Running Head: EXECUTIVE POWER LARGER THAN INTENDED
The Evolution of Executive Power in the United States Government:
Abandoning the Intended Purpose
Parker W. Benner
Westview High School
1
EXECUTIVE POWER LARGER THAN INTENDED
2
The United States of America was formed in order to escape an oppressive monarchical
government that failed to represent its subjects and gave one man ultimate power. After having
spent years without a real say in what their government inflicted on them, the colonies grew
infuriated. The ensuing war ended with the formation of the Articles of Confederation, but
because the weak central government immediately caused issues, the Constitution was eventually
formed. Still skeptical of a monarchical central power, the power was split three ways between
sections of the government. While the intended purpose of the separation of powers was to
prevent the institution of a de facto monarch, ambiguity in the wording of the constitution,
perceived popularity of presidential policies, and collective selective memory have played large
roles in drastically expanding executive power.
The concept of reducing the concentration of authority has been around since Aristotle,
and America decided to put its own version of this system into effect (McHugh, 2006). To
prevent need for future violent rebellion against a monarch or de facto king, the Constitution
dictates three separate but equal branches of government with different powers and purposes
(McHugh, 2006). The phrase “separation of powers” is never used in the Constitution, but
instead there are three Articles that describe in detail the different branches of government,
including their powers and limitations (McHugh, 2006). The Legislative, Judiciary, and
Executive branches of the United States each have their own responsibilities and the ability to
check the powers of the other branches in some manner. The Legislative branch represents the
opinions of the people and the states. This branch has the power to create laws and control the
budget, including the power to tax, borrow money, and spend money (McHugh, 2006). The
Judiciary branch is in charge of interpreting the Constitution and the law if any conflict regarding
EXECUTIVE POWER LARGER THAN INTENDED
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it should arise (McHugh, 2006). Lastly, the Executive branch enforces the laws passed by
Congress and acts as the political figurehead of the nation (McHugh, 2006).
The Executive branch is the most interesting of the three because the position of the
President, the head of the branch, seems to be very similar to a monarch. The President acts as
the commander in chief of the armed forces, has final say on all bills passed by Congress, can
sign bills into law or choose to veto them, and appoints Judges to the Supreme Court (Art. 2, § 2
and 3). But while the President’s power is great, it is not ultimate. Both the Judiciary and
Legislative branches can check Presidential power. Congress can impeach the President from
office if he is found guilty of certain high crimes and misdemeanors, and can reject any
appointment or treaty the President makes (U.S. Const. art. 2, § 4). The Judicial branch checks
Presidential power through judicial review, or the process of reviewing the constitutionality of
actions that cause a conflict in court (U.S. Const. art. 3, § 2).
Article II, Section 3 of the Constitution gives the President the power to “from time to
time give to the Congress Information on the State of the Union, and recommend to their
Consideration such Measures as he shall judge necessary and expedient.” This power was
intended to give the President the power to suggest a course of action to Congress once a year
upon his evaluation of the state of affairs in the country. This still exists, but Presidents also are
constantly holding meetings with members of the House and Senate to discuss policy and dictate
a course of action. The phrase “from time to time” (U.S. Const. art. 2, § 3) is vague at best, and
looser or stricter interpretations of the Constitution allow for a President with a fluctuating
degree of power.
EXECUTIVE POWER LARGER THAN INTENDED
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James Madison, one of the founding fathers of our nation and our fourth President, used
his presidency to attempt to institute his interpretation of the impact that Executive power should
have on the United States (Kleinerman, 2014). As one of the major contributors to the Federalist
Papers, Madison was one of the most involved advocates for the Constitution. After seeing the
system in practice, however, Madison realized that the Constitution was flawed (Kleinerman,
2014). During the war between France and Great Britain, George Washington issued a
Proclamation of Neutrality (Kleinerman, 2014). Alexander Hamilton applauded Washington’s
somewhat controversial choice to decide on such a policy with his Executive power
(Kleinerman, 2014). In response to this, Madison argued that for this fledgling government to
survive “simplicity is required” (Kleinerman, 2014, p.6). Instead of trying to infer new extended
powers for the role of the executive, Madison firmly insisted that that what the Constitution
dictates is all that is allowed (Kleinerman, 2014). Hamilton, and many others, argued that if the
Constitution did not restrict or dictate a certain power, the President may have it (Kleinerman,
2014). The implied powers in the Constitution are rarely, if ever, argued over today, but Madison
knew that such a mindset would cause nearly unchecked expansion of Presidential power
(Kleinerman, 2014). Madison’s presidency was his attempt to set a precedent that others could
follow, but those who view the president as the leader of the United States, and not just the man
who executes the will of Congress, mocked his minimal use of presidential power (Kleinerman,
2014). Madison argued that by the standards of the Constitution he did well. Take for example
the War of 1812 (Kleinerman, 2014). When Madison reccomended Congress increase the
military budget and they did not, he did not fight their decision because that power is not dictated
EXECUTIVE POWER LARGER THAN INTENDED
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in the Constitution to be a power of the president (Kleinerman, 2014). It did not take long for his
predictions to ring true.
The seventh president of the United States, Andrew Jackson, exemplified the fears of
Madison. Instead of keeping to the Constitution he inferred power, directed policy, and even
deliberately disregarded it. To quote the White House’s website: “More nearly than any of his
predecessors, Andrew Jackson was elected by popular vote; as President he sought to act as the
direct representative of the common man. Madison feared the potential of the executive power
“precisely because this executive is elected” (Kleinerman, 2014, p.8). The biography of Jackson
goes on to describe him as a man of the people who “defended himself” when he fought the
banks and warded off the unfair criticisms of his leadership (Freidel & Sidey, 2006). The
biography, copyrighted by the White House Historical Association, neglects what was the most
important and controversial series of events in Jackson’s two terms: the removal of the Cherokee
Nation from their native lands in Georgia. This was a tragedy not only for the Cherokee, but for
the future of the balance of powers, as it enabled uncontrolled growth of the Executive branch’s
power.
Andrew Jackson was a strong proponent of manifest destiny (Freidel & Sidey, 2006).
When Georgia tried to establish their control over the Cherokee Nation, he was behind them
every step of the way (Sundquist, 2010). The Cherokees and their friends and sympathizers did
not give up their native lands without a fight, however, and strove to prove to the Supreme Court
that they were a civilized people (Sundquist, 2010). In the case of Worcester v. Georgia, the
Supreme Court ruled against Jackson and Georgia (Sundquist, 2010). Jackson responded by
refusing to enforce their decision and eventually allowing an illegal treaty to pass that forced the
EXECUTIVE POWER LARGER THAN INTENDED
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Cherokee off their land (Sundquist, 2010). Rather than performing his duty as President and
enforcing the ruling of the Supreme Court, he made his own decision and the Supreme Court
could do nothing about it. President Jackson was able to find loopholes that allowed his actions
to be Constitutional, but it is clear that “King Andrew I” (Freidel & Sidey, 2006, p.1) had warped
the intended role of the office. What is more, Jackson showed that the President can bend the
rules to suit his needs without consequence and normally with great levels of success.
Andrew Jackson is seen by many as a role model president; he is featured on the $20 bill.
Most, if not all, presidents following Jackson also acted as though they were the direct
representative of the people, and this is especially made clear by the huge increase in executive
orders issued by presidents as shown in Fig. 1.
Despite the downward trend in executive orders in recent regimes, they still number in
the hundreds for a two term president (Peters, 1999-2014). In contrast, James Madison only
issued a single order in eight years in office. Despite a few anomalies, presidents began to have a
greater and greater influence on public policy, peaking with Franklin D. Roosevelt and his New
Deal at 3721 orders (Peters, 1999-2014). Contrastingly, modern presidents are deemed reserved
when they issue less than 300 orders, an amount that would be unheard of at the conception of
the office.
Barack Obama to date has issued 194 orders, with approximately six years of service as
president (Peters, 1999-2014). Obama is of the opinion he has “actually been very restrained”
(Knowlton, 2014, p.1). He is correct in that he has acted less imperialistic than presidents in
recent memory, but it is a far cry from the amount of involvement of the first presidents (Peters,
1999-2014). On November 9, 2014, Obama threatened Congress with taking executive action if
EXECUTIVE POWER LARGER THAN INTENDED
7
they did not pass a bill he would sign on immigration reform (Knowlton, 2014). Obama’s actions
and the public’s response show that America has come to accept that the Executive’s role is to
lead the Legislature, and not the other way around.
The system of government used in the United States was intended to give the power to
the direct representatives of the people and control it by dispersing authority amongst three
independent branches. The President has the role of executing the laws made by Congress and
the findings of the Supreme Court, but vague wording has allowed for more powers to be
inferred. The collective selective memory of our nation enabled Andrew Jackson to be a de facto
monarch with little to no repercussions, and has more recently allowed for current president
Barack Obama to be titled as “reserved” with his 194 executive orders (Peters, G., 1999-2014).
Presidents now seem to act as though winning the popular vote by any margin mandates them
enough power to be the direct representative of the people and act as such to control the actual
representatives of the people: Congress. The actions of current and recent presidents such as
Barack Obama undermine the intended role of the executive and have skewed the balance in the
separation of powers, perhaps irreparably.
EXECUTIVE POWER LARGER THAN INTENDED
President
George Washington
John Adams
Thomas Jefferson
James Madison
James Monroe
John Quincy Adams
Andrew Jackson
Martin van Buren
William Henry Harrison
John Tyler
James K. Polk
Zachary Taylor
Millard Fillmore
Franklin Pierce
James Buchanan
Abraham Lincoln
Andrew Johnson
Ulysses S. Grant
Rutherford B. Hayes
James Garfield
Chester Arthur
Grover Cleveland - I
Benjamin Harrison
Grover Cleveland - II
William McKinley
Theodore Roosevelt
William Howard Taft
Woodrow Wilson
Warren G. Harding
Calvin Coolidge
Herbert Hoover
Franklin D. Roosevelt
Harry S. Truman
Dwight D. Eisenhower
John F. Kennedy
Lyndon B. Johnson
Richard Nixon
Gerald R. Ford
8
Term
Total Orders1
Average / Year
Years in Office
EO Number Range
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
Total
I
II
Total
I
II
Total
Total
Total
I
II
Total
8
1
4
1
1
3
12
10
0
17
18
5
12
35
16
48
79
217
92
6
96
113
143
140
185
1,081
724
1,803
522
1,203
968
3,721
907
504
403
484
266
218
214
325
346
247
99
169
1
0.25
1
0.13
0.13
1
2
3
0
4
5
4
5
9
4
12
20
27
23
11
28
28
36
35
41
145
181
225
217
215
242
307
117
133
101
61
67
55
75
63
62
62
64
69
7.85
4.00
8.00
8.00
8.00
4.00
8.00
4.00
0.08
3.92
4.00
1.35
2.65
4.00
4.00
4.12
3.89
8.00
4.00
0.55
3.46
4.00
4.00
4.00
4.53
7.47
4.00
8.00
2.41
5.59
4.00
12.12
7.78
3.78
4.00
8.00
4.00
4.00
2.84
5.17
5.55
4.00
1.55
2.45
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
unnumbered
5075 - 6070
6071 - 9537
9538 - 10431
9538 - 10029
10030 - 10431
10432 - 10913
10432 - 10695-A
10696 - 10913
10914 - 11127
11128 - 11451
11452 - 11797
11452 - 11698
11699 - 11797
11798 - 11966
EXECUTIVE POWER LARGER THAN INTENDED
Jimmy Carter
Ronald Reagan
George Bush
William J. Clinton
George W. Bush
Barack Obama
Fig. 1 (Peters, 1999-2014)
Total
Total
I
II
Total
Total
I
II
Total
I
II
Total
I
II
320
381
213
168
166
364
200
164
291
173
118
193
147
46
9
80
48
53
42
42
46
50
41
36
43
30
33
37
25
4.00
8.00
4.00
4.00
4.00
8.00
4.00
4.00
8.00
4.00
4.00
5.83
4.00
1.83
11967
12287
12287
12500
12668
12834
12834
13034
13198
13198
13371
13489
13489
13636
-
12286
12667
12499
12667
12833
13197
13033
13197
13488
13370
13488
13681
13635
13681
EXECUTIVE POWER LARGER THAN INTENDED
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References
Peters, G. (1999-2014). The American Presidency Project. Executive Orders: WashingtonObama [Data File]. Retrieved from http://www.presidency.ucsb.edu/data/orders.php
Freidel, F, & Sidey, H (2006). Andrew Jackson. In The Presidents of the United States of
America. Retrieved from http://www.whitehouse.gov/about/presidents/andrewjackson
Kleinerman, B. A. (2014). The constitutional ambitions of James Madison's presidency.
Presidential Studies Quarterly, 44(1), 6+. Retrieved from
http://ic.galegroup.com/ic/uhic/AcademicJournalsDetailsPage/AcademicJournalsDetails
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s=&displayquery=&mode=view&displayGroupName=Journals&limiter=&currPage=&disableHighli
ghting=false&displayGroups=&sortBy=&search_within_results=&p=UHIC&action=e&c
atId=&activityType=&scanId=&documentId=GALE%7CA357863201&source=Bookma
rk&u=s1185784&jsid=8973a132cafd6cf676e3cbdb803f2315
Knowlton, B. (2014, November 23). Obama defends his use of executive authority on
immigration. The New York Times. Retrieved from
www.nytimes.com/2014/11/24/us/politics/obama-immigration.html?_r=0
McHugh, C. B. (2006). Separation of powers. Utah Bar Journal, 19(4), 18-21. Retrieved from
http://www.lexisnexis.com/hottopics/lnacademic/?verb=sr&csi=153629
EXECUTIVE POWER LARGER THAN INTENDED
Sundquist, M. L. (2010). Worcester v. Georgia: a breakdown in the separation of
powers. American Indian Law Review, 35(1), 239-255. Retrieved
from http://www.jstor.org/stable/41148666
The Constitution of the United States of America (1789).
Worcester v. Georgia: a breakdown in the separation of powers
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