Presidential Power: An Analytical

Nothing is more basic to the operation of a constitutional government than the way it allocates power. By historical standards, even the Bush administration's critics subscribe to the idea of a pre-eminent president. Administrative agencies at the president's command are widely understood to be responsible for everything from disaster relief to drug approval to imposing clean-air standards; and the president can unleash shock and awe on his own initiative.

For better or worse, though, this is not the system envisioned by the framers of the Constitution. The framers meant for the legislative branch to be the most important actor in the federal government. Congress was to make the laws and the president was empowered only to execute them. The very essence of a republic was that it would be governed through a deliberative legislature, composed carefully to reflect both popular will and elite limits on that will. The framers would no sooner have been governed by a democratically elected president than by a king who got his job through royal succession.

The transformation of the United States from a traditional republic to a democratic nation run in large measure by a single executive took a couple of hundred years. Constitutional evolution, like its counterpart in the natural world, has occurred sometimes gradually and sometimes in catastrophic jolts, like those brought about by war or economic crisis. The process has not been entirely linear: presidential power grabs have often been followed by a Congressional backlash, as in the wake of Richard Nixon's presidency. But the overall winner has unquestionably been the president, who has reached heights of power that the framers would scarcely have imagined. The modern presidency, as expressed in the policies of the administration of George W. Bush, provides the strongest piece of evidence that we are governed by a fundamentally different Constitution from that of the framers. While any constitution must evolve over time to meet new circumstances and challenges, there is reason to think that, when it comes to presidential power over national security, the latest developments have gone too far.

The rise of the presidency began with the Louisiana Purchase, which in 1803 doubled the landmass of the United States. History taught the framers that, just as Rome changed from republic to empire with conquest of new lands, territorial acquisition would lead to the centralization of political power. Sure enough, Thomas Jefferson's decision to buy the territory without seeking a constitutional amendment or advance Congressional approval amounted to a huge expansion of presidential authority. Jefferson entered office as a skeptic of the national government's power and even privately suggested that the purchase was unconstitutional. In overcoming his own republican instincts and arranging the purchase secretly, he demonstrated how the office of the presidency would come to serve its own interests, swaying the men holding it to strengthen not simply their own authority but also that of the institution itself.

Thirty years later, Andrew Jackson's presidency marked another leap forward in presidential power. His contribution was his claim to represent the country, in its entirety, more directly and democratically than the congeries of local politicians who made up Congress. This rhetorical stance, coupled with the expansion of voting rights to white men without property, gave him the political muscle to veto the national bank and stand up to Congress in the name of the common men who had voted for him.

By the middle of the 19th century, with the admission to the Union of Florida, Texas and California, the United States became a continental empire. With the onset of the Civil War, the threat to the nascent empire led Abraham Lincoln to govern without Congress and to suspend access to the courts. When in 1898 William McKinley conquered the Philippines and chose to rule it, the imperial metaphor became still more fitting. The United States had become, for the first time, the proprietor of whole nations whose peoples would never vote in its elections and whose governors reported directly to the president.

In the 20th century, the Great Depression helped propel the presidency to its current level of dominance. The administrative agencies that were created during Franklin Delano Roosevelt's New Deal were a response to the tremendous complexity and growth of the national economy. An overwhelmingly Democratic Congress went along with the Roosevelt administration, giving the agencies broad discretion in regulating the economy and addressing workers' welfare. Over time, as the agencies expanded to administer health and safety regulations, Congress realized that it was more convenient to pass the buck to agencies than to deal with hard policy questions on its own. A congressman could