Evolution of the Presidency

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Evolution of the Presidency

• From Constitutionalism to the Administrative State

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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 peoples representatives intended
  a particular reading

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3. Weaknesses

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

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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

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3. Weaknesses

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

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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.

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3. Weaknesses

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

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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

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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

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Expansion of the Veto Power
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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

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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

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IV. The Modern Presidency

• Justifications
• Expanded power needed in modern world.
• Modernization administrative expansion.

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IV. The Modern Presidency

• Justifications
• Expanded power needed in modern world.
• Modernization administrative expansion.
• Increased global complexity national security
  state

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2. Nationalization of State and Private Efforts

1. Social Welfare New Deal rather than state/local
   charities
2. Permanent Mobilization Decision to retain large
   armed forces after World War II

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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

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C. Effects of the Expansion of the Presidency

1. Persuasion Key Institutional power insufficient
   to pass agenda (? rhetorical Presidency)
2. Information Power Incentive to manipulate
   flow of information to public and other branches
3. Focus on Foreign Policy Presidential power is
   greater, allowing expectations to be met