Presidential Power: Restoring The Balance

Abstract

In a single office, the presidency, the great powers of the American people have been invested, making it the most powerful office in the world. Its power is great precisely because it is truly the people's power, in the form of consent regularly granted. But there is great uncertainty about the terms of the social contract. We can know that virtually all power, limited only by the Bill of Rights, has been granted. And we can know that when presidents take the oath of office they accept the power and the conditions for its use: the promise of performance must be met. But we cannot know what is adequate performance. No entrepreneur would ever sign a contract that leaves the conditions of fulfillment to the subjective judgment of the other party. This is precisely what has happened in the new social contract underlying the modern government of the United States. The system of large positive national government in the United States was a deliberate construction, arising out of the 1930s. The urgency of the times and the poverty of government experience meant that the building was done exuberantly but improvisationally, without much concern for constitutional values or history. The modern presidency is the centerpiece of that construction. Considered by many a triumph of democracy, the modern American presidency is also its victim. The gains from presidential government were immediate. Presidential government energized the executive; it gave the national government direction; it en-