Presidential Power : Throughline What can and can't the president do, and how do we know? When the framers of the U.S. constitution left vague the powers of the executive branch they opened the door to every president to decide how much power they could claim. This week, how the office of the presidency became more powerful than anything the Founding Fathers imagined possible.
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Presidential Power

Presidential Power

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(SOUNDBITE OF BELL RINGING)

RUND ABDELFATAH, HOST:

On Friday, June 1, 1787, the Constitutional Convention convened in Philadelphia. And on the agenda that day was a single question. How much power should the executive branch have?

RAMTIN ARABLOUEI, HOST:

At this point, there was no executive branch yet, no president. There was only Congress.

ANDY RUDALEVIGE: What began to frighten the people who eventually would write the Constitution was that the government seemed very ineffective. It was bad at running the war. It was broke. It found it very hard to implement the law. And, of course, by the time you get into the mid-1780s, you know, people are worried.

ARABLOUEI: The Revolutionary War was a fresh memory. All of the social and political workings of this new nation essentially amounted to a big experiment.

RUDALEVIGE: There's domestic disputes at home. Up in Massachusetts, a bunch of former soldiers are taking over state armories and trying to get the legislature to forgive all their debts. You've got British troops still stationed on American soil, other European powers kind of circling. They're very nervous about the ability of the government to deal with it.

ABDELFATAH: So this was a really chaotic time, and the framers of the Constitution began to think the only way to make order out of chaos was to create an executive branch that would carry out and execute the nation's laws.

ARABLOUEI: But what should an executive branch actually look like? Well, none of the framers had a clear idea, including the person who's often called the father of the Constitution, James Madison.

UNIDENTIFIED ACTOR #1: (As James Madison) I've scarcely ventured as yet to form my opinion either of the manner in which it ought to be constituted or of the authorities with which it ought to be clothed.

ARABLOUEI: The one thing they definitely knew they didn't want was a monarchy with a single person in charge holding all the power.

RUDALEVIGE: And that was in part, you know, a reaction to the existence of King George III. You know, the idea of executive tyranny is very high on people's minds at that point.

ABDELFATAH: By the way, this is Andy Rudalevige. He's a professor at Bowdoin College.

RUDALEVIGE: And I've been researching and teaching about the executive branch for about 20 years now.

ABDELFATAH: So the framers needed to figure out how to create an executive branch that had enough power to be effective but not so much that it became tyrannical.

RUDALEVIGE: So you have this weird dynamic where, you know, half the time, they're worried about making this office too strong; the other half, they're worried about making it too weak. It's kind of like Goldilocks, right? They want to make it just right.

ABDELFATAH: But on that day in June at the convention, one representative from Pennsylvania had a bold idea and brought it to the floor.

UNIDENTIFIED ACTOR #1: (As James Madison) Mr. Wilson moved that the executive consist of a single person.

RUDALEVIGE: And there's dead silence.

ABDELFATAH: Every man in the room, from George Washington to James Madison to Alexander Hamilton, just sat there quietly. Remember; monarchy was never far from their minds.

ARABLOUEI: And then...

RUDALEVIGE: Ben Franklin actually - he said (laughter) - he actually says, you know, we ought to at least talk about it (laughter). And so that kind of breaks the ice.

ARABLOUEI: For four months, they debated whether or not there should be a president and what the terms and limits of executive powers should be. And by mid-September 1787, they had made their minds up. The result was Article II of the U.S. Constitution.

ABDELFATAH: Can you actually - if you have it in front of you - read to us what they landed on, what Article II says and what it means?

RUDALEVIGE: Sure, yeah. Well, I have it on my desk as always - copy in my suit pocket and a copy on my desk and a copy on my phone.

ABDELFATAH: Naturally. Don't we all?

RUDALEVIGE: You never know when you're going to need a copy of the Constitution. Well, it starts out - the first line of it is maybe the most important in some ways. It says simply that the executive power shall be vested in a president of the United States of America.

ARABLOUEI: It was settled. The United States would have a president, a big deal to some of the framers who'd been really wary of putting power in one person's hands.

(SOUNDBITE OF MUSIC)

RUDALEVIGE: Then it turns to a couple of other sections where it talks about powers and, importantly, duties of the office.

UNIDENTIFIED ACTOR #2: The president shall be commander in chief of the Army and Navy of the United States.

RUDALEVIGE: He's allowed to pardon people. He's allowed, of course, to appoint people to office.

UNIDENTIFIED ACTOR #2: By and with the advice and consent of the Senate.

RUDALEVIGE: He's allowed to make treaties.

UNIDENTIFIED ACTOR #2: By and with the advice and consent of the Senate.

RUDALEVIGE: But all of these pretty much, except for the pardon power, have this big asterisk - right? - because they require that Congress act.

UNIDENTIFIED ACTOR #2: He shall from time to time give to the Congress information of the State of the Union.

RUDALEVIGE: It's pretty vague. It does lay out that sort of broad notion of the executive power, but it doesn't define the executive power.

ABDELFATAH: Basically, Article II had left a lot of room for interpretation, whether intentionally or not, because all the president really needed in order to expand that vaguely defined power was buy-in from Congress.

ARABLOUEI: So even though the framers created the executive branch, legislative branch and judicial branch as equal partners with each theoretically providing checks and balances for the others, the executive branch had maybe the most room to grow.

ABDELFATAH: And some people worried that might inevitably lead to too much presidential power and spell disaster for American democracy.

RUDALEVIGE: Edmund Randolph, who was the governor of Virginia - you know, he said this is the fetus of monarchy. It's going to grow up to be a dictator.

(SOUNDBITE OF MONTAGE)

FRANKLIN ROOSEVELT: I, Franklin Delano Roosevelt, do solemnly swear...

HARRY TRUMAN: I, Harry S. Truman, do solemnly swear...

JOHN F KENNEDY: I, John Fitzgerald Kennedy, do solemnly swear...

ROOSEVELT: ...That I will faithfully execute the office of president of the United States...

RICHARD NIXON: I, Richard Milhous Nixon...

JIMMY CARTER: I, Jimmy Carter...

RONALD REAGAN: I, Ronald Reagan, do solemnly swear...

BILL CLINTON: I William Jefferson Clinton...

ROOSEVELT: ...And will, for the best of my ability...

GEORGE W BUSH: I, George Walker Bush, do solemnly swear...

BARACK OBAMA: I, Barack Hussein Obama...

PRESIDENT DONALD TRUMP: I, Donald John Trump...

OBAMA: ...Do solemnly swear...

ROOSEVELT: ...Preserve, protect and defend the Constitution of the United States.

UNIDENTIFIED PRESIDENTS: So help me God.

ARABLOUEI: Hey. I'm Ramtin Arablouei.

ABDELFATAH: I'm Rund Abdelfatah.

ARABLOUEI: And on this episode of THROUGHLINE from NPR, the evolution of presidential power.

ABDELFATAH: The past few weeks have been tough. As protests continue across the country and the world calling for change, some government officials have responded with strong assertions of power - above all, the president.

(SOUNDBITE OF ARCHIVED RECORDING)

MICHAEL HOLMES: He tweeted just a short time ago, and I want to read the whole thing. He says, I can't stand back and watch this happen to a great American city, Minneapolis - a total lack of leadership. And then he makes it political. Either the very weak radical left Mayor Jacob Frey gets together and brings the city under control or I will send in the National Guard and get the job done right. As we've already said...

ABDELFATAH: And, of course, he also delivered these comments in the Rose Garden while protesters were tear gassed to make room for a photo op at St. John's Episcopal Church.

(SOUNDBITE OF ARCHIVED RECORDING)

TRUMP: Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled. If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.

ARABLOUEI: This type of speech from the president of the United States is alarming and often has us asking, can he actually do that? Because while his words are not law and many of the things he says he can do he can't actually do, it's really hard figuring out where that line is.

ABDELFATAH: So all this got us thinking, what exactly are the limits of the president's power?

ARABLOUEI: Can he postpone elections in extreme circumstances?

ABDELFATAH: Can he adjourn Congress?

ARABLOUEI: Can he declare war?

ABDELFATAH: Ever since that moment in 1787 when the framers drafted Article II of the Constitution, questions over the limits of presidential power have surfaced over and over again.

ARABLOUEI: Which maybe isn't all that surprising considering just how confused the framers were as they were drafting it about what to include, how to phrase it, whether to even have a president.

ABDELFATAH: And because Article II is pretty vague, nearly every president in our country's history, regardless of party, has been able to push the limits of his authority, leading to a slow and steady expansion of executive power.

ARABLOUEI: In this episode, we're going to focus on three presidents who dramatically expanded the power of the presidency. They all held office during times of intense crisis, times when the world felt chaotic, times when presidents can often push ahead without much pushback from Congress.

ABDELFATAH: And along the way, we'll trace how the office of the presidency became more powerful than anything the Founding Fathers imagined possible and what that might mean for us today.

(SOUNDBITE OF MUSIC)

CAMARI: Hi. This is Camari (ph) from Chicago, and you're listening to THROUGHLINE from NPR. I just wanted to let you guys know I really love the work you do. You're telling stories that nobody else tells in a way that nobody else tells. And the music from Drop Electric - (imitating kiss). It's just pure genius - sounds so good in my headphones. So again, thanks, guys. You're doing great work.

UNIDENTIFIED PERSON #1: Part 1 - the modern presidency.

ABDELFATAH: As we all know, George Washington was the first president of the United States. But in a way, he's not all that important to this story because during Washington's time, the presidency looked a lot different than it does today. Washington frequently ran things by the Senate, whether he was making appointments to an office or signing treaties with other nations. And if the Senate didn't consent to something, he seldom fought back. So the center of power didn't really rest with the president.

ARABLOUEI: To get to what we think of as the modern presidency, in which the president is much closer to being the center of power, we have to fast-forward through about 150 years.

RUDALEVIGE: You've got people like Andrew Jackson - right? - famously King Andrew, who sees himself as the tribune of the people, right? He's the only person who's elected by the whole country, and therefore, he has some kind of authority in that public mandate that Congress doesn't have. You've got Abraham Lincoln - right? The Civil War is conducted, you know, especially in the first year of it sort of unilaterally by the president responding to the secession. And there's a whole lot of debate over Lincoln as a tyrant, right? Is he wielding powers that really should be in Congress? Teddy Roosevelt, as we get into the beginning of the 20th century - again, somebody who really sees his connection to the people and his ability as an executive to fight against big business but also the interest groups that dominate Congress.

(SOUNDBITE OF MUSIC)

RUDALEVIGE: But really, all of those things - all those of strands kind of come together with Franklin Roosevelt.

(SOUNDBITE OF ARCHIVED RECORDING)

ROOSEVELT: My friends, this is a day of national consecration.

RUDALEVIGE: We really see, as he takes office in 1933, the sort of shaping of the presidential office into something that we would recognize today.

(SOUNDBITE OF ARCHIVED RECORDING)

ROOSEVELT: ...The presidency, I will address them with a candor and a decision which the present situation of our people impels.

ABDELFATAH: So what's going on in the country at the time FDR takes office?

RUDALEVIGE: We're in the midst of the Great Depression. And the governmental policy has effectively failed to deal with the economic crisis, the sort of dystopia that's descended upon the U.S. but also globally. So Roosevelt has this mandate - right? - to come in and offer, of course, what he famously calls a New Deal to the American people.

(SOUNDBITE OF ARCHIVED RECORDING)

ROOSEVELT: In the working out of a great national program which seeks the primary good of the greater number, it is true that the toes of some people are being stepped on and are going to be stepped on.

ARABLOUEI: So what kind of things did FDR do to really, like, push the boundaries of the presidency?

RUDALEVIGE: Really, I think four things come together in terms of, you know, what the presidency looks like. One is this notion of unilateral authority - the ability to act using the administrative side, the executive side of government. He's the first president to have a legislative program in a comprehensive way to propose things to Congress that he thinks they should adopt, you know, not just in an individual area, but across the entire government. He's the first person to have a White House staff in the way that we would recognize it today. And then he's also the first president to really have the kind of visibility, the personification of the office.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #2: Ladies and gentlemen, the president of the United States.

RUDALEVIGE: Remember the fireside chats, the famous conversations that Roosevelt has. He's literally in your house talking to you...

(SOUNDBITE OF ARCHIVED RECORDING)

ROOSEVELT: My friends, I want to talk for a few minutes with the people of the United States about banking.

RUDALEVIGE: ...In a way that previous presidents just couldn't do.

(SOUNDBITE OF ARCHIVED RECORDING)

ROOSEVELT: I want to tell you what has been done in the last few days and why it was done and what the next steps are going to be.

RUDALEVIGE: And so that does give him, you know, sort of this soft power, you know, that's nowhere in the Constitution but which really does give him leverage to work on Congress, to be able to pass legislation that builds up the executive branch. And then once the executive branch is bigger, then he has more power to act through executive orders or other regulations that enables him to do more without going back to Congress.

Nothing happens, you know, like, in this big flash, right? It's not like there was no presidency and now suddenly, there is a big presidency. But it's kind of like a shift change - right? - where it's, like, moving from - I don't know - ice to water or water to ice, right? The elements were there before, but it's definitely different and more powerful.

ARABLOUEI: Was anyone, like, worried about the things that Roosevelt was doing? I guess at the time, people would be like, this is a lot coming from the president.

RUDALEVIGE: Oh, yeah. You know, Roosevelt early on - right? - starts talking about, well, I need Congress to give me, you know, emergency powers to fight this Depression. And by the way, he said at one point, if you don't give them to me, I'm going to use them anyway. And so that certainly got people to sit up. Now, Congress, in fact, did give him the powers he was asking for in that case. But, you know, there was a lot of nervousness when he ran for an unprecedented third term in 1940.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #3: We will stand and put forward and confirm again that God-sent guardian of our liberties, the kind of man that mankind needs, our beloved president, Franklin D. Roosevelt.

RUDALEVIGE: You know, there's a lot of people - you know, who does he think he is? He is a king. He is trying to reshape our government in an non-representative way.

ABDELFATAH: I mean, the country was in pretty dire straits at that time, right? And all of a sudden it's on the brink of a massive world war. So do you think that's partly what allowed FDR to move so swiftly in terms of expanding the president's authority, you know, at that moment?

RUDALEVIGE: Oh, absolutely, yeah. I mean, conditions and context are hugely important here. Congress is being pretty deferential. There really isn't any pushback. For Roosevelt, that involved drafting a lot of legislation, and some of it was passed by Congress before it was read. You know, they were moving very fast to give him the power he said he needed in order to make this crisis better.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER #1: The army that Germany has built up in four years swings in past Hungary’s strongman Adm. Horthy, the young men of the new German Reich welded into a mighty war machine.

RUDALEVIGE: He's also very active even before the United States is officially in World War II. He is very active in trying to shape public opinion about the war and even to get involved in some ways - right? - to support Britain and the Soviet Union, who are fighting Hitler alone at that point.

(SOUNDBITE OF ARCHIVED RECORDING)

ROOSEVELT: I've asked this Congress for authority and for funds.

RUDALEVIGE: He actually begins to send armed U.S. escorts, along with convoys that are going from Canada to Europe, for example, to bring food to Great Britain. There's a lot of sort of unilateral wrangling behind the scenes to sort of begin to shape the way that he thinks the United States has to react.

(SOUNDBITE OF ARCHIVED RECORDING)

ROOSEVELT: Our most useful and immediate role is to act as an arsenal for them as well as for ourselves.

RUDALEVIGE: At a time when people are pretty isolationist and Congress certainly does not want to get involved.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER #2: They blasted the quiet of a Sunday morning into the Holocaust of war.

RUDALEVIGE: You know, here's the thing. Roosevelt turned out to be right about the threat of the Axis powers.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #4: Sneak sky and sea raid on Pearl Harbor, America’s mid-Pacific naval bastion.

RUDALEVIGE: And so Congress has a little bit of buyer's remorse, you know? We were wrong. President was right. And we should be deferential.

(SOUNDBITE OF MUSIC)

RUDALEVIGE: Suddenly, again, you have a lot of authority delegated to the president not only to run the war but to effectively run the national economy. People forget how much was nationalized during World War II. There's rationing. There's rent control. There's wage and price controls. There's controls over what can be manufactured, where, how. And, of course, the huge growth in the government bureaucracy needed to run all these programs. That's even before we get to the people in uniform.

So the crisis really does precipitate changes in, you know, the way the U.S. government is perceived by the public, what's expected of it. And Roosevelt is ready to jump into that. He becomes, again, sort of the prototype of what people will expect the president to be from then on.

(SOUNDBITE OF ARCHIVED RECORDING)

MILTON EISENHOWER: When the Japanese attacked Pearl Harbor, our West Coast became a potential combat zone. Living in that zone were more than 100,000 persons of Japanese ancestry - two-thirds of them American citizens, one-third aliens.

ARABLOUEI: So there's one moment in World War II that sticks out for me and, I think, probably for a lot of people in terms of how unprecedented it was for a president to do it, and that's the Japanese internment camps. President Roosevelt was able to put a lot of Japanese American citizens into these camps with an executive order. What was the reaction to that? Because it seems to be a major move by one branch of government.

RUDALEVIGE: Yeah, that's an interesting question. I think even at the time, there were many people who thought it was - if we're talking about tyranny - you know, ripping people from their homes and putting them in camps? Well, that's tyrannical. It came out of a military recommendation to Roosevelt. He accepted it. He issued, you know, Executive Order 9066, which put it in place. And later, of course, in the famous or infamous Korematsu case, the Supreme Court upheld it as, you know, basically, again, a military necessity and something that they as members of a court did not have the competence to judge. They were going to defer to the president and to the military in this case.

There's a famous dissent to that case, though, which gets to the broader point of presidential emergency powers. And Justice Jackson says at that time that, you know, these emergency powers are like a loaded weapon. It kind of lies around, waiting for somebody to pick it up and use it for something else. And that, I think, is something we have seen over time - that presidents will act in one way and then future presidents will look back and say, well, he did it. And I should be able to do it. I can use that precedent to bolster my own case for enhanced power.

(SOUNDBITE OF MUSIC)

ARABLOUEI: When we come back, a president pushes the limits of his powers so far, it gets pushed over the edge into criminal territory.

(SOUNDBITE OF MUSIC)

MICHAEL THORNTON: Hi. This is Michael Thornton (ph) from Little Rock, Ark., and you are listening to THROUGHLINE on NPR.

UNIDENTIFIED PERSON #1: Part 2 - the imperial presidency.

(SOUNDBITE OF ARCHIVED RECORDING)

TRUMAN: Korea is a small country thousands of miles away, but what is happening there is important to every American.

ARABLOUEI: By 1950, the U.S. was steeped in the Cold War, which brought on a whole new landscape for a president to justify bold decisions in the name of national security. So when President Harry Truman sent troops into Korea, he did it without congressional approval.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER #3: As reinforcements leave, President Truman promises victory however long the job may take.

ABDELFATAH: Sending soldiers overseas without congressional authority was a move even FDR probably couldn't have imagined. By the time the U.S. entered Vietnam, it had been firmly established that a crisis - particularly when it came to war and peace - was the president's responsibility and one that the public had come to expect of the office.

(APPLAUSE)

ARABLOUEI: Enter Richard Nixon.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #5: Mr. Nixon is appearing in the doorway now, preceded by members of his staff and members of the Secret Service.

RUDALEVIGE: So when Nixon comes in, he has a plan to end the war in Vietnam.

(SOUNDBITE OF ARCHIVED RECORDING)

NIXON: I pledge to you we shall have an honorable end to the war in Vietnam.

RUDALEVIGE: But he expands it.

(SOUNDBITE OF ARCHIVED RECORDING)

JULIAN BARBER: This is Julian Barber from Washington, D.C., reporting...

RUDALEVIGE: He invades Cambodia without congressional authority.

(SOUNDBITE OF ARCHIVED RECORDING)

BARBER: ...Has been a subject of controversy in this country and abroad.

RUDALEVIGE: At the same time, he's using domestic surveillance authority to try to undermine the anti-war movement. He's beginning to use unilateral authority in other ways to try to undermine some of the programs that had been put into place during the Great Society. And remember; government itself has grown dramatically in this time. So you have just a much wider set of things that the government's doing - consumer safety and environmental protection. You know, these things that we demanded in 1960s and '70s - the power to do those things wind up in the presidency, and Nixon uses that power aggressively.

(SOUNDBITE OF ARCHIVED RECORDING)

ARTHUR SCHLESINGER: The imperial presidency is what happens when the balance between power and accountability is disturbed and power increases and accountability shrinks.

ARABLOUEI: What sticks out for me here is the famous historian Arthur Schlesinger's term, the imperial presidency.

(SOUNDBITE OF ARCHIVED RECORDING)

SCHLESINGER: And, of course, it came out particularly under the shadow of Richard Nixon.

ARABLOUEI: What did Nixon do to earn that term?

RUDALEVIGE: Yeah, so Schlesinger writes "The Imperial Presidency" in 1973. He uses that term, I think, for two reasons - one, if you think of sort of imperial as just meaning powerful, but also if you think of an empire, right? It stretches across boundaries. It takes over places that it doesn't really have claim to. And I think he sees the presidency in that light as well, sort of stretching across the boundaries between the branches and doing stuff that really is not its business.

(SOUNDBITE OF ARCHIVED RECORDING)

NIXON: This investigation began as an effort to discover the facts about the break-in and bugging of the Democratic National Headquarters and other campaign abuses.

RUDALEVIGE: In the end, one of the things that brings him down is his desperate desire for secrecy but also, you know, using federal agencies to undermine the rule of law, for example, in, you know, trying to get the CIA to intervene in an FBI investigation into the burglary that his own campaign had put in place during the 1972 campaign.

(SOUNDBITE OF ARCHIVED RECORDING)

NIXON: It has become clear that both the hearings themselves and some of the commentaries on them have become increasingly absorbed in an effort to implicate the president personally in the illegal activities that took place.

RUDALEVIGE: This streak of literally criminal behavior - obstruction of justice, trying to bribe people not to testify, trying to use government agencies to intervene, to stop a law enforcement investigation - so all of that, you know, is ultimately what brings Nixon down, right? Remember the famous line, is the president a crook?

(SOUNDBITE OF ARCHIVED RECORDING)

NIXON: Well, I'm not a crook.

RUDALEVIGE: Well, I'm not a crook.

(SOUNDBITE OF ARCHIVED RECORDING)

NIXON: I've earned everything I've got.

RUDALEVIGE: Well, turned out he was a crook. But...

ABDELFATAH: That was a good impression.

RUDALEVIGE: Oh, why thank you (laughter). Anyway, it's really a sort of aggressive use of unilateralism, plus the distaste and just dismay at the expansion the Vietnam War, that winds up causing a huge backlash to Nixon and to the imperial presidency.

ABDELFATAH: So what did that backlash look like?

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED GROUP #1: Richard Nixon has to go.

RUDALEVIGE: Well, some of it, of course, is public. You know, you can think of the anti-war demonstrations and so forth. But the most important part is congressional. Unlike in the 1940s, where you have a Democratic Congress and a Democratic president, Nixon never had a Republican Congress. He's always in divided government. And by the time we get into the early 1970s, you're beginning to see members of Congress - and actually on a bipartisan basis - beginning to get upset about the fact that they're not being included in important decisions about the direction of national policy. Vietnam, of course, is a big part of that.

And so you have the War Powers Resolution passed in 1973, which is designed to deal Congress in to the decision-making process about whether we go to war or not. You have the Intelligence Oversight Act. You have the Congressional Budget Act, which is designed to stop the president from trying to stop congressional initiatives that had been appropriated for. So you've got this wide range of congressional resurgence. They want to be involved in these decisions, and they've been shut out by the president. This is really a landmark moment - the resurgence of Congress in the 1970s as it looks at what it thinks the overreach of the presidency has been and, again, pushes back against that.

ARABLOUEI: It's interesting. I feel like the Nixon presidency is, in a way, like, a flashpoint in the bipartisan nature of the way the president is viewed because, like, FDR had a lot of support - not that there weren't people also pointing out the things that he was doing that were maybe, like, going over the line. But it seems like depending on what side of the political spectrum you land on, you're going to view the actions of the president in terms of whether they're expanding the powers of the presidency too much differently.

RUDALEVIGE: Yeah, he made that defense even at the time. He said, look; Roosevelt did this stuff. Truman did this stuff. Certainly, John Kennedy did this stuff. Nobody ever blamed John Kennedy for anything. You know, that was a line of defense. And if you look at the Watergate hearings themselves, you begin to see with his impeachment the kind of hardened partisan lines that we're now very familiar with. It seems almost treacherous to think that a president of your party could do something bad, and that makes it very hard for Congress to do its job as an institution if that's the case.

(SOUNDBITE OF MUSIC)

ABDELFATAH: When we come back, a new millennium launches a new set of standards for what presidents can not only do but ultimately get away with.

(SOUNDBITE OF MUSIC)

KELLY SIMMONS: Hi. This is Kelly Simmons (ph) from St. Augustine, Fla., and you are listening to THROUGHLINE from NPR.

UNIDENTIFIED PERSON #1: Part 3 - the unilateral presidency.

(SOUNDBITE OF ARCHIVED RECORDING)

BRYANT GUMBEL: It's 8:52 here in New York. I'm Bryant Gumbel. We understand that there has been a plane crash on the southern tip of Manhattan. You're looking at the World Trade Center. We understand that a plane has crashed into the World Trade Center. We don't know anything more than that. We don't know if it was a commercial aircraft.

ARABLOUEI: September 11th, 2001, is what many people in the U.S. view as a life-altering, no-turning-back kind of moment when nothing would ever be the same.

ABDELFATAH: And in the days and weeks and months afterwards, we saw the president of the United States on TV almost every night, telling us that the world had forever changed.

(SOUNDBITE OF ARCHIVED RECORDING)

BUSH: I truly believe this is a defining moment in history. And this country must lead. We must seize the moment. We must make our country and other countries that embrace freedom as a place where children can grow up in peace and be able to realize their dreams. And therefore, we must find terror where it exists and pull it out by the roots and bring it to justice.

ARABLOUEI: It was the beginning of the war on terror, the beginning of what would become a constant rotation of yellow, orange and red levels of threat.

(SOUNDBITE OF ARCHIVED RECORDING)

BUSH: Terror is evil. And wherever evil exists, the free nations of the world must come together in a massive coalition that says terror will not stand. And the United States is ready to lead that coalition not only in Afghanistan but wherever we find terror.

ARABLOUEI: This renewed need to protect against the risk of further attacks dropped boundless power into the hands of President George W. Bush.

RUDALEVIGE: George W. Bush comes in partly because of his partnership with Dick Cheney, his vice president, who had served in the Nixon administration. He comes in with a theory of presidential power that is much more expansive than some of his predecessors, and we hear it bandied about these days as the unitary executive theory. The idea is that the president has a certain zone of autonomy, that they can act without any kind of pushback from Congress and that in some cases, that's actually even going to override statute. But it's really activated by 9/11. The passage of the Authorization of the Use of Military Force Bill (ph) that's passed three days after the 9/11 attacks and effectively delegates authority to the president to attack and respond to the 9/11 perpetrators, you know? And that law still exists.

ABDELFATAH: You mentioned that, like previous crises, there was sort of a heightened ability - right? - to pass some of these things given the sort of trauma - the collective trauma that the country was going through together. But did he face a pushback from Congress or from the public?

RUDALEVIGE: Well, I mean, not immediately. Congress on the whole was, again, pretty deferential to the president's claims that, you know, we are at war. It's a new kind of war. I need new and broad powers in order to keep the country safe. And, you know, I was a younger assistant professor at the time. And my colleagues and I expected there would be more attacks, that this was the beginning of a long salvo of warfare even on the American homeland.

And so Congress, concerned about just that, you know, is not really willing to step into the void and say, no; you should be doing Y instead of X, because the response of the president was always, well, we know a lot more of what's going on. You know, we have better information. And by the way, members of Congress can't keep secrets, so we need to act confidentially. And you just need to trust us effectively. Let us act in your best interests.

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BUSH: My fellow citizens, at this hour, American and coalition forces are in the early stages of military operations to disarm Iraq, to free its people and to defend the world from grave danger. On my orders...

UNIDENTIFIED GROUP #2: Bush must go. Drive out the Bush regime. Step down. Step down. Bush must go.

RUDALEVIGE: The Iraq War, as that develops, begins to change perceptions because that's not seen as directly stemming from the 9/11 attacks even though that's how it was framed at the time and thereafter. So there are areas, especially in wartime, when the president can act and Congress literally cannot bind the president. And we're going to see this over the course of the Bush administration in areas like Guantanamo Bay and the detention of so-called enemy combatants.

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BUSH: When we find somebody who may have information regarding a potential attack on America, you bet we're going to detain them, and you bet we're going to question them.

RUDALEVIGE: We'll see it in surveillance - right? - and the huge expansion of the data gathering that's done without warrant by the National Security Agency and others.

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JAKE TAPPER: The question of overreach, whether it's massive data mining, surveillance of allies or, in your cases, black sites...

RUDALEVIGE: You know, you might remember that in late 2005, there's pushback by Congress against the so-called enhanced interrogation...

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TAPPER: ...Techniques, what others believe to be torture...

RUDALEVIGE: ...That was going on with regard to the detainees that had been captured in Afghanistan and elsewhere.

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DICK CHENEY: Oh, so when people say torture, that may be their opinion. But with respect to the attorneys and the lawyers that are charged with reviewing what we do, I don't believe it was torture.

UNIDENTIFIED PERSON #6: It's torture.

RUDALEVIGE: John McCain - then a very prominent senator and, of course, someone who had been tortured during his time in captivity in Vietnam - had a lot of moral standing as a result to sort of push back against this notion that the Bush administration could do what it wanted when it came to treating detainees.

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JOHN MCCAIN: We could gain better information through using different techniques which are not in violation of any of the treaties or obligations, not to mention our image as a nation.

RUDALEVIGE: But the Bush administration at that time effectively said they weren't going to listen to any new laws that dealt with limits on executive behavior. That, they argued, was something Congress did not have the right to do.

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UNIDENTIFIED PERSON #7: This administration is making claims that no administration has made before about the president's authority to ignore statutes passed by Congress, to ignore court decisions that are made, to ignore international treaties.

RUDALEVIGE: So around this time is when you begin to have sort of the renewed debate over, you know, is there a new imperial presidency?

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BUSH: If this were a dictatorship, it'd be a heck of a lot easier (laughter), just so long as I'm the dictator.

RUDALEVIGE: Again, the debates that the framers had about the need for a presidency - those arguments haven't gone away. They're not any less persuasive. We still need a central focal point for national policy. The question is whether there are mechanisms for reining in that authority when the sort of collective representatives of the people think that that has gone too far.

ARABLOUEI: So Bush comes along and expands these powers to fight the war on terror. And there's a lot of people on the left calling out how far it's all going, criticizing the fact that Guantanamo existed and, like, how long it was open.

RUDALEVIGE: Yeah.

ARABLOUEI: But after Bush leaves office, a Democrat progressive comes in, Barack Obama. What shifts at that point? Like, what happens?

RUDALEVIGE: When Barack Obama comes into office, he actually has a different theory of the presidency. But he has many of the same powers now written into law that Bush had or that Bush had sort of seized. Obama was able to just say, hey; look. The law says I can do this. I can give you a good Obama example.

ARABLOUEI: Yeah, yeah. Please.

RUDALEVIGE: The NATO operation in Libya in 2011.

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UNIDENTIFIED PERSON #8: It has been 10 days since Mr. Obama ordered U.S. forces into combat in Libya. Nearly 200 tomahawk cruise missiles launched, more than 1,600 airstrikes...

RUDALEVIGE: This was during the Arab Spring. Muammar Qaddafi had been the dictator of Libya forever. He had been battling against the U.S. since the 1980s, and we're going to get rid of him.

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MUAMMAR QADDAFI: (Speaking Arabic).

UNIDENTIFIED PERSON #8: It was Muammar Qaddafi, Obama said, who was the main reason for war. He was about to launch a massacre of his own people.

OBAMA: It was not in our national interest to let that happen. I refused to let that happen.

RUDALEVIGE: So this NATO operation moves forward. The U.S. is part of that. But the War Powers Resolution - which, again, was passed in 1973 - says that through introducing troops into hostilities, then you have to get congressional approval. Obama said, well, this operation really has no hostilities involved. They wrote that to apply to something like the Vietnam War. Over in Libya - you know, we are, in fact, bombing the hell out of Libya, but nobody's firing back. Our troops are not in danger. There's no hostilities.

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OBAMA: Let me be clear. These terms are not negotiable. If Qaddafi does not comply with the resolution, the international community will impose consequences, and the resolution will be enforced through military action.

RUDALEVIGE: Obama sort of rewrites the War Powers Resolution, continues the Libya operation and has provided a precedent then for the idea that the War Powers Resolution only kicks in at a certain level of war, which is something that the Trump administration has used as well when we have had airstrikes on Syria.

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UNIDENTIFIED REPORTER #4: The U.S. strikes on Syria were a surprise to most members of Congress. Still, there is support for what many are calling the president's decisive action.

MITCH MCCONNELL: The president had the authority to do what he did, and I'm glad he did it.

RUDALEVIGE: They've sort of turned to that same threshold definition. There's no war here. Therefore, Congress doesn't have a say.

ABDELFATAH: Putting partisanship aside, you know, just looking at the basic human instinct - right? - like, if you're coming in, you're given more power because of actions in the past that have helped to, you know, build up that power of the presidency. And I just think it would be very against our human instinct to be like, you know what? I know that I have this power at my disposal, but I'm just going to choose not to use it - right? - because, you know, I assume that everyone is trying to further an agenda when they come into office.

RUDALEVIGE: Yeah, absolutely. So I don't think this is a matter of personality exactly. It's not like Bush and Obama and Trump or, you know, FDR had different personalities. They did, of course, but that's not what drives them forward in office necessarily. You know, there really is the sense that I am in this position. I need to achieve what I promised I would do when I ran for office in the first place, and here's what my tools are.

There's a famous line of James Madison's back in the Federalist Papers about ambition counteracting ambition. And that was sort of at the heart of the notion of checks and balances that we started with - the idea that every branch of government would be pushing against every other branch, and that in the end, that would lead to, effectively, a consensus about the path forward. Presidents have certainly had that ambition. Consistently, they've pushed forward. And sometimes in American history, Congress has pushed back. But very frequently, especially in recent years, it has not.

ARABLOUEI: Do you think that the political divisions in our society cripple Congress' ability to hold the president in check?

RUDALEVIGE: Yeah, absolutely. Polarization puts that on steroids. You know, if you're a Republican in Congress right now and you say to President Trump, no, I think you're wrong; you don't have absolute authority; Article II doesn't let you do whatever you want to do; we can rein you in, they're treated not only as policy apostates but also as evil people, right? And Democrats do the same thing to anyone who might suggest accommodation with the other side. A unified Congress that is of the same party as the president doesn't have a lot of incentives to push back or to even do any oversight, but then a divided Congress can rarely gain the traction that it needs to do effective oversight. So the president's in a good structural position here.

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ABDELFATAH: We're obviously living in a moment of crisis right now.

ARABLOUEI: And after looking at how crises have acted as catalysts for increasing presidential power, we wanted to dig into a few pressing questions about what powers President Trump has.

ABDELFATAH: Things like whether the president can adjourn Congress or even change the date of the election. So how much of that is true?

ANDREW RUDALEVIGE: Not much.

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RUDALEVIGE: Elections are actually set in statute. You can't change the date of them unilaterally. Also, importantly, the 20th Amendment to the Constitution says that as of January 20 at noon, a presidential term ends. So even if the election were shifted, constitutionally at least, President Trump could not remain in office into a new presidential term when we'd expect it to occur. The adjournment question, it's interesting. So back in the day - right? - when the framers were thinking about Congress and the presidency, they did not want a situation where the president could get rid of Congress because the king of England had had a power to basically dissolve Parliament and then rule on his own. And they did not want that to be able to be the case.

So they required, for example, that Congress meet every year and had control over its own schedule. And so the only power they gave the president here was to call them into session if they were happened to be out of session and something needed to be done. And I'll read you the piece of Article 2 Section 3. (Reading) If there is a disagreement between them - between the House and the Senate - with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.

So this is a case where, you know, the House might say I think we should adjourn on November 3 and the Senate says, no, December 5. Well, the text would suggest the president can choose between those dates, but it doesn't say that he can just get rid of Congress. And, in fact, Congress could just come back into session the next, you know, 30 seconds later if it felt it had been dismissed unjustly. There's a reason that clause has never actually been activated in American history because it hasn't proven to be a problem.

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ABDELFATAH: So, OK, thinking about everything we've been talking about - right? - and just, you know, going back to that original question, that original concern that the framers of the Constitution had about putting too much power in the hands of one person, it's making me wonder, honestly, if we're headed towards the framers' worst nightmare. Like, are we headed towards dictatorship in some form?

RUDALEVIGE: Yeah. Well, to a degree, I think we're there, right? I mean, again, part of this is not any single president's fault or maybe not even Congress' fault. I mean, if you think about the status of the United States, the size of the government and what it was expected to do in 1789, you know, versus the global role of the United States now, we've built up our executive branch that supports that. So we would have to have a pretty serious conversation about reining in the scope of government generally in order to shrink the role of the president. You know, some have even argued we need to go back to a plural presidency because we've made it impossible for one person to serve in this job.

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RUDALEVIGE: But at the moment, it looks like the president has the power to do more or less what he wants in this area. And so, you know, this notion of presidential power is partly based on the idea that Congress has delegated all these powers over time. They haven't done a very good job of housekeeping. They haven't done a very good job of sort of enforcing the rules that they wrote back in the 1970s about when they should be involved in making these decisions. And so, effectively, you've left the field open, and presidents are not stupid. They tend to look at this and go, well, here's how I can make my mark. I can't get this law passed, but I can change the way this older law is enforced that will kind of do the same thing. And unless somebody pushes back on me, you know, I'm going to keep pushing myself.

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ABDELFATAH: Thank you so much for giving us so much of your time.

RUDALEVIGE: Hey, thank you.

ARABLOUEI: Thanks, Andy.

ABDELFATAH: Take care.

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ABDELFATAH: That's it for this week's show. I'm Rund Abdelfatah.

ARABLOUEI: I'm Ramtin Arablouei. And you've been listening to THROUGHLINE from NPR.

ABDELFATAH: This episode was produced by me.

ARABLOUEI: And me and...

JAMIE YORK, BYLINE: Jamie York.

LAWRENCE WU, BYLINE: Lawrence Wu.

LAINE KAPLAN-LEVENSON, BYLINE: Laine Kaplan-Levenson.

JULIE CAINE, BYLINE: Julie Caine.

KIA MIAKKA NATISSE, BYLINE: Kia Miakka Natisse.

N'JERI EATON, BYLINE: N'Jeri Eaton.

ABDELFATAH: Fact-checking for this episode was done by Kevin Vokl.

ARABLOUEI: Thanks also to Anya Grundmann, and thanks to Alex Curley and Steve Tyson for their voiceover work.

ABDELFATAH: Our music was composed by Ramtin and his band Drop Electric, which includes...

ANYA MIZANI: Anya Mizani.

NAVID MARVI: Navid Marvi.

SHO FUJIWARA: Sho Fujiwara.

ARABLOUEI: If you have an idea or like something on the show, please write us at throughline@npr.org or find us on Twitter - @throughlineNPR.

ABDELFATAH: Thanks for listening.

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