Would the Founders Be Shocked by Today’s Presidential Power?

It’s been 250 years since the signing of the Declaration of Independence, but we often forget how much has changed since then in the way the United States of America is governed. 

Immediately after 1776, the U.S. existed under Articles of Confederation—not a constitution. “Power was extraordinarily decentralized, and it was Congress that was in charge,” says Meredith McLain, an assistant professor of political science. “And it wasn’t even the Congress that we know today, but a Congress that was more of a loose affiliation of states. We started like that because of fears about tyranny.”

How did the country go from a strong aversion to executive power—with a war fought to overthrow royal power—to the strongly presidential state that we have today? McLain studies presidential power, and reminds us that while there have been constants over the past two and a half centuries, change is a more common theme.

Why did we see a change in the U.S. after 1776 from decentralized power to a constitution and initiating presidential power?

The problem was that there was nobody in charge at first, and the nation was unable to levy taxes—every state had to agree to that, and they didn’t agree. At the same time, they had pretty extensive debts from loans taken out during the war and needed to pay them back, mostly to France.

That set the stage for the constitutional convention—fresh off a revolution and self-governance for a few years that was not working. They didn’t want a head of state that’s tyrannical like King George, but they recognized they need some head of state. So they created the role of the president, relatively as we know it today.

But Congress had the power of the purse—it controls the budget—and Congress was going to be the body actively declaring war. And then obviously the courts are on their own trajectory. I think the most important thing to note here is that the executive branch was not expansive at that point.

At the start, there were very few people in the executive branch—the cabinet had the departments of War, State, and Treasury. Now there are 16 departments, a slew of independent agencies, and partially government-owned corporations.

When did presidential power increase and Congressional power decline? 

It often happened in times of war. One of the earliest examples of an expansion of presidential power was with Abraham Lincoln. He expanded the presidency pretty drastically—it was a time of civil war and unrest, but war nonetheless. He suspended habeas corpus protections—judicial review of unlawful detention or imprisonment—and issued the Emancipation Proclamation, among many other actions, and established a precedent of increasing presidential power. 

I think the most widely thought of example of this is Franklin Roosevelt’s presidency. In terms of the executive branch we see today, that was established by FDR. He expanded the size of the executive branch—the number of both agencies and civil servants under his purview. He also expanded the role of the government. It was now involved in public works projects, in welfare, for example.

The New Deal program was then used by later presidents to continue to expand the scope of government services. Lyndon Johnson used this in his Great Society program. This was when we see Social Security and Medicare and Medicaid begin—they have these roots in the New Deal programs.

Are there times when Congress tried to take back power from the executive branch?

There was the War Powers Act in 1973, in which Congress tried to limit presidential power.  But it didn’t work. We have not declared war since World War II, and yet even post-Vietnam, we have engaged in wars in Kuwait, Iraq, and Afghanistan, and we’ve engaged in conflicts in Latin America. 

And with the War on Terror, there was another expansion of presidential power, sending troops abroad in response to the 9/11 attacks, and beginning to surveille U.S. citizens. These are all expansions of power that we may have not even meant to be longstanding, but they are still precedent setting.

Why does Congress not seem to want to protect its constitutional powers?

Congress should want to protect its institutional power. But again and again, we find that’s not the case, because the thing that’s stronger than institutional power is partisan power. If a president does things that infringe on Congressional power, and that fit the goals of those people in Congress from the same party—there’s no pushback.

I presume if you could have someone from 250 years ago see what the U.S. government looks like now, they would be very surprised by the expansion of presidential power. 

I think that they would be surprised that we still have this constitution, and they would be astonished at the amount of power that we’ve given to the president. They thought of constitutions as documents that each would change more often. I don’t think that they intended for this to be a document that was this long lasting. I think they would have thought that there would’ve been constant discussion of what the nation should be doing and that we should be changing and evolving constantly.

I also think it’s important to remember that they would be astonished at the amount of power that we’ve given to women. They’d be astonished to the amount of power that we’ve given to Black Americans. They’d be astonished that there are people in this country who are not white, but also not enslaved Black people.

Is it useful to consider what the founders intended, or is there a more useful way to look at them?

I think these discussions are hard when we talk about the founders and about what they expected. There is a kind of natural deification of them, that they were in some way beyond reproach, when they were individuals who enslaved humans and did not believe that the majority of people deserved to have a say in government.

I teach my students that this is a young nation; 250 years isn’t that long historically. This is a nation that has had a lot of problems, but it is also a nation that is, I’d argue, one of the few that talks a lot about their problems. 

We have these discussions. We talk about what it should mean to be a powerful president. We talk about what Congress should do. We think a lot about how our government is structured, but not only that, we talk about where we’ve gone wrong. We talk about these things, and we have so many more protections than I think a lot of people realize.