A president has once again claimed sweeping authority. “When somebody is the president of the United States, the authority is total,” Donald TrumpDonald TrumpUN meeting with US, France canceled over scheduling issue Trump sues NYT, Mary Trump over story on tax history McConnell, Shelby offer government funding bill without debt ceiling MORE asserted this month. He was likely claiming constitutional power to handle pandemics. But was he correct? Does the presidency enjoy the authority to forcibly vaccinate the healthy or quarantine the sick? If we polled legal scholars today, I can guarantee that all would criticize his claim. However, almost all legal scholars would admit that the presidency could eventually acquire a pandemic power, and therein lies the rub in the answer.
The presidency today is like a Swiss Army knife in that it does everything. Indeed, presidents start wars, backed by the most lethal armed forces in history. Under the guise of interpreting the Constitution and federal laws, presidents twist both to advance their policies. Some laws are stretched or minimized beyond all recognition, while some other laws are declared unconstitutional, by artfully deploying obscure legal arguments.
It was not meant to be this way. The Framers never envisioned presidents as lordly law shapers or war declarers. The breadth of executive authority explains why the United States has what Arthur Schlesinger Jr. called an “imperial presidency” since the institution had become more kingly over time. In many aspects, the American presidency is more potent than the British monarchy that incited the Declaration of Independence.
While Trump talks a good game, he seems wary of draconian solutions to check the coronavirus. Yet all it might take is for one intrepid president to seize authority during a public health emergency. If a president takes that first step toward exercising a pandemic power, say by ordering a national quarantine, he or she will certainly have a few defenders because after all, the presidency seems best situated to react with speed and decisiveness. Some observers might imagine that if these particular new policies of the president are right, then no one should criticize their legality.
Upon that constitutional foothold, the successors of that president would inevitably erect a new broader conception of executive power. In a game of executive whataboutism, presidents and their defenders will insist that if Abraham Lincoln, Theodore Roosevelt, or Barack Obama took some acts in the past, they can take such acts as well. Some legal scholars today will gently reassure that “there is nothing new here” since it has all been done before. This way, presidents create new precedents, cite old precedents, and systematically inflate their executive power in the process.
We may like to think this is a modern phenomenon and the fault of Trump or Obama. But the lure and charms of a mutating presidency are ancient. While running for president in 1912, Woodrow Wilson announced, “All that progressives ask or desire is permission, in this era when development or evolution is the scientific word, to interpret the Constitution according to the Darwinian principle.” What he meant is that those old words had to be infused with new meanings, what we call a living Constitution.
In no other area has the idea of a living Constitution, the notion that its meaning ought to change over time, been crowned with such success. Every president knows that as he or she stretches the Constitution and federal laws, partisan followers will preserve, protect, and defend them, particularly when those stretches serve party agendas. Any Democratic president who advances the party platform can do almost anything and expect roaring vindication from allies. Think of Obama trying to save the Affordable Care Act by conjuring appropriations out of thin air. Similarly, any Republican president who advances the traditional cause of tax cuts can also anticipate the same applause from partisan followers.
These ploys will always generate howls from the opposing party. But we know that the complainers will turn into cheerleaders once their favorite president does much the same thing to advance their agenda. We have met the enemy and it is each and every one of us. What can be done? To start, lawmakers must abandon their myopia. They need to stop thinking, “Do I favor this policy of the president?” and instead ask, “Is this legal and constitutional?” They have to adopt a consistent view of executive power, not flip flop each time a new occupant enters the White House.
This will hopefully cause them to reclaim the constitutional rights of their place, as James Madison expected they would. In this moment, when we have no clear sense of who will be our next president, we are now in the perfect climate to consider what the American presidency has become over time and to reacquaint ourselves with what it ought to be.
Saikrishna Prakash is a law professor at University of Virginia and a senior fellow at the Miller Center of Public Affairs, and the author of “The Living Presidency: An Originalist Argument Against Its Ever Expanding Powers.”