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Current time:0:00Total duration:11:25

Video transcript

so I'm here with Jeffrey Rosen the head of the National Constitution Center in Philadelphia and what I want to out of this video Jeffrey is how has the powers of the President how they changed over time since the the ratification of a constitution well they've hugely expanded and it's so striking that the framers of the Constitution were concerned that Congress would be the most dangerous branch and they were so concerned about that that they split Congress into and created this bicameral legislature the House and Senate in order to divide its powers they would have been stunned to learn that the president is twice as powerful as Congress today they created a unit unitary executive because they were less concerned about executive than congressional tyranny and it's really interesting to think about why that why that happen and what do you mean by the the president today is twice as powerful as Congress well I guess that was a hypothesis but it's arguable that having assumed powers to deploy troops without congressional authorization to target and kill American citizens abroad to engage in executive orders without congressional approval critics of the expansion of presidential power say that the president has used SERP to congressional authority he's exceeded his power under the take care Clause of article 2 section 3 of the Constitution and that in this way presidential authority is hugely expanded where all congressional authority has contracted I see and and what what are I mean what are the dynamics that allowed this to happen over the last several hundred years well there's a wonderful essay on the National Constitution centers interactive Constitution by William Marshall and it's you can find it if you click on article two section three and and William Marshall is trying to figure out what some of these dynamics were and he comes up with a bunch of reasons why the president has been so dominant first he says political culture that the president has become the focus of national power and culture in a way that he wasn't in a pre-internet pre television pre radio age and this was the case even during World War two when justice Jackson and the steel seizure case that we talked about before talked about executive power having the advantage of concentration in a single head and whose choice a whole nation has a part making him a focus of public hopes and expectations but there's no question that the focus on the individual person of the presidency has vastly expanded it's just this idea that there's one person there people associate that person hey there are head of state they put their hopes and fears on that person that that just gives them inherently more power it does and you know you can call it culture you can call it celebrity but it's so striking that the cut the frameworks are so concerned that the president not be a king and they reject Alexander Hamilton's suggestion which again we don't from the musical that the president be elected for life they they want to have four-year terms and then the subsequently a constitutional amendment is passed the 22nd amendment to limit the president to only two terms and despite all that the presidency has expanded so much it's not only the political culture Marshall points to a bunch of other reasons executive branch precedents basically every president has been successful in asserting increasingly sweeping exercises of executive power this is a bipartisan phenomenon from President Clinton to George W Bush to President Obama the office of legal counsel in the Justice Department has authorized increasingly sweeping exercises of executive authority and we find presidents of both parties either criticized or praised for having established these executive branch presidents there's also just the expansion and just to make sure I'm sure I mean it's just this idea that even if if you were just president I come into office I might even be more restrained but then the next guy or or gal that comes in can cite your presidency and say hey he did it why shouldn't I be able to do it so there's this it's it's never gonna go back precedent will never take you take powers away the lonely add dual that's exactly right and this and this really important but not so well-known office the Office of Legal Counsel which several Supreme Court justices have been the head of is basically a mini Supreme Court for the executive branch and it issues opinions about what the president can do and those opinions are relied on by subsequent presidents to justify the expansion of executive power that's a um you know not all presidents have taken this view my I'm writing a book now that William Howard Taft who was the only president who went on to become chief justice and he thought he had a very literalist or judicial conception of the presidency he thought the president could only do what the Constitution explicitly authorized he refused to take actions that he thought weren't authorized by the Constitution and in this sense he gives us a vision of what a more constitutionally constrained presidency would look like but even though he did that as we were just talking about people who came after Taft could just cite people before Taft and say that's absolutely right in Taft predecessor Theodore Roosevelt had the most sweeping conception of the presidency he said the president can do whatever the Constitution doesn't exclusively forbid and his stewardship conception of the presidency definitely has been vindicated by time and you'd have to say presidents today are much more Roosevelt in than they are the heirs of Weimar Taft yeah so what other dynamics are at play we talk about political culture that celebrity into one person this precedent that keeps expanding powers what else well there's the huge expansion of the federal government and the administrative state and the growth of executive agencies in a post New Deal period from the Environmental Protection Agency and even progressive era agencies like the Federal Trade Commission or the Federal Reserve and workplace safety National Park Management smokestack emissions college sports there's almost no area of American life that these executive agencies don't regulate the president by appointing the heads of these agencies and having the ability to fire them can issue executive orders that have the force of law even though they're not passed by Congress and that can lead to really dramatic clashes between the president's use of executive orders and what Congress says that it actually intended as we've seen during the Obama administration so that's a big factor as well and and what other dynamics are there well the modern world is moving a lot faster in an age of the internet and instant communication there are a lot more emergencies attacks are much more sudden than they were at the time of the framing and have to be repelled more quickly so just the speed of contemporary life has led to the president to assert new emergency powers and then finally and I'm just tracking William Marshalls great essay your there's the rise of partisan politics because of Congress becoming so polarized often people in Congress see their responsibility to support their party rather than to take seriously their constitutional or institutional duties as legislators so they may be unwilling to or a check the president's power when their party is in the majority they're just willing to write the president a blank check when he happens to be a member of their party and I can see that when when it's the same party in charge of Congress and the president see but what about when it's the other way around obviously you know the recent times it seems like the Congress is being very effective at at limiting presidential power well because of partisan you do have either congressional inaction or refusal to act on presidential proposals but often critics of congressional inaction complain Congress is refusing to veto bills for example sorry to override presidential vetoes or to refuse to pass laws on constitutional grounds instead they're filing lawsuits they're kicking things up to the court when when President Obama issued his executive orders about immigration there was a lawsuit filed so increasingly the judiciary is becoming the arbiter about disputes between Congress and the president the framers expected a much more direct clash between the President and Congress and thought that both of those branches of government would make decisions on constitutional grounds and would directly check each other it's this idea that instead of Congress passing legislation and then president either signing them or vetoing them that when you have this gridlock that the president starts taking more executive orders and then Congress takes the president to court that's a very well stated and it's definitely not with what the framers intended interest so this is really family just to go over them once again when you just have one person in charge and this is you know it starts prime you know with Washington who was this you know huge personality obviously American hero and that's what that that by itself put a lot of power and the president then every president comes along and maybe does a little bit more the ones that came before it and then anyone can cite that president today he pulled it off why can't I as you mentioned the federal government is far far far larger than it was in the time of when they were when the Constitution was written and in the time of Washington and and just the speed with which things are happening that's necessary for a president to whether it's in war or regulation or other things to just be able to take action quickly and then finally partisan politics I guess you know that one it seems that could be debated either way depending on which parties are in power where but it is fascinating it does seem like this has been a very clear trend over time it's true that's those are all great reasons offered by William Marshall and his interactive Constitution I say there's one other factor and that is the fact that both branches the President and Congress are not evaluating their actions on constitutional grounds the way they used to the president has the veto power under article 1 section 7 and in at the time of the framing the president's often issued vetoes on constitutional grounds President Andrew Jackson who vetoed the reach are during of the second bank of the United States vetoed it on the grounds that he could veto any bill that he considered unconstitutional and he sided with Thomas Jefferson's view that the bank was unconstitutional rejecting the view of Hamilton and George Washington that it was okay but nowadays presidents tend not to issue vetoes on constitutional grounds in Congress tends not to debate bills and constitutional terms and as a result critics on both sides of the aisle say both branches are exceeding their constitutional powers and failing adequately to check the constitutional excesses of the other branch it's fascinating something I never fully appreciated that what you mention is historically you know Washington and Adams and Jefferson they viewed their veto as kind of like a light Supreme Court a little bit like is this constitutional or not and that's why I'll veto it but then later President started to say no if I just disagree with it I just think it's a bad law I will veto absolutely in this idea that the Supreme Court is the sole authority arbiter of constitutional the constitutionality of laws would have surprised the framers they had a theory of depart mentalism they thought that all three branches had an obligation to evaluate the constitutionality of laws the Congress when they passed a bill the president when he signed it and the courts when they reviewed it and only when all three branches agreed to the law go into effect but that now we tend to punt all constitutional questions to the Supreme Court and that has left something of a vacuum on the side of the President and Congress well thanks so much for this stuff thank you