Donald Trump stated on April 13, 2020 that, as president, he can do anything he wants. “When somebody is the president of the United States, the authority is total and that’s the way it’s got to be. … It’s total. The governors know that.”

This prompted a number of rebuttals from various media and elected persons contending that the president is limited by the Constitution. The Washington Post, for example, quoted several law professors and elected officials, all of whom agreed that the president was wrong. the Post article is worth reading. But it doesn’t tell the whole story.

The actual power of presidents is two-fold. Presidents can do what the Constitution explicitly authorizes them to do. But they also can do whatever they can get away with in a particular situation. And “whatever else” is a wide-open door to all kinds of mischief.

Law Professor William P. Marshall published an article in the Boston University Law Review in 2008 called, Eleven Reasons Why Presidential Power Inevitably Expands and Why it Matters. He starts out:

The notion that presidential power has expanded exponentially since the time of the framing is, of course, uncontestable. The extent of that growth, however, is not always fully appreciated. 

Marshall draws support from Supreme Court Justice Robert Jackson who recognized in a famous case in 1952 that presidents operate in a “zone of twilight” in which the limits of their authority are unclear. More particularly, Jackson said the limits of presidential power are not meaningfully defined by the Constitution: 

The Constitution does not disclose the measure of the actual controls wielded by the modern presidential office. That instrument must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is. Vast accretions of federal power, eroded from that reserved by the States, have magnified the scope of presidential activity.

 Marshall’s article elaborates on the magnified scope of presidential activity, citing eleven particular reason why presidential power grows over time. Here, I’m using the headings from Marshall’s article but summarizing his reasons using my own brief and non-technical language. If you want the full benefit of Marshall’s knowledge, click the link above.

The Constitutional Indeterminacy of the Presidency

The Constitution is vague about what the president can do. It says, for example, that presidents must, “take care that the laws be faithfully executed.” That doesn’t put any limitation on what he can do. It doesn’t even require him to obey the law, because wherever two laws conflict a president can ignore one law (e.g., the human rights of individuals) for the sake of faithfully executing another (e.g., national security or immigration policies).

 The Precedential Effects of Executive Branch Action

Presidential power ratchets up over time because, once a president is allowed to take extreme action in a particular circumstance, later presidents get to do the same thing, too. Lincoln suspended habeas corpus during the civil war, so Trump imprisons immigrant children. According to Marshall, “[E]very extraordinary use of power by one President expands the availability of executive branch power for use by future Presidents.”

 

The Role of Executive Branch Lawyering

The limit of presidential authority is determined by the Office of Legal Counsel – a unit of the Justice Department. And the people who staff that office answer to the president. Trump has been criticized for appointing servile toadie William Barr to Attorney General. And rightly so. But President Nixon appointed his political campaign manager to that office and President Kennedy appointed his own brother. Presidents surround themselves with yes-men, and when they ask, “Can I do this?” they get told, “Yes, you can!”

 

The Growth of the Executive Branch

The US government’s executive branch employs over a million people. The US government’s executive branch has an annual operating budget of trillions of dollars. The US government’s executive branch has fighter planes, aircraft carriers and nuclear bombs. In contrast, the US Congress has a ceremonial Sergeant at Arms. It is silly to suppose, given that imbalance, that presidential and legislative powers are balanced. Marshall adds,

“The  President leads a federal bureaucracy that, among other powers, sets pollution standards for private industry, regulates labor relations, creates food and product safety standards, manages the nation’s lands and natural resources, enforces the federal criminal law, oversees the banking industry, and governs a host of other activities too numerous to mention. This may not have been the way it was intended. 

 Surely, the founders intended the president to implement and execute the laws. But they didn’t ever envision the extent to which modern presidents would pressure Congress to pass the laws they want, or the extent to which modern executive branch agencies would make up laws of their own (regulations) outside of the congressional process, or the extent to which modern presidents would encroach on states’ right and individual rights.

  

Presidential Control of the Administrative State

The mere fact that the executive branch is large and extensive would not necessarily increase presidential power. If the bureaucracy acted independently, it could constrain the president. In the past, it did. The bureaucracy was described as a “fourth branch” of government and presidents had to learn to deal with them. But recent presidents, Clinton and George W. Bush especially, have brought the bureaucracies to heel.

 

Presidential Access to and Control of Information

Whatever is known about any social or political or economic or diplomatic or scientific topic is often supplied by a government agency. What we know about the labor supply and the unemployment rate, for example, comes inevitably from the Bureau of Labor Statistics. What we know about the rates of death from various diseases comes from the Center for Disease Control. What we know about the dangerous capabilities or the aggressive intentions of a foreign nation comes from the Central Intelligence Agency or from a branch of the US military. Those agencies work for the president.

When members of Congress want facts, they read the newspaper. If they want to go beyond that, they subpoena officers from executive branch agencies to come and testify at congressional hearings, where those officers may refuse to talk depending on their loyalty to the president.

  

The Media and the Presidency

Every major newspaper, broadcast network and social media platform reports on the president every single day. Everything the president says in front of a camera gets reported widely. Even when the coverage is not flattering, it boosts the president’s eminence over Congress.

 

The Presidency in Popular Culture

When a crisis occurs in American affairs, the president’s popularity invariably leaps. There is no good reason why this should happen. People reasonably suppose that loyalty to the nation is needed during the crisis, but then they irrationally transfer their devotion from the nation to the person in the White House.

 

Military and Intelligence Capabilities

Above we already noted the president’s control of an immense national bureaucracy. But Marshall stresses again the special prerogatives of the military and clandestine intelligence agencies. The CIA under President Eisenhower orchestrated the murder of Congolese president Patrice Lumumba in 1961. Congress passed explicit laws in the early 1980s stopping the federal government from meddling in Central America, but agents for the Reagan White House secretly bought weapons and supplied them to Nicaraguan rebels. Incidents like these are common and have happened under the current administration. I choose to cite older cases rather than more recent ones because no one bothers to deny the old ones anymore. The president of the United States can arrange a murder if he wants to. The Constitution does say so, but he can anyway.

 

The Need for Government to Act Quickly

The founders gave the president power to act quickly should the nation be attacked by a foreign enemy. That is a good and wise provision. The founders didn’t intend for presidents to declare national emergencies over far less urgent matters. And they didn’t intend those emergencies to perpetuate for decades.

From the birth of the nation through 1917, America had its ups and down, but no events were designated as “national emergencies.” Woodrow Wilson announced the first one in 1917 over a worrying decline in America’s freight shipping capacity.

Franklin Roosevelt, who believed in an energetic hands-on government and held office 14 years through the Great Depression and World War II, declared three national emergencies. Ronald Reagan, who believed in limited government and held office only eight years, declared six of them. George H. W. Bush declared five national emergencies in less than two years. Bill Clinton declared 17.

George W. Bush declared several after 9/11, but none in response to Hurricane Katrina.  Trump declared one in March 2020 in response to the covid-19 pandemic. But those are exceptions. Most national emergencies are diplomatic sanctions.

National emergency declarations tend to go on forever. At the moment of this writing, there are 34 national emergencies happening at once. One of them has been in force since 1994. And I bet you don’t know what it is! Clearly, whatever happened in 1994 that required Bill Clinton to take sudden action could have been reviewed by Congress and authorized by a proper act of legislation. But it wasn’t. Congress is content to let presidents color outside the lines and has no intention of enforcing its duties to make laws and ratify treaties.

 

The Increasingly Polarized Two-Party System

In the highly partisan environment of Washington DC in the 21st Century, Congress doesn’t act as a foil or control on the president. Members of Congress from the president’s party try to expand his power – regardless of the issue – while members from the opposing party work to hinder his every success. The net effect of this is a Congress at war with itself, and a president left free to use the aforementioned 10 advantages to do as he pleases.

Professor Marshall’s law journal article gives us a powerful reminder that the Constitution is a weak constraint on presidential power. The Washington Post article looked no further than the language of the Constitution plus the Federalist Papers and a couple of court cases. That was sufficient for their purpose, which was to prove Trump wrong.

But the actual balance of power between presidents and Congress, and between presidents and the states, and between presidents and the civil rights of citizens, is very much a vexed question.