so I'm here with Jeffrey Rosen the head of the national Constitution Center in Philadelphia and what I want to talk about in this video Jeffrey is how has uh the powers of the president how have they changed over time since the the ratification of the Constitution well they've hugely expanded and it's so striking that the framers of the Constitution were concerned that Congress would be the most dangerous branch and they were so concerned about that that they split Congress in two and created this bamal legislature the House and Senate in order to divide its power uh they would have been stunned to learn that the president is twice as powerful as Congress today uh they created the UN unitary executive because they were less concerned about executive than Congressional tyranny and it's really interesting to think about why that why that happened and what do you mean by the president today is twice as powerful as Congress well I I guess that was a hypothesis but um it's arguable that having assumed powers to deploy troops without Congressional authorization to Target and kill American citizens abroad to engage in executive orders uh without Congressional approval uh critics of the expansion of Presidential Power say that the president has usurped Congressional Authority uh he's exceeded his power under the take care Clause of uh article uh 2 Section 3 of The Constitution and that in this way presidential Authority has hugely expanded while Congressional Authority has uh contracted I see and and what what are I mean what are the Dynamics that allow this to happen over the last several hundred years well there's a wonderful essay on the national Constitution Center's interactive Constitution by William Marshall and it's you can find it if you click on Article 2 Section 3 and and William Marshall is trying to figure out what some of these Dynamics were uh and he comes up with a bunch of reasons why the president has been so dominant first he says political culture the president has become the focus of national power and culture in a way that he wasn't in a pre- internet pre-television uh pre- radio age and uh this was the case even during World War II when Justice Jackson and the steel seizure case that we talked about uh before talked about executive power having the advantage of concentration in a single head in whose choice a whole nation has a part making him the focus of public hopes and expectations but there's no question that the uh focus on the individual person of the presidency has vast expanded it's just this idea that there's one person there people associate that person hey they're are head of state they put their hopes and fears on that person that that just gives them inherently more power it does and you know you can call it culture you can call it celebrity but it's so striking that the the framers are so concerned that the president not be a king and they reject Alexander Hamilton's suggestion which again we know from the musical that the president be elected for life they they they want to have four-year terms and then the subsequently a constitutional amend has passed the 22nd amendment to limit the president to only two terms and despite all that the presidency has expanded so much it's not only the political culture um Marshall points to a bunch of other uh reasons uh executive branch precedence basically every president has been successful in asserting increasingly sweeping exercises of executive power this is a bipartisan phenomenon from president uh Clinton to George W bush to President Obama the office of legal counsel uh in the justice department has uh authorized increasingly sweeping exercise of executive Authority and we find presidents of both parties uh either criticized or praised for having established these executive branch presidents uh there's also just the expansion and just to make sure I make sure I understand I mean it's just this idea that even if if you were just president I come in into office I might even be more restrained but then the next guy or or gal that comes in can cite your presidency and say hey he did it why shouldn't I be able to do it so there's this it's it's never going to go back presedent will never take you take Powers away they'll only add to them that's exactly right and this and this really important but not so well-known office the office of legal counsil which several Supreme Court justices have been the head of um is basically a mini Supreme Court for the executive branch and IT issues opinions about what the president can do and those opinions are relied on by subsequent presidents to justify the expansion of executive power fascinating um you know not all presidents have taken this view my I'm writing a book now about William Howard Taft who was the only president who went on to become chief justice and he thought he had a very literalist or judicial conception of the presidency he thought the president could only do what the Constitution explicitly authorized he refused to take actions that he thought weren't authorized by the Constitution and in this sense he gives us a vision of what a more constitutionally constrained presidency would look like but even though he did that as we were just talking about people who came after Taft could just cite people before Taft and say AB absolutely right in tap's predecessor uh Theodore Roosevelt had the most sweeping conception of the presidency he said the president can do whatever the Constitution doesn't explicitly forbid and his stewardship conception of the presidency definitely has been Vindicated by time and you'd have to say presidents today are much more rooseveltian than they are uh The Heirs of William arft yeah so so what other Dynamics are at play we talk about political culture That Celebrity into one person this precedent that keeps expanding Powers what else well there's the huge expand of the federal government and the administrative State and the growth of executive agencies in the post new deal period from the Environmental Protection Agency and even Progressive Era agencies like the Federal Trade Commission or the Federal Reserve and and uh workplace safety National Park uh management Smoke Stack emissions college sports there's almost no area of American life that uh these executive agencies don't regulate uh the president by appointing the heads of these agencies and having the ability to fire them can can issue executive orders that have the force of law even though they're not passed by Congress and that can lead to really dramatic clashes between uh the president's use of executive orders and what Congress says that it actually intended as we've seen during the Obama Administration so that's a big factor as well yeah and and what other Dynamics are are are there well the modern world is moving a lot faster in an age of the internet and instant communication there are a lot more uh emergencies uh attacks are much more sudden uh than they were at the time of the framing and have to be repelled more quickly so just the speed of contemporary life has led to the president to assert new emergency powers and then finally and I'm just tracking William Marshall's great essay here there's the rise of partisan politics because of Congress becoming so polarized often people in Congress see their responsibility to support their party rather than to take seriously their constitutional or institutional uh duties as legislators so they may be unwilling to uh or a check the president's power when their party is in the majority they're just willing to write the president a blank check when he happens to be uh a member of their party um and I can see that when when it's the same party in in charge of Congress and the presidency uh but what about when it's the other way around obviously you know recent times it seems like the Congress is being very effective at at limiting Presidential Power well because of partisan you do have either Congressional inaction or refusal to act on presidential uh proposals um but often uh critics of congressional inaction complain Congress is refusing to uh veto bills for example uh sorry to override presidential vetos or to refuse to pass laws on constitutional grounds instead they're filing lawsuits they're kicking things up to the court when when President Obama issued his executive orders about immigration uh there was a lawsuit filed so increasingly the Judiciary is becoming the Arbiter about disputes between Congress and the president the framers expected a much more direct clash between the president and Congress and thought that both of those uh branches of government would make decisions on constitutional grounds and would directly check each other it's this idea that instead of Congress passing uh legislation and then president either signing them or vetoing them uh that when you have this gridlock that the president starts taking more executive orders uh and then Congress takes the president to court over that's very well stated and that's definitely not what the what the framers intended and so this is really F I mean just to go over them once again when you just have one person in charge and this is you know it starts you know with Washington who who was this you know huge personality obviously American hero uh and then so that that by itself put a lot of power in the president then every president comes along and maybe does a little bit more than the ones that came before it and then anyone can cite that President as hey he he pulled it off why can't I as you mentioned the federal government is far far far larger than it was uh in the time of when the when the Constitution was written in the time of Washington and and just the speed with which things are happening you it's necessary for a president to whether it's in war or regulation or other things to just be able to take action quickly and then finally uh partisan politics I guess you know that one could it seems like could be debated either way depending on which parties are in power where but uh it is fascinating it does seem like this has been a a very clear Trend over time it's true that's those are all great reasons offered by William Marshall and his interactive Constitution essay there's one other Factor and that is the fact that both branches the president and Congress are not evaluating their actions on constitutional grounds the way they used to the president has the veto power under Article 1 Section 7 and uh in at the time of the framing the presidents uh often issued vetos on constitutional grounds President Andrew Jackson who vetoed the rechartering of the Second Bank of the United States vetoed it on the grounds that he could uh veto any bill that he considered unconstitutional and he sided with Thomas Jefferson's view that the bank was unconstitutional rejecting the view of Hamilton and George Washington that it was okay but nowadays presidents tend not to issue vetos on constitutional grounds and Congress tends not to debate bills in constitutional terms and as a result uh Critics on both sides of the aisle say both branches are exceeding their Constitutional Powers and failing adequately to check the Constitutional excesses of the other Branch it's fascinating something I never fully appreciated that what you mentioned his historically you know Washington and Adams and Jefferson they viewed their veto as kind of like a light Supreme Court a little bit like is this constitutional or not and that's why I'll veto it but then later president started to say no if I just disagree with it I just think it's a bad law uh I will veto absolutely and this idea that the Supreme Court is the sole Authority Arbiter of constitutional uh of the constitutionality of laws would have surprised the framers they had a theory of departmentalism they thought that all three branches had an obligation to evaluate the constitutionality of laws the Congress when they passed the bill the president when he signed it and the courts when they reviewed it and only when all three branches agreed could a law go into a fact uh but that uh now we tend to punt all constitutional questions to the Supreme Court and that has left something of a vacuum on the side of the president of the Congress well thanks so much for this Jeff thank you