 17, no. 2 (1987): 229–35. http://www.jstor.org/stable/40574447
Edward G. Carmines, and Matthew Fowler. “The Temptation of Executive Authority: How Increased Polarization and the Decline in Legislative Capacity Have Contributed to the Expansion of Presidential Power.” Indiana Journal of Global Legal Studies 24, no. 2 (2017): 369–98. https://doi.org/10.2979/indjglolegstu.24.2.0369.
English, Ross M. “Origins and Development of Congress.” In The United States Congress, 1–15. Manchester University Press, 2003. http://www.jstor.org/stable/j.ctt155jb28.5.
English, Ross M. “President and Congress.” In The United States Congress, 120–42. Manchester University Press, 2003. http://www.jstor.org/stable/j.ctt155jb28.11.
Fred Greenstein. 2010. “The Policy-Driven Leadership of James K. Polk: Making the Most of a Weak Presidency,” Presidential Studies Quarterly 40, No. 4: 725–33.
Harrington, Alexandra R., “Presidential Powers Revisited: An Analysis of the Constitutional Powers of the Executive and Legislative Branches Over the Reorganization and Conduct of the Executive Branch.” Willamette Law Review, Vol. 44 (2007), p. 63, Available at SSRN: < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299999>.
Henry Reeve text and Phillips Bradley, Democracy in America (New York, 1945), I, 124 ff.
Hooker, Jesse, “Presidential power and its expanding influence: Suggestions on how to strengthen checks and balances.” Honors Projects. 728 (2019) https://scholarworks.gvsu.edu/honorsprojects/728.
Jutta Weldes And Christina Rowley So, “How Does Popular Culture Relate To World Politics?” Apr 29, 2015, https://www.e-ir.info/2015/04/29/so-how-does-popular-culture-relate-to-world-politics/
Kuic, Vulkan. “Theory and Practice of the American Presidency.” Presidential Studies Quarterly 4/5 (1974): 54–63. http://www.jstor.org/stable/27547298.
Kuic, Vulkan. “Theory and Practice of the American Presidency.” The Review of Politics 23, no. 3 (1961): 307–22. http://www.jstor.org/stable/1405437.
Malbury v Madison (1803) 5 U.S 137, 177.
Martin S. Flaherty, “The Most Dangerous Branch,” Yale L.J 105 (1996). 1725, 1816-17; Abner S. Greene, “Checks and Balances in an Era of Presidential Lawmaking,” U. Chi. L. Rev 61 (1994) 123, 125.
Mayer, Kenneth R. “Executive Orders and Presidential Power.” The Journal of Politics 61, no. 2 (1999): 445–66. https://doi.org/10.2307/2647511.
Mayer, Kenneth R. “Executive Orders and Presidential Power.” The Journal of Politics 61, no. 2 (1999): 445–66. https://doi.org/10.2307/2647511.
Neal Devins, “Congressional-Executive Information Access Disputes: A Modest Proposal – Do Nothing,” Admin. L. Rev 48 (1996) pp 109, 111-16.
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Rakove, Jack N., and Susan Zlomke. “James Madison and the Independent Executive.” Presidential Studies Quarterly 17, no. 2 (1987): 293–300. http://www.jstor.org/stable/40574452.
Stephen M. Griffin “Executive Power In The U.S. Constitution: An Overview” (2014) Tulane Public Law Research Paper No. 14-3 Available at < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2422927#>.
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Winder, Shany. “Extraordinary Policymaking Powers Of The Executive Branch: A New Approach.” Virginia Environmental Law Journal 37, no. 3 (2019): 207–71. https://www.jstor.org/stable/26861994.
[1] Kuic, Vulkan. “Theory and Practice of the American Presidency.” Presidential Studies Quarterly 4/5 (1974): 54–63. http://www.jstor.org/stable/27547298.
[2] Cronin, Thomas E. “On the Origins and Invention of the Presidency.” Presidential Studies Quarterly 17, no. 2 (1987): 229–35. http://www.jstor.org/stable/40574447
[3] Harrington, Alexandra R., “Presidential Powers Revisited: An Analysis of the Constitutional Powers of the Executive and Legislative Branches Over the Reorganization and Conduct of the Executive Branch.” Willamette Law Review, Vol. 44 (2007), p. 63, Available at SSRN: < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299999>.
[4] The Articles of Confederation, The Avalon Project At Yale Law School, available at http://www.yale.edu/lawweb/avalon/artconf.htm
[5] Ibid.
[6] Rakove, Jack N., and Susan Zlomke. “James Madison and the Independent Executive.” Presidential Studies Quarterly 17, no. 2 (1987): 293–300. http://www.jstor.org/stable/40574452.
[7] Supra note 2 p 230.
[8] The Constitution of the United States of America, 1789.
[9] Supra note 2.
[10] Supra note 1.
[11] Fred Greenstein. 2010. “The Policy-Driven Leadership of James K. Polk: Making the Most of a Weak Presidency,” Presidential Studies Quarterly 40, No. 4: 725–33.
[12] Ibid.
[13] Glen S. Krutz and Jeffrey S. Peake. Treaty Politics and the Rise of Executive Agreements: International Commitments in a System of Shared Powers. (University of Michigan Press 2009).
[14] Ibid.
[15]Henry Reeve text and Phillips Bradley, Democracy in America (New York, 1945), I, 124 ff.
[16] Martin S. Flaherty, “The Most Dangerous Branch,” Yale L.J 105 (1996). 1725, 1816-17; Abner S. Greene, “Checks and Balances in an Era of Presidential Lawmaking,” U. Chi. L. Rev 61 (1994) 123, 125.
[17] Kuic, Vulkan. “Theory and Practice of the American Presidency.” The Review of Politics 23, no. 3 (1961): 307–22. http://www.jstor.org/stable/1405437.
[18] Ibid.
[19] Supra note 1.
[20] The Constitution of the United States of America, 1789.
[21] Peter L. Strauss, “The Place of Agencies in Government: Separation of Powers and the Fourth Branch,” Colum. L. Rev. 84 (1984) pp 573, 587-91.
[22] Ibid.
[23] Neal Devins, “Congressional-Executive Information Access Disputes: A Modest Proposal – Do Nothing,” Admin. L. Rev 48 (1996) pp 109, 111-16.
[24] Ibid.
[25] Jutta Weldes And Christina Rowley So, “How Does Popular Culture Relate To World Politics?” Apr 29, 2015, https://www.e-ir.info/2015/04/29/so-how-does-popular-culture-relate-to-world-politics/
[26] Ibid.
[27] Ibid.
[28] William P. Marshall “Eleven Reasons Why Presidential Power Inevitably Expands And Why It Matters” https://www.bu.edu/law/journals-archive/bulr/documents/marshall.pdf February 2, 2022.
[29] Ibid.
[30] Supra note 25.
[31] Supra note 28.
[32] Ibid.
[33] Ibid.
[34] Supra note 28.
[35] Ibid.
[36] Stephen M. Griffin “Executive Power In The U.S. Constitution: An Overview” (2014) Tulane Public Law Research Paper No. 14-3 Available at < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2422927#>.
[37] Marbury v Madison (1803) 5 U.S 137, 177.
[38] Ibid.
[39] Supra note 28.
[40] Ibid.
[41] Supra note 28.
[42] Ibid.
[43] Supra note 28.
[44] Ibid.
[45] Supra note 28.
[46] Mayer, Kenneth R. “Executive Orders and Presidential Power.” The Journal of Politics 61, no. 2 (1999): 445–66. https://doi.org/10.2307/2647511.
[47] Ibid.
[48] Supra note 28.
[49]Ibid p 519.
[50] Ibid.
[51] Supra note 28 p 511.
[52] Ibid.
[53] Ibid.
[54] Ibid.
[55] The United States of America Constitution, 1789 Article 1, sec 1.
[56] English, Ross M. “Origins and Development of Congress.” In The United States Congress, 1–15. Manchester University Press, 2003. http://www.jstor.org/stable/j.ctt155jb28.5.
[57] Ibid.
[58] Ibid.
[59] Ibid.
[60] Ibid.
[61] Ibid.
[62] English, Ross M. “President and Congress.” In The United States Congress, 120–42. Manchester University Press, 2003. http://www.jstor.org/stable/j.ctt155jb28.11.
[63] Ibid.
[64] Ibid.
[65] Ibid p 127.
[66] Ibid p 128.
[67] Ibid.
[68] Ibid.
[69] Ibid p 130.
[70] Ibid.
[71] Mayer, Kenneth R. “Executive Orders and Presidential Power.” The Journal of Politics 61, no. 2 (1999): 445–66. https://doi.org/10.2307/2647511.
[72] Ibid.
[73] Edward G. Carmines, and Matthew Fowler. “The Temptation of Executive Authority: How Increased Polarization and the Decline in Legislative Capacity Have Contributed to the Expansion of Presidential Power.” Indiana Journal of Global Legal Studies 24, no. 2 (2017): 369–98. https://doi.org/10.2979/indjglolegstu.24.2.0369.
[74] Ibid.
[75] Ibid.
[76] Ibid.
[77] Winder, Shany. “Extraordinary Policymaking Powers Of The Executive Branch: A New Approach.” Virginia Environmental Law Journal 37, no. 3 (2019): 207–71. https://www.jstor.org/stable/26861994.
[78] Hooker, Jesse, “Presidential power and its expanding influence: Suggestions on how to strengthen checks and balances.” Honors Projects. 728 (2019) https://scholarworks.gvsu.edu/honorsprojects/728.
[79] Ibid.
[80] Ibid.
[81] Ibid.
[82] Ibid.
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