Presidential Power
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.
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.”
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,” while the executive power was not expressly limited by enumeration since it was “vested in the President of the United States.”
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.”
The impact of a unitary executive (and Imperial Presidency) can be seen in the Presidency of Franklin D. Roosevelt. 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. 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 is described as expanding the role of the president from being that of the chief executive to also include that of a chief legislator. Since then, the trend of increasing presidential power at the expense of the legislative branch has continued.
With potentially many unenumerated powers vested in a unified executive, and an increasingly independent one at that, 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 (Think Abraham Lincoln and the Civil War suspension of Habeas Corpus, or FDR and the Great Depression as well as WWII, or Donald Trump and an alleged immigration emergency necessitating a wall)?
