Roundtable #1 | The History of Executive Power and Its Modern Uses

The question of executive power has plagued the United States since its inception. Historically, power has been vested in the legislature, but modern presidents have bucked precedent by using executive orders to establish government agencies, skirt laws which they disagree with, and to issue unprecedented immigration policies.

This roundtable discussion will present the legal history and analyze recent court cases pertaining to executive power so that we might present a reasonable picture of its future. The Founding Fathers originally imagined the United States as a nation with strong national legislature with power primarily vested in state governments.

It is important to recognize the structures responsible for this dramatic shift from state-local rule to national rule and from legislative governance to executive governance if we are to properly prepare for the repercussions of those realignments. If we are not careful during this liminal phase, unnecessary power may become vested in offices where it does not belong, putting American democracy and life as we know it at risk.

Executive Editor Online

Abigail Hickman

Alexander Hamilton wrote in favor of a strong unitary executive in Federalist Paper No. 70:

Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks...to the steady administration of the laws; to the protection of property against those irregular and high handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. [1]

Unity was a main ingredient in Hamilton’s conception of the “Energy of the Executive.”  During the Constitutional Convention, the Framers were hard-pressed to create a stable government that could walk the tightrope between liberty and authority. An executive with a single person at its head looked remarkably like the monarchical authority they sought to escape through the Revolutionary War. But, as Hamilton notes, an executive council, or a council not otherwise unified under a single head, was susceptible to other problems. Along with the potential for disagreement among heads of an executive branch, one of the “weightiest objections to a plurality in the Executive…is, that it tends to conceal faults and destroy responsibility.” [2] A unified executive, on the other hand, Hamilton argued, would be readily watched and easily scrutinized, especially by public opinion. Moreover, a unitary executive would act with great “Energy,” and is less liable to the slow decision-making process that plagues the legislature; the executive could, for example, in instances of national security or conduct of war, act quickly with “vigor and expedition.” [3]

The unified theory endorsed by Hamilton won out, Article II of the Constitution vested “the executive power” in the President. [4] The same article, then, proceeds to describe various enumerated executive powers: the President shall be commander-in-chief of the Army and Navy; make treaties with the advice of the Senate; nominate ambassadors, consuls, other public ministers, and Judges of the Supreme Court with the advice of the Senate, &c. Section 3 specifically delineates that the President “shall take care that the laws be faithfully executed.” [5] In his Pacificus Letters No. 1, Hamilton noted the differences between how the legislature and executive were granted their powers in the Constitution. Specifically, the legislative powers were explicitly limited: “All legislative powers herein granted shall be vested in a Congress of the United States,” [6] while the executive power was not expressly limited by enumeration since it was “vested in the President of the United States.” [7] Hamilton states:

“The enumeration ought therefore to be considered as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government... the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.” [8]

With potentially many unenumerated powers vested in a unified executive, could such a concentration of executive power, especially when enabled by Congress, be an assault on democracy? Or can such concentration be necessary in extenuating and (critically) temporary circumstances?

Jake Gray

Every president throughout American history has expanded their powers. This ambition was anticipated by Publius as he writes in Federalist 51, “the structure of the government… may be the means of keeping each [branch] in their proper places… Ambition must be made to counteract ambition.” [1] Through a system of checks and balances, the framers intended for the Legislative and Judicial branches to safeguard against an energetic executive that could easily abuse its power. However, the framers did not envision that by the 1960s, during a time of war and chaos, the ambitious nature of the executive would transform into an “imperial presidency” where presidential powers become uncontrollable.

The emergence of an imperial-like president can be traced back to President Franklin D. Roosevelt. He reshaped the image of the presidency to be the caretaker of the people in times of emergencies by heavily influencing legislation. As a result of his actions, President Roosevelt pulled the nation out of the Great Depression with Congress delegating much of its power to the executive to create the New Deal—a series of acts intended to help the economy. As a result, as Professor Yoo from Berkeley Law School explains, “the New Deal did not just produce a federal government of broad power… it produced a presidency that was more institutionally independent of Congress” than ever before. [2] The establishment of a new bureaucracy that could enforce and set its own regulations, made the executive more unilateral. Throughout his 12 years in office, Roosevelt expanded the role of the president from being the chief executive to also a chief legislator. [3]

Since then, presidents have followed on the path of expansion, acting unilaterally and weakening congressional checks. Presidential power has always increased during times of war and emergency; however, by the 1970s, it became clear that efforts for Congress to check the president have become futile as demonstrated by the War Powers Resolution of 1973. Although only Congress holds the power to declare war, as prescribed in Article 1 Section 8 Clause 11 of the Constitution, the president as Commander-in-Chief can deploy troops without Congressional consent, as seen with the Kennedy, Johnson, and Nixon administrations during the Vietnam War.[4] As a result, the War Powers Resolution was passed, which requires the president to notify Congress of troop deployment within 48 hours and orders removal of troops after 60 days if Congress does not extend the deployment. [5] Despite Congress’ attempts to limit the president’s power in regards to armed conflict, violations of this act have gone unchecked.

In March of 1999, President Clinton violated the War Powers Resolution. He involved American troops in air combat without congressional authorization in the Kosovo bombing campaign against Yugoslavia. As a result, Clinton was sued by 26 members of the House in Campbell v. Clinton (1999). Despite Clinton’s clear stretch of presidential power, the case was dismissed on the grounds that the plaintiffs lacked legal standing to sue, leaving the president’s overuse of executive powers unchecked. [6] Consequently, this lack of effective checks confirms the notion that an “imperial presidency” has emerged and still remains.  

Two decades later, the executive has arguably become the most powerful branch. Years of unchecked actions have resulted in an unconstrained, unilateral presidency. Today, we see an imperial president who uses the past expansion of powers to his advantage and pushes his constitutional boundaries even further. Without a unified legislature, it is inevitable that presidential powers will only continue expanding evermore.

Tiffany Jing

The Jacksonian Presidency offered one of the first expansions of executive power in the new American republic. Andrew Jackson repeatedly sparred with other branches of the United States government, with a fierce backlash against the authority of the Supreme Court. For example, Jackson remarked the following regarding the role of the Supreme Court: “It is as much the duty … of the president to decide upon the constitutionality of any bill or resolution … as it is of the supreme judges when it may be brought before them for judicial decision.” [1]

This line of thinking pervaded Jackson’s presidency, with him not enforcing the Court’s decision in Worcester v. Georgia, which recognized the land rights of the Cherokee Nation in Georgia, and proceeding with his Trail of Tears. [2] President Jackson’s intense usage of executive power to achieve his policy goals was also apparent in the conflict over the Second Bank of the United States. [3] Jackson directly sparred with Congress and vetoed the charter for the bank, arguing that it was unconstitutional even though the Supreme Court had validated its constitutionality in McCulloch v. Maryland. [4] Arguably, on multiple occasions, President Jackson did not respect judicial authority and sought to expand presidential power.

President Abraham Lincoln dealt with the outbreak of the Civil War for most of his presidency. As the war proceeded, President Lincoln and Congress did something previously unheard of in American democracy—they suspended the writ of habeas corpus, which prevents individuals from being jailed unless they had proceeded through a trial. [5] This is a right that forms part of the backbone of the civil liberties enshrined within the Constitution, so the suspension of this writ truly was unprecedented. Many at the time regarded the action as imperative due to the circumstances. [6] Indeed, one could argue that this expansion of executive power was because of a real state of emergency: insurrectionists in armed conflict with a potential ability to destabilize the state. Even though the state of emergency was apparent, the degradation to American civil liberties and institutions also was apparent.

Finally, the presidency of Theodore Roosevelt offered a major expansion of presidential power as the United States proceeded into the 20th century. President Roosevelt utilized the power of executive orders (on more than a thousand occasions), many of which were centered on his key passion: conservationism. [7] These orders included the foundation of new national parks, forests, and monuments. [8] At the time, many in the legislative branch opposed such an executive order for the very reason that they are criticized today: they expand executive power while circumventing legislative authority and the principles involved with state’s rights. [9] Indeed, while our history previous shows an instance of executive overreach, it also simultaneously shows intense dissent over whether such actions by the executive branch is truly in accordance with the Constitution.

These instances in history demonstrate the growing role of the executive over time and how different circumstances can lead to different ways that executive power is invoked. Executive powers expanded significantly further in the latter half of the 20th century and the 21st century.

Abhishek Hariharan

Donald Trump’s use of executive powers has been among the most controversial of recent presidential history. Perhaps the most famous use of Trump’s executive power is the “Muslim Ban,” which actually refers to three separate executive orders that were challenged multiple times in various state and circuit courts across the country before making it to the Supreme Court in late 2017.

On January 27, 2017, President Trump issued the Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States [1], which has since come to be known as the “Muslim Ban.” [2] Executive Order 13769 “banned foreign nationals from seven predominantly Muslim countries from visiting the country for 90 days, suspended entry to the country of all Syrian refugees indefinitely, and prohibited any other refugees from coming into the country for 120 days.” [3] The seven countries were Iraq, Iran, Yemen, Libya, Somalia, Sudan, and Syria. [4] Washington state asked for an “emergency motion to stay the order pending appeal,” which the Ninth Circuit denied in early 2017. [5] Right after the state of Washington’s challenge, on March 6, 2017, Trump issued another order of the same name, Executive Order 13780, a revision of his January directive. [6]

According to Gibson-Dunn, a Los Angeles-based law firm, although 13769 was technically rescinded by the March revision, 13780 essentially functioned as an updated version, performing the same functions as its predecessor. However, it did provide for several exceptions not included in 13769: Iraq was removed from the seven countries “affected” by the 90-day travel restriction, and a number of other exceptions were made for refugees, dual citizens, green-card- and other visa-holding American residents who are citizens of one of these countries, and diplomats. [7] 

On June 26, 2017, the Supreme Court issued a per curiam (“by the court,” or collective) [8] ruling in Trump v. International Refugee Assistance Project and Trump v. Hawaii. The Court unanimously agreed that they would allow Executive Order 13780 to take effect, with the exception of those citizens from the six named countries with “a close familial relationship” with a United States resident. [9] In these cases, the Court also stayed, or “undid” the rulings of the Fourth Circuit and Ninth Circuit for security purposes. [10] However, these were temporary stays: in the same document, the Court issued a writ of certiorari, meaning that they would hear the full cases later. [11]

After challenges to 13780 in both the Fourth and Ninth Circuit Courts of Appeals, Trump issued yet another order, this one called the Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, on September 24, 2017. [12] While this order retained the ban on the six countries named in 13780, it added restrictions to the travel of North Koreans and Venezuelans. [13] However, the American Civil Liberties Union (ACLU), which had been involved in the challenges to the two previous executive orders, stated that the new executive order still only affected travelers from Muslim countries in any material sense. [14] This final Muslim Ban’s trip to the Supreme Court was circuitous. Several state courts challenged the ban in some form, including Maryland, New York, Montana, North Dakota, Washington state, and Hawaii. Maryland in particular drew attention for issuing a “stay” on the ban. [15]

Finally, in June 26, 2018, in Hawaii v. Trump, the Supreme Court issued a 5-4 decision in Trump’s favor. [16] The opinion, which was joined by the Court’s five conservative-leaning justices (at the time, Anthony Kennedy, not Brett Kavanaugh, was on the Court), justified the legality of Trump’s final executive order on the grounds that it did not restrict travel from all predominantly Muslim countries and was therefore not truly a “Muslim Ban, and therefore did not violate the Establishment Clause of the First Amendment. [17] 

It is important to note that, unlike in the per curiam decision in International Refugee Assistance Project, the Court was firmly divided in Hawaii: in a dissent joined by Justice Elena Kagan, Justice Stephen Breyer asserted that Trump’s Proclamation was in fact a “Muslim Ban” that, in practice, issued very few visas under its so-called “exceptions.” [18] In a second dissent joined by Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor likened Trump’s Proclamation to the internment of Japanese Americans during World War II, and cited the President’s numerous verbal attacks on Islam as evidence of the Proclamation’s anti-Muslim bias. [19] Two concurring opinions, one by Justice Anthony Kennedy and one by Justice Clarence Thomas, were also written. [20]

For now, the “Muslim Ban” remains in place, and the country is divided over just what it really means and its implications for future presidents’ use of executive powers.

Sonia Mahajan

Bibliography

Response #1: Jake Gray

[1] Hamilton, Alexander. "The Federalist Papers: No. 70." The Avalon Project - Laws of War: Laws and Customs of War on Land (Hague IV); October 18, 1907. http://avalon.law.yale.edu/18th_century/fed70.asp.

[2] Ibid.

[3] Ibid.

[4] U.S. Const. art. I.

[5] LII Staff. "Article II." LII / Legal Information Institute. May 17, 2018. https://www.law.cornell.edu/constitution/articleii#section3.

[6] Ibid.

[7] U.S. Const. art. II.

[8] U.S. Const. art. II.

Response #2: Abhishek Hariharan

[1] Quoted by Rosen, Jeffrey in “Not Even Andrew Jackson Went as Far as Trump In Attacking

the Courts”. The Atlantic, 9 February 2017. Web. Accessed 9 March 2019.

<https://www.theatlantic.com/politics/archive/2017/02/a-historical-precedent-for-trumps-attack-on-judges/516144/>

[2] Ibid.

[3] Feller, Daniel. “King Andrew and the Bank” National Endowment for the Humanities,

January/February 2008 (Vol. 29, No. 1). Web. Accessed 9 March 2019.

<https://www.neh.gov/humanities/2008/januaryfebruary/feature/king-andrew-and-the-bank>

[4] Ibid.

[5] Ewers, Justin. “Revoking Civil Liberties: Lincoln’s Constitutional Dilemma”. US News, 10

February 2009. Web. Accessed 9 March 2019. <https://www.usnews.com/news/history/articles/2009/02/10/revoking-civil-liberties-lincolns-constitutional-dilemma>

[6] Ibid.

[7] “The Debate Over Executive Orders Began With Teddy Roosevelt’s Mad Passion for

Conservation”. Smithsonian, 17 April 2017. Web. Accessed 9 March 2019.

<https://www.smithsonianmag.com/history/how-theodore-roosevelts-executive-orders-reshaped-countryand-presidency-180962908/>

[8] Ibid.

[9] Ibid.

Response #3: Tiffany Jing

[1] Publius. "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments." Yale Law School: The Avalon Project 10, no. 7 (2008): 241-64. doi:10.9737/hist.2018.658. Accessed March 8, 2019.

[2] Yoo, John. “Franklin Roosevelt and Presidential Power.” Berkeley Law School. January 2018. Accessed March 9, 2019.

[3] Leuchtenburg, William E. "Franklin D. Roosevelt: Impact and Legacy." Miller Center. July 24, 2018. Accessed March 09, 2019. https://millercenter.org/president/fdroosevelt/impact-and-legacy.

[4] "Nixon and the War Powers Resolution." Bill of Rights Institute. Accessed March 10, 2019. https://billofrightsinstitute.org/educate/educator-resources/lessons-plans/presidents-constitution/war-powers-resolution/.

[5] Strasser, Ryan. "War Powers." LII / Legal Information Institute. June 24, 2017. Accessed March 09, 2019. https://www.law.cornell.edu/wex/war_powers.

[6] "Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999)." Justia Law. Accessed March 09, 2019. https://law.justia.com/cases/federal/district-courts/FSupp2/52/34/2522389/.

Response #4: Sonia Mahajan

[1] Executive Order Protecting the Nation From Foreign Terrorist Entry into the United States, White House, online at https://www.whitehouse.gov/presidential-actions/executive-order-protecting-nation-foreign-terrorist-entry-united-states/ (visited March 15, 2019).

[2] Timeline of the Muslim Ban, American Civil Liberties Union of Washington, online at https://www.aclu-wa.org/pages/timeline-muslim-ban (visited March 15, 2019).

[3] id

[4] Analysis of March 6, 2017 Executive Order on Immigration, Gibson Dunn, online at https://www.gibsondunn.com/analysis-of-march-6-2017-executive-order-on-immigration/ (visited March 15, 2019).

[5] Trump v. International Refugee Assistance Project, 582 U.S. ___, pg. 2 (2017).

[6] Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States.

[7] Analysis of March 6, 2017 Executive Order on Immigration, Gibson Dunn, online at https://www.gibsondunn.com/analysis-of-march-6-2017-executive-order-on-immigration/ (visited March 15, 2019).

[8] Per Curiam, Legal Information Institute, online at https://www.law.cornell.edu/wex/per_curiam (visited March 15, 2019).

[9] Trump v. International Refugee Assistance Project, 582 U.S. ___, pg. 9, 12 (2017).

[10] id, pg. 1-2.

[11] Writ of Certiorari, Legal Information Institute, online at https://www.law.cornell.edu/wex/writ_of_certiorari (visited March 15, 2019).

[12] Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats, White House, online at https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/ (visited March 15, 2019).

[13] Timeline of the Muslim Ban, American Civil Liberties Union of Washington, online at  https://www.aclu-wa.org/pages/timeline-muslim-ban (visited March 15, 2019).

[14] id.

[15] id.

[16] Trump v. Hawaii, Oyez, online at https://www.oyez.org/cases/2017/17-965 (visited March 15, 2019).

[17] Trump v. Hawaii, 585 U.S. ___, pg. 1-44 (2018)

[18] id, pg. 57-64

[19] id, pg. 65-92

[20] id, pg. 45-56