What would George Washington Do?
Presidential Powers depend on challenges
Article II, Presidential powers is the most creative and new device of the three Branches of government in the U.S. Constitution, and so it lacked the benefit of centuries of history and development like that afforded a legislature1 or judiciary.2 So it fell to George Washington to be the first to test the scope of Presidential powers, under the scrutiny of a public that just fought a long revolution to rid themselves of a king. He would not be the last to test the scope of the powers of the President.
Just recently an historical document was found that was George Washington’s own personal copy of the Constitution. He made a few notes in the margin that shed light on his view of the President’s scope of power. Since his birthday was this week, February 22, still officially Washington’s Birthday (although it is called President’s Day), it seemed like a good time to reflect on what he thought about Presidential Powers and how other Presidents followed in testing the limits of Art. II.
I have worked in all three branches of the federal government, but I have spent far more time in the Executive Branch, including advising the President as part of the Office of Science and Technology Policy. So I probably have some bias in my view of the importance of the powers of the Executive Branch, but also well aware of the need for checks and balances.
What are the powers of the President?
The Executive branch, created and empowered by Article II, of the Constitution, provides for a President, to enforce the laws, and act on behalf of the United States in foreign affairs. Art. II, Sec. I provides that “the executive power shall be vested in a President; Art. II, Sec. 2 states that the President shall be commander in chief; and Art. II, Sec 3, states that He shall take care that the Laws be faithfully executed.”
The Constitutional Convention Committee considered the idea of the Executive and among the proposals, considered an executive of three members. In Federalist 71, Hamilton had cautioned against multiple executives writing, “All multiplication of the executive is rather dangerous than friendly to liberty.” Pierce Butler from South Carolina was opposed because he had seen in Holland how a plurality of military heads had been a complete distraction whenever another country threatened to invade.3
Of the three branches, it is the Executive branch which has seen the most change and expansion, in carrying out more complex programs created by Congress. The growth in foreign affairs from rapid globalization, immigration and terrorism have contributed to the increasing complexity and role of Presidential power in foreign affairs.
Historically, Article II Presidential powers have been broadly interpreted. Presidents who have issued directives to carry out their responsibilities, have exercised this broad power, while both the Judicial branch and the Congress have been reluctant to rein-in those powers. The conflicts typically arise in two situations. First, is where the President exercises authority in foreign affairs that may arguably reach into Congressional authority to declare war. Second, is the use of Executive Orders that are legislative in nature in that they are laws that affect the public which is beyond the Art. II power of organizing the Executive branch in the way the President wants it to work.
George Washington, 1st Pres. (1789-1797). This discussion began with the question, “What would George Washington do?” and only recently, his personal notes on his own copy of the U.S. Constitution revealed some of this thinking. He made notes about what he thought was required (a State of the Union address) and also carried out meetings with the U.S. Senate as he interpreted the “consult with the Senate” in treaties and foreign affairs. In the first, the tradition continued. In the second, Pres. Washington was so disgusted with the lack of preparedness of the Senate to be consulted, that he never consulted them again on treaty matters.4 He established the cabinet in a way that has continued in traditionally in the same manner. When he asserted federal authority over the states during the Whiskey Rebellion, he tested the federalism structure of the Constitution.
It is fortunate that George Washington set in motion the traditions of the Executive branch, that was relatively moderate. He was under the watchful eye of the public, which had just fought a long revolution to rid itself of a monarchy, so that surely tempered his care in defining a head of state that would be held in check by the Congress and the Judiciary.
Some presidents who followed, thought to expand the power of the Presidency and tested the limits, often to their own detriment, politically.
Andrew Jackson, 7th Pres. (1829 to 1837) challenged the power of the U.S. Supreme Court to reign in his violation of the U.S. treaty with the Cherokee Nation with their decision in Worcester v. Georgia. That case held that Georgia could not impose its state laws on the Cherokee Nation by forcibly removing them from their reservation lands. However, Jackson backed up the state of Georgia by sending in the military to assist the State in violating the law which is the travesty of the Trail of Tears, one of the genocidal policies of the Jackson Administration, and a case that has been used by Russia to show that the U.S. was engaged in genocide of its own people.5 (For this, many argue that Jackson should be removed from the honorific placement on the twenty-dollar bill.) His blatant refusal to be checked by the U.S. Supreme Court has tarnished his Presidency to this day.
Abraham Lincoln, 16th Pres. (1861-1865) used Art. II powers during the U.S. Civil War to suspend the writ of habeaus corpus, issued the Emancipation Proclamation, and declared martial law in the southern United States.
But there is more. Lincoln enlarged the army and navy, directed the building of ships, and ordered the Treasury to pay for them. These actions probably violated Art. I, Sec. 9, “no money shall be drawn from the Treasury, but in Consequence of appropriation made by law; and Art. I, Sec. 8, cl. 12 and 13 which gives Congress the power to raise and support armies. However, Congress ratified Lincoln’s unauthorized actions. Can Congress’s post-action ratification make it constitutional?
Yes. The United States Supreme Court has upheld Congressional ratifications of Presidential actions, post-action, concluding that “Congress may, by enactment not otherwise inappropriate, ratify acts which it might have authorized’ and give the force of laws to official action unauthorized when taken”.6
Andrew Johnson, 17th Pres. (1865 to 1869). Because of this wide sweeping use of Executive power by President Lincoln, President Andrew Johnson who followed Lincoln (being sworn in after Lincoln’s assassination) were significantly restrained by Congress, such as Pres Andrew Johnson, who was prohibited from firing cabinet members once confirmed by the Senate. Johnson vetoed the bill, that was followed by a Congressional override, then followed by an impeachment (that required the raffle of tickets) when Johnson fired a cabinet member in defiance7 — all a test of Executive power.
Theodore Roosevelt, 26th Pres. (1901-1909) is known to have significantly expanded the Presidency to what is the modern day power of the presidency.
Woodrow Wilson, 28th Pres (1913-1918). Wilson used a presidential directive to declare a national emergency, and was the first to do it in 1917. He was also the first President to create agencies with presidential directives, when he created the Food Administration, and the War Trade Board.
Franklin D. Roosevelt, 32nd Pres.(1933-1945). FDR is often cited as one of the most powerful presidents in U.S. history, due in part to his extensive use of executive orders and his expansion of the federal government's role in economic and social policy. He used his executive powers to create programs like the New Deal, establish the Social Security system.
President Roosevelt’s first official act was to declare a national emergency in 1933, in conjunction with the Trading with the Enemy Act, which gives the President power to regulate economic transactions during a declared national emergency. The U.S. remained in an official state of emergency for the next 45 years --- until 1978.
President Roosevelt is also responsible for the order EO 9066 which ordered the interment of more than 100,000 residents thought to be of Japanese descent from their homes into camps in 1941. (Many northwestern U.S. Native Americans were also caught up in this net that interned people based on their appearance.) The basis for this action was solely that of Art. II. Congress did later ratify and confirm the executive order. The Judicial branch reviewed these actions for constitutionality and upheld this Executive power in 1941 —another test of expanding Executive power that has been a cloud over this President’s legacy.
President Truman, 33rd Pres. (1945 to 1953) About 1952, President Truman seized private U.S. steel mills in the U.S. (E.O. 10340), “by virtue of the authority vested in [him] by the Constitution.” However, the U.S. Supreme Court found that that order was invalid because it was not based on either existing statutory authority or constitutional authority.
The U.S. Supreme Court in an unusually bold opinion to define Executive power, Justice Jackson provided some standards for Presidential action to be constitutional. In Youngstown Steel, Justice Jackson described a range of three standards of the President’s constitutional authority to act: (1) when authority for the President is at its maximum, where there is both Presidential power and Congressional authority; (2) when the act is in the “zone of twilight” where Congress has not prohibited or authorized the act; and (3) when the act is at the “lowest ebb” of power, when the action is clearly incompatible with the express or implied will of Congress. These standards have stood the test of time and have continued to be used when analyzing Presidential authority.
Richard Nixon, 37th Pres. (1969 to 1974): Nixon's presidency is perhaps best remembered for the Watergate scandal. As part of that scandal, Nixon also tested the limits of Executive power by engaging in domestic surveillance which led to his historic resignation.
Nixon also ordered the bombing of Cambodia without congressional approval, testing the balance of powers between the President’s conducting of war and the Congressional power to declare war.
In 1973, Congress enacted the War Powers Act over the veto of the President which is Congress’s interpretation of the limit of the President to declare war or conduct military action. This is a rare Congressional action in defining how to limit the President’s power, which is in itself an affront to the balance of powers, so it remains very controversial.
Ronald Reagan, 40th Pres. (1981 to 1989) created the U.S. EPA by executive order, and it still exists based upon executive order authority. President Reagan suspended private claims in the federal courts against Iran through an executive order. The court upheld that action as constitutional, opining that authority had been delegated to the President through “acquiescence”.
George H.W. Bush, 41st Pres. (1988-1992), was notable because of his restraint in using President powers. There was some tension during the first Gulf War, where Pres. Bush sought the support, rather than approval of Congress to enter the war. Fortunately, it only lasted seven months.8
William J. Clinton, 42nd Pres. (1993 to 2001). In Reich in 1996, the court invalidated an Executive Order which was intended to overturn a 1938 Supreme Court case which interpreted the National Labor Relations Act to allow employers not to be required to accepting striking workers when they returned to work if the job had already been filled. The court held that this was essentially legislating which was the role of Congress, making this only the second Executive Order to be voided by the United States Supreme Court.
So we see a reluctance to balance Presidential power, with only two Executive Orders having been voided – 1952, 1996, evidencing an expansive reading of Article II.
George W. Bush, 43rd Pres. (2001-2009) President Bush issued an executive order authorizing the use of military tribunals to try suspected terrorists, which was challenged in court as an unconstitutional expansion of executive power.
President Bush used signing statements to assert his interpretation of legislation and sometimes to declare his intent to disregard certain provisions of the law. This practice was controversial and faced criticism from legal scholars who argued that it was an unconstitutional attempt to circumvent the separation of powers.
Barack Obama, 44th Pres. (2009-2017). President Obama issued a significant number of executive orders during his time in office. Some of these orders were controversial and faced legal challenges, such as the Deferred Action for Childhood Arrivals (DACA) program, which provided a pathway to citizenship and protection from deportation for certain undocumented immigrants who arrived in the U.S. as children. This 2012 Executive Order was found to be unconstitutional by the Fifth Circuit panel in October 2022.9
Donald Trump, 45th Pres. (2017-2021). In 2019, President Trump declared a national emergency at the southern border, allowing him to redirect funds from other programs to build a border wall without congressional approval. The U.S. House of Representatives filed suit as a party against the President on the basis of the Appropriations clause, the first ever since the Constitution had been ratified. However, the U.S. Supreme Court in 202110, held that the House could not be a party to sue the President.11
Pres. Trump withdrew the United States from the Paris climate agreement and the Iran nuclear deal, which was seen as an expansion of Executive power where Congress was not consulted.
Scholars who think it isn’t working:
From time to time constitutional scholars say that the balance of powers is not working. Prof Richard Epstein, in 2005, declared that the President clearly did not have the authority to pursue warrantless searches for foreign intelligence;12 yet he had to justify his argument through a narrow analysis of the President’s Art. II power in military strategy that would have certainly violated the inherent power of the President in Article II.
Another two colleagues Prof. Balkin, Yale Law School and Prof. Levinson of Univ. of Texas School of Law, insist that the separation of powers doctrine and the checks and balances are not working because Madison and others did not foresee political parties who would cooperate in the different branches of government, thereby threatening the checks and balances.13 But arguments purporting to be scholarly should not rely on disparaging the President for their voracity.
The structure of the Constitution is genius, and the checks and balances are a system of tension that ensures us that the system is working. Reflection on the success of our 247-year history is evidence of this. It is this constant testing that makes the system work. Profs. Epstein, Balkin and Levinson contribute to making this work with robust discussion. Discussion of the balance of these powers in a free society ensures that it continues to work. Newt Gingrich once said about political disagreement something to the effect that, “there is nothing un-American about being wrong.”
When the power of the President is being checked by another branch our system relies on that checking process to be about constitutionality rather than personality or party differences. The continued success of our system requires the discipline to focus on issues of constitutionality. As this brief history of the Presidents and their tests of the scope of their powers demonstrates —there will be more challenges in our future.
So what would George Washington think of what the Presidency has become? He would likely be glad to see the state of the union was still being given each year, as he determined was required. He would likely agree with every President since, that seeking the advice and consent of the Senate has its limits both substantively and procedurally. He would likely be most surprised by the exponential growth of the Executive branch compared to the other branches with its sprawling departments, agencies and employees.
Then he might give us the smile that we see on his face in the middle of the one dollar bill.
The “Althing” in Iceland is probably the first parliament/legislature in history, that met first in 930 B.C..
Religious courts of justice have existed for millenia (Jewish, Christian, Islamic). The Apostle’s Gate of Cathedral de Valencia where the Tribunal de Les Agüas de la Vega de Valencia (or “Water Court”), meets every week, has done so in the same place for 1100 years, Probably started by the Romans, and continued by the Spanish, this court decides irrigation issues and is considered the oldest continuous court in the world.
Drucker, Miracle at Philadelphia 1787 (1966) p. 59-60.
Lindsay M. Chervinsky, “Interpreting Article II, Section 2: George Washington and the Presdent’s Powers, 37 Law and History Review 725-741 (2019).
https://ictnews.org/archive/indians-killed-in-american-genocide-memorialized-in-moscow
Wayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 301-302 (1937) at https://www.law.cornell.edu/supremecourt/text/300/297 .
https://www.history.com/news/andrew-johnson-impeachment-tenure-of-office-act
The Persian Gulf War or Operation Desert Storm, began on August 2, 1990, when Iraq invaded Kuwait, and it ended on February 28, 1991, when a ceasefire was declared.
https://www.ca5.uscourts.gov/opinions/pub/21/21-40680-CV0.pdf .
Biden v. Sierra Club, ___U.S. ___ (2021), Case: 20-685, 10/08/2021 at https://www.aclu.org/cases/sierra-club-v-trump-challenge-trumps-national-emergency-declaration-construct-border-wall?document=sierra-club-v-trump-supreme-court-order-granting-petition-writ-certiorari-and .
https://rollcall.com/2021/10/12/supreme-court-ends-legal-clash-over-border-wall-spending/
https://law.hofstra.edu/pdf/academics/journals/lawreview/lrv_issues_v34n02_bb1_idea-epstein_final.pdf
https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1051&context=schmooze_papers at p 130-131.
Excellent background on Presidential powers. Thanks for overview.