One of the most persistent controversies in our political culture is whether the power of the President has expanded too far. Critics argue that this trend threatens our democracy. Gene Healy, a lawyer and senior vice president for policy at the Cato Institute, is among those eloquent critics. Healy, whose research focuses on executive power and the presidency, has written numerous books. His The Cult of the Presidency, also entitled America’s Dangerous Devotion to Executive Power, is now in its third edition; it was first published in 2008.
This latest edition could be an instance in which we invoke the French adage “Plus ça change, plus c’est la même chose,” or, in English, the “more things change, the more things remain the same.” As he did in 2008, Healy expresses frustration with the American public’s acceptance of broad presidential power. In the Preface to the third edition, he warns that the modern presidency is on a “long march toward full-spectrum dominance of American life,” a prospect that is both “absurd and menacing.” He also contends that “our political culture has invested the office with preposterously vast responsibilities, and, as a result, the officeholder wields powers that no one human being ought to have.”
Healy remarks that neither the Left nor the Right sees the President as the Framers viewed him: “a constitutionally, constrained chief executive with an important but limited job: to defend the country when attacked, check Congress when it violates the Constitution, enforce the law–and little else.” Healy laments that conservatives and liberals alike advocate an expansive presidency. What is probably even worse, according to Healy, is that few Americans are troubled by the notion that the President’s duty is to “solve all large national problems and to unite us all in the service of a higher calling.”
One of Healy’s most provocative observations is that our fixation with presidential power aggravates the modern polarization of our society along political and ideological lines. In his view, over the past fifteen years, American politics has “gone feral,” with a rise in “mass partisan hate,” or “political sectarianism.”
Addressing recent presidencies, Healy singles out President Barack Obama, with particular emphasis on his second term. Then, Obama tried to govern by executive order, boasting that “I’ve got a pen and I’ve got a phone.” But Healy’s criticism extends to presidents of both parties. Although he vigorously criticizes Presidents Obama and Biden for excessively exercising presidential power, he does not spare the first Trump administration. Healy recalls President Trump’s authorization of the killing of an Iranian general in January 2020. Healy asserts that this was the “first time an American president publicly ordered the assassination of a top government official of a country we were not legally at war with.” Healy characterizes that action as a “major usurpation” of an authority reserved to Congress–insofar as no declaration of war had authorized the drone-fired missile at issue. He also criticizes President Trump for invoking a national emergency to justify diverting $5 billion in funds to building a wall on the U.S.-Mexico border.
Healy notes that both Presidents Trump and Biden confronted the genuine national emergency of the COVID-19 outbreak with an expansive view of presidential authority, but Biden issued many more sweeping decrees that interfered with our public life in the name of “public health.” This extended to Biden’s invocation of an emergency power statute to cancel up to $600 billion in student loan debt, a decision later rebuffed by the Supreme Court.
Healy’s contributions defy the modern trend. The expectation that a modern president should have expansive authority is found in the writings of many if not most prominent political scientists. For example, in 1956, the renowned Clinton Rossiter published The American Presidency. Rossiter emphasized his “feeling of veneration if not exactly reverence, for the authority and dignity of the presidency.” Healy recounts that Rossiter outlined many distinct roles that the public expected a modern president to fulfill, but Healy contends that many of those roles are nowhere to be found in our Constitution. For example, Rossiter had described the President as a world leader, protector of the peace, manager of our prosperity, chief legislator, the manager of the nation’s prosperity, and the voice of the people. Another prominent political scientist, Theodore Lowi, concluded that we have a “plebiscitary presidency,” under which the public grants it “all powers” to govern us..
Healy observes that if the public is unhappy with the current presidency, it is because the public has created extraordinary demands upon that office. But Healy rejects the prevailing wisdom of these political scientists’ propositions. Turning to our nation’s political founding, he reviews the 1787 Philadelphia Convention and the Founders’ understanding of the presidency states that they did not want the “new president” to be an “elected king.” Within the limited national government they crafted, the Founders did not anticipate the vision of Rossiter and others. The President could “respond to sudden attacks by hostile powers,” but he would not be “The Voice of the People, the Manager of Prosperity, nor the Chief Legislator,” Instead, under Article II, Section 3, the President was entrusted with “faithful execution of the laws.” Healy cites James Wilson’s statement to the Pennsylvania ratifying convention that a president could not “involve us in such distress; for the important power of declaring war is vested in the legislature at large.” Healy acknowledges that Presidents Andrew Jackson, James K. Polk, and Abraham Lincoln expanded presidential power in various respects, but he argues that “even the most aggressive 19th-century presidents are better understood as departures from the constitutional traditions” of that century.”
Healy traces the rise of the modern expansive presidency to President Woodrow Wilson who, in the milieu of the Progressive movement, expanded presidential domination in both domestic and foreign affairs, capped by a crackdown on civil liberties after our entry into World War I. (A similar aggressive stance had been taken by President Theodore Roosevelt, but it was of shorter duration.) With President Franklin D. Roosevelt’s New Deal intrusion of the federal government into the economy and his exercise of broad powers during World War II, the structure of what we call the administrative state became solidly entrenched. Healy contrasts that aggressive leadership with the presidencies of Harding and Coolidge, which were marked by restraint.
Healy rejects the views of several modern conservative commentators, such as Professor John Yoo, a one-time high-level official in the Justice Department under President George W. Bush who argued for broad presidential powers. Both before and after the 9/11 terrorist attacks, Yoo asserted that the President needed a broad array of powers to address foreign policy crises, including the waging of war. Yoo held that his interpretation of such power was consistent with the Founders’ understanding. Healy characterizes Yoo’s theory as encompassing a presidential power “to start preventive wars; to order torture, even where prohibit by treaty and statute; to arrest terrorist suspects–even Americans captured on American soil–and hold them without legal process; and to engage in domestic surveillance outside the legal framework set up by Congress.” Healy acknowledges that expansive presidential power is enabled by Congress, for it essentially has abdicated its lawmaking responsibilities. Commentators such as Philip A. Wallach of the American Enterprise Institute also have lamented this trend.
Are there tangible reforms that could rein in our expansive presidency? In his final chapter, “Return to Normalcy,” Healy strikes a pessimistic note. He contends that structural reforms are not realistic unless the American public lowers its demands and expectations. As long as the public “cling[s] to the romance of the Heroic Presidency–so long as we demand what the office cannot provide–even the most well-crafted five-point plan for restoring the constitutional balance of power is likely to fail.”
Healy identifies measures that could “roll back” the expansion. Congress could resist delegations of power and assert its power to “veto” executive branch rulemaking. Congress also could amend its War Powers Resolutions to require a formal declaration of war before a president could commit troops for sustained combat efforts. But Healy concludes that the American public must abandon its “outsized demand” that can render the presidency both “menacing” and yet ultimately ineffectual.
These issues are as pressing today as they were fifteen years ago. President Trump’s recent imposition of tariffs under the International Emergency Economic Powers Act (IEPPA), founded on both domestic and national security considerations, was rebuffed by the Supreme Court in its Learning Resources decision. The Court invoked the “major questions” doctrine, i.e., if Congress intends to delegate its power to make decisions of vast economic or political significance to the Executive Branch, it must do so clearly, to hold that IEEPA’s language did not support President Trump’s unilateral action.
In contrast, Congress, so far, has not interfered with President Trump’s use of military force to oust Nicolás Maduro, Venezuela’s putative President, or – just recently – his decision to attack Iran’s terrorist regime in order to thwart its aggressive nuclear weapons program. Perhaps that inaction reflects the deference that Congress (and the Court) traditionally have given to the President in the realms of foreign policy and national security. Still pending of course, is the issue of the President’s authority to remove the members of “independent agencies.” Is the “vigorous executive” urged by Alexander Hamilton in Federalist 70 a threat to our liberties—or ultimately necessary in our unstable world? The questions of broad, or limited, presidential power remain with us today.
