Evolution of the Presidency

1. Evolution of the Presidency From Constitutionalism to the Administrative State

2. I. Interpreting the Constitution • Original Intent: What did the Framers intend the words to mean? • Method: Examine writings, speeches previous laws and precedents, context of adoption, etc. • Strengths • Constancy: Law retains same meaning over time • Legitimacy: The people’s representatives intended a particular reading

3. 3. Weaknesses • Disagreements: Framers may not have shared common preferences or interpretation • Historical Indeterminacy: New data is discovered about old beliefs • Invites Distortion: Pick and choose between Framers

4. B. Plain Meaning (Strict Constructionism) • Method: Examine text using “plain,” i.e. dictionary or legal definitions • Strengths • Consistency: Laws with similar phrases mean the same thing • Neutrality: In principle, plain meaning is not a value statement • Accountability: Public and Framers both know what has been adopted

5. 3. Weaknesses • Overbroad Terms: Words like “liberty” and “right” can mean almost anything • Meaning Shifts: Often forced to examine “original intent” or “living meaning” to define words (see: Misdemeanor) • Risk of Activism: A single phrase may interact with hundreds of actions, so one wrong decision can have far-reaching effects

6. C. Living Constitution • Method: Examine function that text currently serves in society • Strengths: • Response to Change: Constitution need not be rewritten every time society of technology advances, i.e. wiretaps • Preserves Core Values: Interprets words in a way that defends particular values, i.e. freedom, self-expression, etc.

7. 3. Weaknesses • Judicial Policy-Making: Given judicial review, judges become the arbiters of which policy best achieves a particular goal • Unpredictability: Values differ over time and between judges, i.e. “our Judeo-Christian heritage” vs. “separation of Church and State”

8. II. The Constitutional Presidency • Major provisions – Table 3-1 and discussion exercise • Inherent Power? 1st Sentence of Article II • Structural Power? Parallels to other branches • Notably Absent – • Executive Orders – Take care clause? • Executive Privilege – Opinion clause? • “National Security” – Only war/peace mentioned • “Separation of Powers” and “Checks and Balances” – The structure is there, but no such text

9. III. The Traditional Presidency • Precedents • Advise and Consent – becomes consent by precedent (p.52) • Veto power – Evolves from “unconstitutional” to “bad policy” to “pocket veto”

11. Expansion of the Veto Power

13. III. The Traditional Presidency • Precedents • Advise and Consent – becomes consent by precedent (p.52) • Veto power – Evolves from “unconstitutional” to “bad policy” to “pocket veto” • Appointment Power • Does dismissal require consent? • From spoils system to civil service

14. B. Key Pre-Modern Presidencies • Washington • Civilian control – Refusal to join coup attempt • Federal supremacy – Control over state militias • Limited power – Two terms • Jackson • Federal supremacy – Rejection of nullification • Spoils system – Open partisanship • Lincoln • Emergency powers – Suspension of habeas corpus • Federal supremacy – War to prevent secession

15. IV. The Modern Presidency • Justifications • Expanded power needed in modern world. • Modernization = administrative expansion.

21. IV. The Modern Presidency • Justifications • Expanded power needed in modern world. • Modernization = administrative expansion. • Increased global complexity = national security state

23. 2. Nationalization of State and Private Efforts • Social Welfare – New Deal rather than state/local charities • Permanent Mobilization – Decision to retain large armed forces after World War II

24. B. Elements of the Modern Presidency • Budget power: later in course • Bureaucracy and the EOP: later in course • Presidential program (legislative priorities): later in course • Media and Public Support: later in course

25. C. Effects of the Expansion of the Presidency • Persuasion Key – Institutional power insufficient to pass agenda ( rhetorical Presidency) • Information = Power – Incentive to manipulate flow of information to public and other branches • Focus on Foreign Policy – Presidential power is greater, allowing expectations to be met