NEW YORK — The delegates at the Constitutional Convention of 1787 were trying to create a new framework of government for the fledgling United States of America. They knew they needed SOMEONE to run the federal government.
Somebody had to be in a position to see that the laws enacted by Congress were “faithfully executed,” to make treaties, to be the commander in chief of the armed forces, to run the country. You know, a president.
But they did not want to risk creating another autocrat. After all, they had just fought a war to get rid of one. Many of the basic responsibilities—making laws, collecting taxes, declaring war—were placed under the authority of Congress, itself divided into two chambers to manage authority among the states. The federal judiciary, the Supreme Court, was also made independent. Its powers would be balanced.
Where something begins is not always where it stays, however, as the history of America since the convention that created the U.S. Constitution demonstrates. Over the centuries, as the country expanded from 13 states to 50, as the roles and responsibilities of government expanded through wars and social change and shifting global realities, the powers that the branches of government sought for themselves and in relation to one another have made checks and balances a moving target.
That was on display again this month, when the Supreme Court displayed its own power when it ended a hugely important term with a 6-3 decision which in turn extended presidential power by arguing that former presidents are largely immune from criminal prosecution for actions they committed while in office.
For the framers of the Constitution, the idea generally was that we should make each branch strong enough to protect itself from being usurped by the others, says Andrew Rudalevige, a professor of government at Bowdoin College.
That meant that things like a presidential veto on legislation had to be introduced, as well as a two-thirds majority vote in both houses of Congress to override that veto.
But compared with Congress in the country’s early years, “the presidency was a very weak institution,” said Benjamin Ginsberg, a political science professor at Johns Hopkins University, who pointed out that Congress initially didn’t even give the president money to pay household workers.
The Founders “knew you needed an executive branch. They knew, for example, that if the country was attacked, you couldn’t wait for Congress to come together and decide what to do, you needed someone who could act,” he says. “On the other hand, they were very concerned about creating a king.”
Of course, those who held the office were not prepared to be mere observers. Article II of the Constitution said that executive power would reside in the president, but it did not specify what those powers were, so presidents set about defining them. Rudalevige quotes Andrew Jackson, who expanded on how and when veto power was used during his presidency.
However, it was the 20th century that saw the power of the presidency truly increase, particularly through the New Deal era under Franklin D. Roosevelt and World War II. Government expanded through social programs, financial reforms, and regulations to emerge from the Great Depression, all of which had to be managed.
Of course, that didn’t happen automatically; Congress passed legislation that allowed it, statutes that directed various federal agencies to come up with rules for when the laws didn’t provide specific instructions. In effect, that gave power to the executive branch.
“Congress has failed to keep up with the presidency on this issue,” said William Antholis, president and CEO of the Miller Center at the University of Virginia, which studies the nation’s executive branch.
Congress could be “much more explicit in its rulemaking and not delegate it to the executive branch,” he said.
The Supreme Court also played a role. It staked out some of its own ground in the 1803 Marbury v. Madison decision, which established judicial review—the principle that the court had the power to strike down laws it deemed unconstitutional.
At times, the court has allowed the federal government and its regulators to make the rules, as in a 1984 ruling known as the Chevron Doctrine. At other times, it has curbed regulatory power, as it did late last month. in the overthrow of ChevronIn recent years, it has overturned legal precedents on abortion access and affirmative action in higher education.
In reality, the powers of the U.S. presidency, as enshrined in the U.S. Constitution, are in some ways much more limited than in other countries, says Zachary Elkins, an associate professor of government at the University of Texas at Austin and co-director of the Comparative Constitutions Project. For example, the president cannot make laws or dissolve Congress.
That’s not to say that presidents haven’t tried to push through their agendas, through executive orders and signed statements on policies and programs, by pushing through their choices about who they want on the federal bench and the Supreme Court, or by exploiting the space created by momentous events like the Civil War or the 9/11 attacks.
“Presidents push,” Rudalevige says. “Sometimes Congress just doesn’t push back. That’s when the line shifts.”