There exists various theories that attempt to catalogue how the executive exercises its powers. However, the predominant two dealt in this work are constitutional theory and the modern theory on the presidency. While both model acknowledges the presidency as a constitutionally set out office, they differ in the powers of the office holder. Constitutional theorist view Article II of the constitutional as the exclusive source of presidential powers of the presidency. Modernists on the other hand, posit that the head of the executive as any powers that are not judicial or legislative. Such a difference in roles account for their differing approaches to how the office of the chief executive of the nation has expanded and is limited today.
The constitutional theory of the presidency envisages the president as an agent for implementing the laws set out by the Congress. Powers and function of the president have to be expressly set out in the law, either by Congress or the constitutional. On the other hand, the modern theory on presidency views the President as an agent whose powers are expressly set out by law and those implied from the law. As such, the difference in the theories is in the interpretation of Article II that delineates the powers and responsibility of the President.
While Congress remains inactive, public opinion on issues tends to become more vocal as various interested groups push their agendas. Public perception of the presidency as the office politically responsible for political affairs add pressure on the presidency to act. In more and more scenarios, the use of executive declaration become the only way out of the issue. These declarations have the effect of undercutting the legislature while promoting the executive. Modernist argue that as such, the expansion of the presidency is due to the failures of the other arms of the government.
Previous action of presidents have also promoted the adoption of an expansionist office. The creation of presidential precedents has had a slippery slope effect. Current president points to the action of their predecessors to validate their actions. In precedents, Lincoln’s action to suspend of habeas corpus has been used as a classical example to reiterate the unique powers vested in the presidency in emergencies. While failure to act does not represent an expansion of presidential powers, any action has the effect of expanding it. Any unique and new exercise of power by the president, therefore, represents an expansion of existing powers.
The most fundamental legal reason for the expansion of the presidential powers is the constitution. While constitutional theorist views it as the means for limiting presidential tyranny, the modern president is in no way curtailed by the constitution. While the judiciary and the legislature have their functions clearly spelt out in Article I and III, this is not the case for the presidency. Article II only bestows upon the presidency open-ended powers. As the head of the executive, the president is expected to ensure the faithful execution of laws. When executing laws, the extent of the scope of powers to be used is not determined, leaving the presidency free to expand to new avenues.
Without clear limits on what amounts to executive powers, the inherent power theory is used to advance any new use of power by the president. Arguing that the has some original powers, not in the constitution, the inherent power theory advocates prerogative presidential powers. With no clear limits, it becomes difficult to determine lawful and unlawful expansion. The presidency can, therefore, claim any power that is not judicial or legislative.
Constitutionalist see the expansion of the presidency from two dimension. The progressive elements view restriction imposed on the president as obstacles to effective governance. As such, constitutional limitations are the only fetters to expansion of presidential powers. In expanding, the presidency either is granted the mandate by the Congress or leave by the court. Congressionally mandated expansion occurs where Congress enacts laws that increase the ambit of the executive. As more and more functions are imposed on the executive, the presidency acquires greater control over government affairs resulting in more power.
The granting of more powers on the executive branch is as a result of an increase of delegation of legislative and judicial powers. The presidency as the appointing authority of the office holders gains more power over the other two arms of the government. Any limiting of presidential powers by congress is ultimately bound to fail due to increased role of the executive. Appointment powers alone vested in the president ensure that as the executive branch grows, the proportional powers of the presidency also grows.
Courts have also played a role in the growth of the presidency due to self-imposed limitations. The limitation on justiciability of presidential actions means very few actions of the president are reviewed by the courts. Where the courts refuse to overturn executive action they inadvertently sanction such acts. The lack of review leaves the Department of Justice and in some cases, the Office of Legal Counsel as the only fetters to presidential actions. Since both offices are under the presidential appointees, they are more susceptible to control by the president.
While both theories go a long way to account for the growth of presidential powers, it is the constitutional theorist that explain best the limits on these powers. Constitutional restrainists view the constitutional as the ultimate control of the presidency. While the constitution may be vague on executive powers, it clearly defines judicial and legislative powers. By setting legislative and judicial powers on other organs of state, the constitution denies the president their use. The president, as such, cannot claim any powers exercised by any other arm.
Even where Congress purports to grant legislative powers on the executive such powers is greatly fettered. Where delegated powers are not well fettered, the judiciary strikes down the grant of power until legislature can put more restrictions. These restrictions ensure that the executive does not undercut the other arms of the government.
The impact of mass media and public opinion is another limitation to the presidency. The modern theory attributes the growth of presidential powers to the increased importance of the electorate views. Presidents could take action contrary to the legislative wishes by claiming that the electorate had given it a mandate to do so. Since the president is the only politician voted by the whole nation, such an argument rides on the perceived universality of the presidential mandate. While the electorate could be argued to expand the powers, it can also be a limiting factor.
Desire for having high ratings pushes the presidency to act in line with the public opinion. Any action undertaken has to be in such a manner that the president does not run afoul of public goodwill. Re-election agendas are also primary on the president’s mind as any action can easily be turned to be a campaign issue. Therefore, whether or not the president has the power to take a given action, public opinion influences the manner and timing of the action.
The constitutional limit on the presidency terms also acts as another check against the expansion of presidential powers. Judges and legislators may serve until retirement while the executive is limited to two terms. Such a short fleeting moment ensures that any excesses of a presidency are easily curtailed when individuals exit office. The successors have to be wary of the electorate voting them out within one term or impeachment from congress. Congress can also limit the expansion of presidential powers through fiscal measures. While the creation of public offices may be undertaken through executive prerogatives (executive orders), an organ so created may be deprived of funds by the congress.
The acceptance by both theories that the only true restriction on the presidency is the constitution only goes further to highlight their differences. The modernist view constitutional limitation as hurdles that are there to be conquered for increased primacy of the presidency. On the other side, constitutionalist view the limitation as essential checks to good governance. In both the rise of the presidency is predicated on the fall of the legislature. And the only true fetters to presidential supremacy seems to be statutory enactment and constitutional interpretations.
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