Executive power and the U.S. Constitution
Watch the UVA Democracy Biennial
The Biennial was originally broadcast September 24-25, 2021
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May 21, 2019
Jennifer Lawless, Barbara Perry, Saikrishna Prakash, Russell Riley, and Mike Nelson (moderator)
By Haley Nolde
At the Constitutional Convention, which began in Philadelphia 232 years ago, the office of the presidency was just one of many topics. But it was unlike any other, in that no precedent for it existed. “They were starting from scratch. There was no model of a successful executive, strong enough to lead but not so strong as to oppress,” said panelist and moderator Mike Nelson, a Miller Center nonresident fellow and professor at Rhodes College.
The framers of the Constitution considered a plural executive, but ultimately chose to create one strong executive, difficult to impeach, who would serve as both head of the government and the ceremonial head of state. The sharing of powers by separate institutions, however, “is an exceedingly important factor in the Constitution, and it’s one that’s playing out even today,” said Russell Riley, co-chair of the Miller Center’s Presidential Oral History Program. “Particularly as we look to the courts to make some decisions as to whether what’s going on in the White House and Capitol Hill passes constitutional muster.”
The Constitution clearly established some of the powers enjoyed today by the executive branch. After some deliberation, the framers imposed term limits, for example, fearing the evolution of a hereditary office. “Of our first six presidents—Washington, Adams, Jefferson, Madison, Monroe, and John Quincy Adams—the four Virginians, none of them had a son who lived into adulthood,” said Nelson, citing an insight by biographer Richard Brookhiser. “The one president who did have a son, he became president… We sort of have a kind of royalist strain in our culture.”
The Constitution also impacted the vice presidency. The 12thAmendment transformed the position by declaring them as running mates from the outset. Years later, the office changed again, but this time, said Barbara Perry, the Miller Center’s director of Presidential Studies, “it was not because of anything formal happening.
Like the Carter example, many changes to executive powers develop through practice or behavior. For example, no formal provisions for emergency powers exist in the Constitution, but emergencies have reliably generated new and lasting powers. Congress has the power to declare war, said Saikrishna Prakash, a Miller Center senior fellow and UVA law professor, “but today, presidents start wars all the time… That’s what the modern presidency is all about: If I do something repeatedly, it becomes legal… If it’s been done 20 times, who’s the yak who’s going to come in and say the 21st time is now illegal?”
Innovations in media, too, have transformed the powers of the presidency. From Woodrow Wilson’s Whistlestop tours and Franklin Roosevelt’s radio Fireside Chats came John Kennedy’s televised press conferences. “Now, with the Trump presidency,” said Perry, “I call it Presidency by Twitter, or a Tweetocracy. It would be as if FDR and John Kennedy had a hot mic in the oval office. And every time they had an idea they would just speak it in the microphone, and we would all hear what they were saying. But they knew to use it sparingly.”
This direct communication with voters yields presidents yet another new power. “Nixon’s ability to short-circuit the mainstream media was negligible,” said Nelson. “Now we have a president who has his own pipeline to his supporters... and essentially has inoculated them against any evidence that might persuade them otherwise.”
Riley posed a theory that such a president would not have surprised the framers of the Constitution. “They expected a highly ambitious and perhaps unscrupulous person could arrive to the presidency,” he said, “but, they would not have expected the kind of passive response that’s coming out of the Senate.”
So is the framers’ system of checks and balances threatened by new heights of partisanship?
“Both parties think that the other party is terrible,” said Prakash, “and theirs is virtuous.”
Key quotes from this session
"Lincoln did things in the spring of 1861 that by any standard understanding of the Constitution were plainly illegal, and he did it because he believed it was necessary to save the Union." —Russell Riley
"Constitutionally, there’s no formal provision for emergency powers in the document, but behaviorally, we have behaved in ways that look very familiar today, where vast emergency creates vast powers in the presidency.” —Russell Riley