The Evolution of Presidential Power

What can and can't the president do — and how do we know? The framers of the U. S. Constitution left the powers of the executive branch powers deliberately vague, and in doing so opened the door for every president to decide how much power they could claim. Over time, that's become quite a lot. This episode originally ran in 2020 and has been updated with new material. To access bonus episodes and listen to Throughline sponsor-free, subscribe to Throughline+ via Apple Podcasts or at plus.npr.org/throughline. See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:01Speaker 00

  We will learn something on election night, but not everything. There's a lot we will not know, especially when it comes to close races. And we'll know much more the next morning and the morning after that. So save yourself a little time scrolling and listen to Up First. We'll be there when you wake up each and every morning this week with the latest midterm election news.

• 0:53Rund Abdelfatah?

  On Friday, June 1st, 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?

• 1:08Speaker 02

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

• 1:14Speaker 03

  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.

• 1:34Speaker 02

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

• 1:44Speaker 03

  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.

• 2:03Speaker 03

  They're very nervous about the ability of the government to deal with it.

• 2:07Rund 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.

• 2:20Speaker 02

  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.

• 2:34Speaker 04

  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.

• 2:44Speaker 02

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

• 2:51Speaker 03

  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.

• 3:02Rund Abdelfatah?

  By the way, this is Andy Ruda Levich. He's a professor at Boding College.

• 3:06Speaker 03

  And has been researching and teaching about the executive branch for about 20 years now.

• 3:10Rund 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.

• 3:20Speaker 03

  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.

• 3:33Rund Abdelfatah?

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

• 3:42Speaker 04

  Mr. Wilson moved that the executive consists of a single person.

• 3:48Speaker 03

  And there's dead silence.

• 3:52Rund 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.

• 4:05Speaker 02

  And then?

• 4:06Speaker 03

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

• 4:14Speaker 02

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

• 4:31Rund 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?

• 4:39Speaker 03

  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.

• 4:45Rund Abdelfatah?

  Naturally, don't we all?

• 4:47Speaker 03

  Never know when you're gonna 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."

• 5:01Speaker 02

  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.

• 5:17Speaker 03

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

• 5:24Speaker 05

  "The president shall be commander in chief of the Army and Navy of the United States."

• 5:30Speaker 03

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

• 5:36Speaker 05

  "By and with the advice and consent of the Senate."

• 5:40Speaker 03

  He's allowed to make treaties.

• 5:42Speaker 05

  "By and with the advice and consent of the Senate."

• 5:47Speaker 03

  But all of these, pretty much, except for the pardon power, have this big asterisk, right? Because they require the Congress Act.

• 5:54Speaker 05

  "He shall from time to time give to the Congress information of the State of the Union."

• 6:01Speaker 03

  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.

• 6:09Rund 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.

• 6:23Speaker 02

  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.

• 6:38Rund Abdelfatah?

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

• 6:47Speaker 03

  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."

• 6:57Speaker 06

  I, Franklin Delano Roosevelt, do solemnly swear. I, Harry S. Truman, do solemnly swear.

• 7:04Speaker 07

  I, John Fitzgerald Kennedy, do solemnly swear.

• 7:07Speaker 06

  That I will faithfully execute the office of President of the United States.

• 7:12Speaker 07

  I, Richard Billhouse Nixon, do solemnly swear. I, Ronald Reagan, do solemnly swear. I, William Jefferson Clinton, do solemnly swear.

• 7:19Speaker 06

  And will to the best of my ability.

• 7:22Speaker 07

  I, George Walker Bush, do solemnly swear. I, Barack Hussein Obama. I, Donald John Trump. I, Joseph Robinette Biden Jr., do solemnly swear.

• 7:29Speaker 06

  Reserve, protect, and defend the Constitution of the United States. So, thank God.

• 7:41Rund Abdelfatah?

  I'm Rande Fatah.

• 7:43Speaker 02

  I'm Ramtin 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.

• 8:05Rund 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.

• 8:20Speaker 08

  Hi, this is Kumari from Chicago and you're listening to Throughline from NPR. 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, it's just pure genius. Sounds so good in my headphones. So again, thanks, guys. You're doing great work.

• 8:42Speaker 09

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• 8:46Speaker 10

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• 9:21Speaker 11

  Midlife brings a lot of changes. Your Turn with Alison Aubrey is a new podcast to help you navigate the twists and turns. From health and relationships to creativity and purpose, we can help steer your next chapter with Your Turn with Alison Aubrey. Find it on the NPR app or wherever you get your podcasts.

• 9:43Speaker 12

  This week on Wait, Wait, Don't Tell Me, panelist Paula Poundstone shares a hot tip for saving money this Halloween. I used to have my kids go out early enough that I could take their candy and give it out.

• 9:57Speaker 11

  That's so smart.

• 9:58Speaker 12

  Yeah. Don't miss our full conversation and the rest of our games. Listen to the Wait, Wait, Don't Tell Me podcast in the NPR app or wherever you get your podcasts.

• 10:08Speaker 13

  Part one, The Modern Presidency.

• 10:13Rund 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.

• 10:44Speaker 02

  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.

• 10:55Speaker 03

  You've got people like Andrew Jackson, famously King Andrew, who sees himself as the tribune of the people. 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. The Civil War is conducted, especially in the first year of it, unilaterally by the president responding to the secession. And there's a whole lot of debate over Lincoln as a tyrant. 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

• 11:36Speaker 03

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

• 11:53Speaker 06

  My friends, this is a day of national consecration.

• 12:00Speaker 03

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

• 12:11Speaker 06

  I will address them with a candor and a decision which the present situation of our people impels.

• 12:19Rund Abdelfatah?

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

• 12:24Speaker 03

  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 US 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.

• 12:46Speaker 06

  In the working out of a great national program that 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.

• 13:03Speaker 02

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

• 13:09Speaker 03

  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 president 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.

• 13:49Speaker 06

  Ladies and gentlemen, the President of the United States.

• 13:53Speaker 03

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

• 13:59Speaker 06

  My friend.

• 14:01Speaker 14

  I want to talk for a few minutes with the people of the United States about banking.

• 14:06Speaker 03

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

• 14:08Speaker 14

  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.

• 14:17Speaker 03

  Uh, 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, uh, 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.

• 14:46Speaker 03

  Nothing happens, you know, like in this big flash, right? It's not like there was no presidency and now suddenly there is a, 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.

• 15:07Speaker 02

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

• 15:18Speaker 03

  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. Uh, and by the way, he said at one point, if you don't give them to me, I'm going to use them anyway. Uh, and so that certainly, uh, got people to set up. Now, Congress, in fact, did give him the powers he was asking for in that case. But, you know, there is a lot of nervousness when he ran for an unprecedented third term in 1940.

• 15:47Speaker 14

  We will stand and look forward and confirm again that God sent guardian of our liberty, the kind of man that mankind needs, our beloved President Franklin D. Roosevelt.

• 16:03Speaker 03

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

• 16:14Rund Abdelfatah?

  I mean, the country was in pretty dire straits at that time. 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 at that moment?

• 16:34Speaker 03

  Oh, absolutely, yeah.

• 16:38Speaker 03

  I mean, conditions and context are hugely important here.

• 16:44Speaker 03

  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. They were moving very fast to give him the power he said he needed in order to make this crisis better.

• 17:04Speaker 06

  The army that Germany has built up in four years swings in honor past Hungary's strongman Admiral Haughton. The young men of the new German Reich welded into a mighty war machine.

• 17:15Speaker 03

  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, to support Britain and the Soviet Union, who were fighting Hitler alone at that point.

• 17:32Speaker 07

  I ask this Congress for authority and for funds.

• 17:37Speaker 03

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

• 17:55Speaker 07

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

• 18:03Speaker 03

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

• 18:11Speaker 06

  They blasted the quiet of a Sunday morning into the Holocaust of war.

• 18:14Speaker 03

  Here's the thing, Roosevelt turned out to be right about the threat of the Axis Powers.

• 18:18Speaker 07

  Sneak sky and sea raid on Pearl Harbor, America's mid-Pacific naval bastion.

• 18:23Speaker 03

  And so Congress has a little bit of buyer's remorse. We were wrong, president was right, and we should beat our French shell.

• 18:36Speaker 03

  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.

• 18:47Speaker 03

  People forget how much was nationalized during World War II. There's rationing, there's rent controls, 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.

• 19:09Speaker 03

  So the crisis really does precipitate changes in, you know, the way the US 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 a president to be from then on.

• 19:37Speaker 07

  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 ancestors, two-thirds of them American citizens.

• 19:51Speaker 02

  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.

• 20:22Speaker 03

  Yeah, it's an interesting question. I think even at the time, there were many people who thought it was a... 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 they were going to defer to the president and to the military in this case.

• 21:02Speaker 03

  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, 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.

• 21:43Speaker 02

  Coming up, a president pushes the limits of power so far it gets pushed over the edge into criminal territory.

• 22:01Speaker 07

  Hi, this is Michael Thornton from Ludbrook, Arkansas, and you are listening to The Criveline on NPR.

• 22:10Speaker 09

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• 22:14Speaker 15

  The countdown to the 2026 midterm elections is here. Voters will determine who controls the Senate, the House, and countless local offices. All the election coverage you need can be found on the NPR app, from big-picture political headlines to local stories that are curated just for you, plus live coverage as results come in on election night. Download the NPR app at npr.org/2026election.

• 22:38Speaker 16

  In the much-talked-about new movie, Wicker, Olivia Colman plays a woman who commissions a husband literally made of wicker. Yes, wicker. We'll tell you why the silly and bawdy new movie is also a nice cozy fall watch. Listen to Pop Culture Happy Hour via the NPR app or wherever you get your podcasts.

• 23:00Speaker 17

  Happy fall. Yes, the days are getting shorter and colder, and the rain can be a drag. But this is also the perfect time of year to get cozy. Life Kit has lots of ideas so you can embrace the change of seasons, with episodes on everything from making soup to exercising outdoors. Listen to the Life Kit podcast in the NPR app or wherever you get your podcasts.

• 23:23Speaker 13

  Part two, The Imperial Presidency.

• 23:32Speaker 18

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

• 23:40Speaker 02

  By 1950, the US 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.

• 23:57Speaker 18

  As reinforcements leave, President Truman promises victory however long the job may take.

• 24:04Rund Abdelfatah?

  Sending soldiers overseas without congressional authority was a move even FDR probably couldn't have imagined. By the time the US 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.

• 24:28Speaker 02

  Enter Richard Nixon.

• 24:30Speaker 07

  Mr. Nixon is appearing in the doorway now, preceded by members of his staff and members of the Secret Service.

• 24:38Speaker 03

  So when Nixon comes in, he has a plan to end the war in Vietnam?

• 24:44Speaker 07

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

• 24:51Speaker 03

  But he expands it. This is Julian Barber from Washington DC. He invades Cambodia without congressional authority. Which has been a subject of controversy in this country and abroad. 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.

• 25:39Speaker 19

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

• 25:48Speaker 02

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

• 25:58Speaker 19

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

• 26:03Speaker 02

  What did Nixon do to earn that term?

• 26:05Speaker 03

  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.

• 26:33Speaker 07

  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.

• 26:41Speaker 03

  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.

• 27:02Speaker 07

  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.

• 27:18Speaker 03

  The 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.

• 27:33Speaker 02

  And the fact that Nixon secretly recorded a lot of these conversations.

• 27:37Speaker 03

  So all of that, you know, is ultimately what brings Nixon down, right? Remember the famous line, "Is the president a crook?"

• 27:43Speaker 07

  Well, I'm not a crook.

• 27:44Speaker 03

  Well, I am not a crook.

• 27:45Speaker 07

  I've earned everything I've got.

• 27:47Speaker 03

  Well, it turned out he was a crook. It's really a sort of aggressive use of unilateralism, plus the distaste and just dismay at the expansion of Vietnam War that winds up causing a huge backlash to Nixon and to the imperial presidency.

• 28:07Rund Abdelfatah?

  So what did that backlash look like?

• 28:12Speaker 03

  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

• 28:56Speaker 03

  about whether we go to war or not. You have the Intelligence Oversight Act. You have Congressional Budget Act, which is designed to stop the president from trying to stop congressional initiatives that had been appropriated for.

• 29:10Speaker 03

  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.

• 29:19Speaker 03

  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.

• 29:41Speaker 02

  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. 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.

• 30:03Speaker 03

  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.

• 30:37Speaker 20

  Coming up, a new millennium launches a new set of standards for what presidents can not only do, but ultimately get away with.

• 31:09Speaker 09

  Hi, this is Kelly Simmons from St. Augustine, Florida, and you're listening to Throughline from NPR. Stay tuned for the following announcements and messages from our sponsors.

• 31:21Speaker 21

  This midterm election season, the NPR app is your single stop for clear, independent coverage. Stay on top of national and local storylines with news, stories, podcasts, and political analysis on demand. Download the NPR app and check out the Elections 2026 tab today.

• 31:44Speaker 22

  The number one issue in America right now is the economy, whether it's the high price of gas, a potential AI bubble, or the unsteady job market. At NPR's The Indicator, we've got you covered. Understand the economy in 10 minutes or less each day. Listen to The Indicator from Planet Money on the NPR app or wherever you listen to podcasts.

• 32:08Speaker 20

  This is Terry Gross. Listen to Fresh Air for thoughtful questions, like when I asked Steven Spielberg about porn titles. When John Waters was on our show, he said his favorite was shaving Ryan's privates. Did you know about this? No, not until this very moment. Listen on the NPR app or wherever you get podcasts. Part Three, The Unilateral Presidency.

• 32:40Speaker 23

  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.

• 32:57Speaker 02

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

• 33:08Rund 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.

• 33:20Speaker 24

  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 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.

• 33:50Speaker 02

  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.

• 33:59Speaker 24

  Terror is evil, and wherever evil exists, the three 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.

• 34:19Speaker 02

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

• 34:28Speaker 03

  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 that's passed three days after the 9/11 attacks and effectively delegates

• 35:11Speaker 03

  authority to the president to attack and respond to the 9/11 perpetrators. You know, and that law still exists.

• 35:23Rund 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.

• 35:37Speaker 03

  Mm-hmm.

• 35:38Rund Abdelfatah?

  But did he face a pushback from Congress or from the public?

• 35:43Speaker 03

  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, this is 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 what's going

• 36:28Speaker 03

  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.

• 36:41Speaker 24

  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.

• 36:55Speaker 25

  On my orders, coalition forces have begun striking selected targets.

• 36:59Speaker 03

  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.

• 37:32Speaker 24

  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.

• 37:42Speaker 03

  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.

• 37:50Speaker 26

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

• 37:58Speaker 03

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

• 38:05Speaker 26

  ...techniques, what others believe to be torture.

• 38:08Speaker 03

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

• 38:14Speaker 25

  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.

• 38:23Speaker 03

  It's torture. 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.

• 38:41Speaker 25

  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.

• 38:52Speaker 03

  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.

• 39:04Speaker 27

  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.

• 39:18Speaker 03

  So around this time is when you begin to have sort of the renewed debate. Over, you know, is there a new imperial presidency? This were a dictatorship, it'd be a heck of a lot easier. Just so long as I'm the dictator.

• 39:34Speaker 03

  Again, the debates that the farmers 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.

• 39:59Speaker 02

  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.

• 40:14Speaker 03

  Yeah.

• 40:15Speaker 02

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

• 40:25Speaker 03

  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.

• 40:42Speaker 02

  Yeah, yeah, please.

• 40:43Speaker 03

  The NATO operation in Libya in 2011.

• 40:46Speaker 28

  It has been 10 days since Mr. Obama ordered US forces into combat in Libya. Nearly 200 Tomahawk cruise missiles launched, more than 1,600 airstrikes.

• 40:57Speaker 03

  This is during the Arab Spring. Muammar Gaddafi had been the dictator of Libya forever. He had been battling against the US since the 1980s. And we're going to get rid of him.

• 41:10Speaker 03

  So this NATO operation was forwarded. The US is part of that. But the War Powers Resolution, which again was passed in 1973, says that if you're 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.

• 41:42Speaker 29

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

• 41:57Speaker 03

  Obama sort of rewrites the war power resolution, continues 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.

• 42:14Speaker 02

  Back in his first term, when he authorized airstrikes in Syria.

• 42:17Speaker 30

  The US 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.

• 42:28Speaker 07

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

• 42:34Speaker 03

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

• 42:44Speaker 02

  President Joe Biden also took advantage of his executive power, most notably perhaps with his plan to forgive hundreds of billions of dollars in student loan debt, a move that was mostly rejected by the US Supreme Court.

• 42:57Rund Abdelfatah?

  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.

• 43:17Speaker 03

  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 a 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.

• 43:43Speaker 02

  Do you think that President Trump's current use of executive power, at least what we've seen so far, do you think they follow the pattern of past presidents in terms of carving out power, or is this different?

• 43:57Speaker 03

  Some of the orders that President Trump have issued, to try to reinterpret the 14th Amendment, to tell the Justice Department not to enforce certain laws, to set aside civil service protections, to set aside past laws that deal with independent agencies and who you can fire in those agencies. Most importantly, maybe, setting aside congressional spending power, shutting down agencies effectively without any kind of congressional input. These are arguments that have been had over the course of American history. And President Trump is trying to go back to those settlements, to push past them, and to make really broad claims

• 44:42Speaker 03

  about what the president can do unilaterally.

• 44:50Speaker 02

  How much of this stage was set for this, based on the way past presidents and Congress, basically, all the branches have interacted around this increasing presidential power?

• 45:02Speaker 03

  Well, the framers had assumed that the other branches of government would push back, that they would have some institutional pride, if nothing else. And if you don't have that, then you have a problem. Because the courts can act to a point, they can say that what the president is doing is illegal, but then who enforces that? Right? You would hope that the Justice Department or other mechanisms of law enforcement. But if the president has claimed the power to control the Justice Department, the FBI, law enforcement generally, in ways that he then says, "Well, no, don't enforce that." Or, "Hey, I'll pardon you if you're breaking the law." Then you're in kind of dangerous territory, I think.

• 45:45Speaker 02

  And is that dangerous territory? Because we hear this phrase being thrown around a lot in the media right now. The phrase is constitutional crisis. Is that what you're referring to where we could be heading if there's a scenario in which these rulings by the court are not enforced?

• 46:02Speaker 03

  I think if you have repeated and consequential violation of court orders, then yes, I mean, you have a constitutional crisis when the executive branch, as it is at this moment anyway, is claiming the right to control the spending power. And Congress, to whom that power is given in the Constitution, is refusing to defend its own power, is actually saying, ah, well, this is great. Go for it. We like the substance of what you're doing. You know, there is a way, of course, for President Trump or any president to make the kinds of changes that he seems to want to make, you know, even if they're big. And that is pass a bill.

• 46:41Speaker 02

  Are we beyond checks and balances at this point? Or is it like kind of coming down to the wire around whether the judicial branch is going to exert that its power or be able to exert its power?

• 46:53Speaker 03

  Well, it's early days. You know, as we speak, you know, we're not very far into the administration. I don't think that Congress has foreclosed its ability to act on these issues. If it were to continue to abdicate its responsibilities in this regard, then yeah, I think we're in trouble. Because the framers, you know, very famously wrote Federalist 51, maybe the best expression of this. They talked about ambition counteracting ambition. They said that, you know, if we had angels running the place, we wouldn't need to worry about checks and balances. If, you know, men were angels, we'd be well off. But we know that people are selfish and petty and will act in their own interest. So we need to channel that institutionally into a system

• 47:38Speaker 03

  where the branches will push back at each other. And that through this contestation, we'll reach some kind of consensus and make good public policy, you know? And if we can't reach agreement, then we'll have gridlock. And that's not awesome, but it's better than pushing forward with policy on a tyrannical basis.

• 47:56Speaker 03

  The idea of the president being the voice of the people would have been very strange to the framers. You know, Congress really was where that voice was. They feared the power of the people coming through Congress to such a degree that they split Congress into two chambers. The legislative vortex, Madison said. So you needed a president that was strong enough to combat legislative tyranny, but one that was also well-checked.

• 48:23Speaker 02

  As we're seeing events unfold this year and in the next few years, and we're consuming news about this stuff, which seems like it's like basically trying to take a sip of water from an open fire hydrant right now of information, what would you recommend that we look for as consumers of news and consumers of national events?

• 48:43Speaker 03

  I do think people should be asking the question, does the president have the power to do what he just said he wants to do? Second question, of course, is to track, you know, is there going to be executive compliance with the courts? Where the executive oversteps, the court steps in, is the executive branch going to comply with those orders? And then thirdly, of course, does come back to Congress, right? What do we see in terms of the reaction? If you're sort of tracking your senator, representative, you know, how are they reacting to these specific claims of power by the president, to the actions which are going to have impact on constituents all over the country? So I don't think it's

• 49:26Speaker 03

  inevitable that Congress will be passive. I do think people who are watching this should encourage their members of Congress to stand up for their branch of government and to represent them, you know, rather than to effectively serve as, you know, handmaidens to the president, if you will. That's not their job. Their job is to stand up for themselves as an independent branch of government. What we're seeing in a way... At the moment is Congress acting as if we were in a parliamentary form of government, where you have a party leader and the legislators of that party follow in pretty near lockstep. That's not our system. That's not how we elected them. It's not what we elected them to do. And if we go that way, the way power is distributed in our system, it's very dangerous

• 50:11Speaker 03

  because you do get very quickly to tyranny.

• 50:14Speaker 02

  And something else that makes for a very different balance of power, DOGE. They haven't been approved by Congress, Department of Governmental Efficiency, led by Elon Musk. How does that change the game? Because suddenly you have a, something that's not within the jurisdiction of, doesn't seem like, I don't know what it falls into. Who was in charge of DOGE ultimately making calls, actually exerting power over the governmental system?

• 50:42Speaker 03

  So DOGE was created, it's not a department. It's created, sort of merged into the executive office of the president. Mr. Musk is what's called a special government employee, which has some limitations and also some requirements for ethics laws to be followed. And, you know, what has happened there, though, is the sort of spreading of teams from DOGE out into different agencies. They've apparently, you know, begun to access data, some of it apparently personal data, corporate data, and to shut down grants, things that had been, you know, approved already. So there's a lot of sort of intervention, again, in the spending process.

• 51:26Speaker 03

  Things that have been appropriated, things that have even been contractually obligated, that are now getting sort of shut down, almost by brute force. President Trump so far seems to support this. You know, he issued another executive order expanding DOGE's mandate from being one about information technology, which was the original executive order, into being one that apparently gives it power to approve hiring in the federal government, including with regards to civil servants. Now, it's not clear that the president has the power to do that, and certainly not to delegate it to someone who's not even a government employee full-time.

• 52:06Speaker 03

  But we don't have any sense of transparency, or that's another overlay of concern above the more structural concern that the executive branch doesn't have the authority to shut down these agencies by fiat in the first place.

• 52:21Rund Abdelfatah?

  So, okay, thinking about everything we've been talking about, right? And, um, 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. Uh, it's making me wonder, honestly, if we're headed towards the framers' worst nightmare. Like, are we headed towards dictatorship in some form?

• 52:57Speaker 03

  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's 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, you know, 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 of you 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.

• 53:38Speaker 03

  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 have 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.

• 54:23Speaker 03

  And unless somebody pushes back on me, yeah, I'm going to keep pushing myself.

• 54:36Rund Abdelfatah?

  Thank you to Andy Rudelevich, author of the books By Executive Order and The New Imperial Presidency. He spoke to us back in 2020, when we first put out this episode, and again in 2025. And that's it for this week's show. I'm Rundar Fattah.

• 54:53Speaker 02

  I'm Ramtin Arablouei, and you've been listening to Throughline from NPR.

• 54:58Rund Abdelfatah?

  This episode was produced by me.

• 55:00Speaker 02

  And me and. Jamie York. Lawrence Wu.

• 55:03Rund Abdelfatah?

  Laine Kaplan-Levinson.

• 55:05Speaker 16

  Julie Kane. Kia Miyaka-Naties. Nidjri Aitken. Anya Steinberg. Casey Minor.

• 55:11Rund Abdelfatah?

  Christina Kim.

• 55:12Speaker 22

  Devon Katayama.

• 55:13Rund Abdelfatah?

  Irene Noguchi. Fact checking for this episode was done by Kevin Vogel.

• 55:18Speaker 02

  Thanks to Alex Curly and Steve Tyson for their voiceover work. Also, thanks to Anya Grunman, Tony Cavan, Nadia Lancy, Colin Campbell, and Edith Chapin. Gillimoon mixed this episode.

• 55:31Rund Abdelfatah?

  Our music was composed by Ramtin and his band, Drop Electric, which includes. Anya Misani.

• 55:38Speaker 31

  Naveed Marvi. Sho Fujiwara.

• 55:41Speaker 02

  If you have an idea or like something on the show, please write us at [email protected].

• 55:47Rund Abdelfatah?

  Thanks for listening.

• 55:56Speaker 10

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