Abstract
Much Power Should They Have? demanded cover of Newsweek as 2006 began, as President George W. Bush and Vice President Dick Cheney glared out from underneath headline. question was prompted by a flurry of holiday season revelations centered on aggressive claims to, and use of, unilateral presidential powers. These ranged from detention and treatment of imprisoned terror suspects around world to phone taps placed on Americans without a court warrant. We've been able to restore legitimate authority of presidency, vice president insisted; others worried that Constitution's checks were being unbalanced and that imperial presidency of Vietnam/Watergate era had risen from grave (Cheney 2005; Rudalevige 2005; Schlesinger 1973). Framing Questions However timely, Newsweek's query was of course hardly new. Indeed, little at Constitutional Convention of 1787 provoked more debate than shape and scope of executive branch. Delegates had to determine how president would be selected, how long should serve, whether should be able to run for office more than once, how much power should have--even whether president would be a he or a they. (1) Some of Framers were unconvinced of need for an executive branch in first place. Others thought that executive power must be strictly divided, to impede future tyranny: for them, in Virginia Governor Edmund Randolph's phrase, a single executive was the foetus of monarchy (Rakove 1996, 257). And monarchy, of course, was what Framers wanted to avoid. In end, framework of presidential power was left largely in outline form, to be worked out in practice. Consider very first sentence of Article II: The executive power shall be vested in a President of United States of America. What is the executive power? What might it allow president to do? Here document is silent. In other places president was given a limited array of specified powers, many of them further truncated by a sort of congressional asterisk--the president can finalize treaties, or appointments, only with Senate approval; execution of law assumes its legislative passage; no money can be spent that is not first appropriated by Congress. How these shared powers might work was itself not clarified; expectation was, in Madison's famous phrase from Federalist, that interbranch interaction would allow institutional ambition ... to counteract ambition. conflict that implied began immediately, when Treasury Secretary Alexander Hamilton and Congressman James Madison argued over scope of President Washington's unilateral authority. Reduced to its essence, dispute was--and is--relatively straightforward: is a president limited to specific powers affirmatively listed in Constitution or granted in statute, or can take whatever actions deems in public so long as those actions are not actually prohibited by Constitution? Theodore Roosevelt's iteration of Hamilton's position put it clearly: My belief was that it was not only [the president's] right but his duty to do anything that needs of Nation required unless such action was forbidden by Constitution or by laws. Roosevelt's successor, William Howard Taft, clarified opposing view. The President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied within such express grant as proper and necessary to its exercise, Taft wrote. There is no undefined residuum of power which can exercise because it seems to him to be in public interest (Pyle and Pious 1984, 70-71; Roosevelt 1985 [1913], 372). Whatever Framers' true intent, Hamiltonian position won out over time. growth in size and scope of government during and after Great Depression, and national security apparatus built during World War II and Cold War, effectively settled argument. …
Published Version
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