The Presidency: Facing Constitutional Crossroads

The Presidency

Miller Center Studies on the Presidency

Marc J. Selverstone, Editor

The Presidency

Facing Constitutional Crossroads

Edited by Michael Nelson and Barbara A. Perry

University of Virginia Press

Charlottesville and London

University of Virginia Press

© 2021 by the Rector and Visitors of the University of Virginia, Miller Center

Crossroads in Vice-Presidential History © 2021 by Joel K. Goldstein

All rights reserved

Printed in the United States of America on acid-free paper

First published 2021

9 8 7 6 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data

Names: Nelson, Michael, editor. | Perry, Barbara A., editor.

Title: The presidency : facing constitutional crossroads / edited by Michael Nelson and Barbara A. Perry.

Description: Charlottesville : University of Virginia Press, [2021] | Series: Miller Center studies on the presidency | Includes bibliographical references and index.

Identifiers: LCCN 2020051264 (print) | LCCN 2020051265 (ebook) | ISBN 9780813946054 (hardcover) | ISBN 9780813946177 (paperback) | ISBN 9780813946061 (ebook)

Subjects: LCSH: Presidents—United States. | Executive power—United States. | Constitutional law—United States.

Classification: LCC JK516 .P6395 2021 (print) | LCC JK516 (ebook) | DDC 342.73/062—dc23

LC record available at https://lccn.loc.gov/2020051264

LC ebook record available at https://lccn.loc.gov/2020051265

Cover art: Shutterstock/ivn3da

Contents

Acknowledgments

Presidential Crossroads

Michael Nelson

The Living Presidency: Always at a Crossroads

Saikrishna Bangalore Prakash

Crossroads of the (C)onstitutional Presidency: How Ten Extraconstitutional Landmarks Shaped the Office

Michael Nelson

On Being Unpresidential: The Trumpian Moment in Historical Perspective

Richard J. Ellis

The People, the President, and the Congress at a Crossroads: Can We Turn Back from Gridlock?

Jennifer L. Lawless and Sean M. Theriault

The Crossroads of Impeachment: The Threat of Removal and the Separation of Powers

Andrew Rudalevige

American Regicide: Postwar Presidents and the Bitter Politics of Returning to Normalcy

Russell L. Riley

The Personal Presidency at a Constitutional Crossroads

Barbara A. Perry and Stefanie Georgakis Abbott

Civil-Military Relations: Crossroads and Cross-Currents

Bradley R. DeWees

Crossroads in Vice-Presidential History

Joel K. Goldstein

Presidents, Refoundings, and the Living Constitution

Sidney M. Milkis

Contributors

Index

Acknowledgments

Early in Bill Antholis’s tenure as director and CEO of the University of Virginia’s Miller Center, he encouraged its Presidential Studies unit to embark on a multi-year endeavor to study the American presidency. We are grateful to him for his foresight, inspiration, and support; and to Professors Sid Milkis, Russell Riley, Marc Selverstone, Guian McKee, and Melody Barnes for, along with this book’s editors, planning and executing the lecture series that inspired this book. We also thank the scholars beyond the Miller Center whose chapters appear in this book and whose names appear in the table of contents.

Bill encouraged the chair and vice-chair of the Governing Council at that time, Alice Handy and Steve Burns, to support our research, forums, lectures, and writing. They and the board never wavered in supporting our work. The late journalist Jim Lehrer, who served as a valued member of the Miller Center Governing Council until his passing in 2020, always pressed us to move ever onward as we studied the institution about which he cared deeply.

Contributions to support the Presidential Studies research agenda also came from Alison Cryor DiNardo and Robert DiNardo, Margaret Hart, and the Brinson Foundation, for which we are most appreciative. 

We could not have completed this book without the unstinting assistance of the Miller Center’s staff: Associate Director of Presidential Studies Stefanie Georgakis Abbott, Faculty and Program Coordinator Alfred Reaves IV, Chief Operating Officer Meghan Murray, Director of Administration and Finance Andrew Chancy, Procurement Specialist Nancy Dean, Librarian and Managing Editor of American President Sheila Blackford, Research Director for Public and Policy Programs Cristina Lopez-Gottardi Chao, Director of Communications and Managing Editor Howard Witt, and Director of Information Technology Michael Greco.

We are equally grateful to the University of Virginia Press’s Director Suzanne Morse Moomaw, Editor of History and Social Sciences Nadine Zimmerli, Senior Project Editor Morgan Myers, Marketing Manager Emma Donovan, and Publicity and Social Media Director Emily Grandstaff. All of them embraced this book’s concept enthusiastically and guided its production to successful completion. Kate Mertes compiled a comprehensive index that will direct readers to the many topics addressed in this compendium.

The Presidency

Presidential Crossroads

Michael Nelson

The traveler arrives at an intersection where roads cross and must decide which one to take and which direction to go: right, left, forward, or even back. Whatever the decision, more crossroads and further choices about which way to proceed await.

Not a perfect metaphor for what Americans presidents have done when arriving at historical junctures, but perhaps a useful one nonetheless. In reality, centuries—233 years and counting since the Constitutional Convention of 1787—rather than miles measure the journey. The travelers—forty-five presidents as of 2020 but only one at a time—confront crossroads in the form of circumstances that permit but do not require changes in direction. The map, an essential guide for the journey but unclear or incomplete in places, is analogous to the Constitution. And, as any traveler knows, changing and often hard-to-anticipate conditions—whether a road-blocking wreck that impedes the journey or a new lane on the highway that quickens it—inevitably occur along the way. Altered circumstances in the economy, the social fabric, the international arena, and other contextual elements similarly create the obstacles and opportunities that confront presidents.

Under the aegis of the University of Virginia’s Miller Center, The Presidency: Facing Constitutional Crossroads brings together a dozen presidential scholars whose charge was to go both deep and wide in their consideration of the office—deep in the sense of penetrating scholarship and wide in the sense of broad substantive and historical coverage. Their essays were written during the presidency of Donald Trump, a time when issues—some longstanding, some new—relating to the constitutional presidency stood out in especially sharp relief. Bookshelves are filled with works narrowly focused on Trump. This book is designed to provide the sort of historical and constitutional coverage of the office that can help us put the Trump presidency—and those of his successors—into proper context.

In the next essay, legal scholar Saikrishna Bangalore Prakash describes the presidency as always at a crossroads, starting with the Constitutional Convention that created the office. Multiple decisions that could have gone any number of ways were made at that gathering to strengthen the executive, including designing it as a unitary office whose occupant is chosen independently of Congress for a fixed, reasonably long term. Although the Framers also included multiple checks on the president, Prakash observes that over time the acquisition of a parallel war power, the evasion of limits on the president’s direction of foreign affairs, and the assumption of lawmaking authority all bespeak a willingness to alter the Constitution through practice. Structurally, the hundreds of members who make up Congress and the hundreds of judges who constitute the federal courts have been fractured by their sheer multiplicity, hobbled by internal disagreements in confrontations with the president, whose will and voice are undivided. Prakash concludes by offering five fixes designed to revive Congress’s institutional capacity to resist presidential encroachments.

Neither Prakash’s analysis of the living presidency nor his proposed remedies involve formal amendments to the Constitution, which require hard-to-obtain supermajorities in Congress and the states that are nearly impossible to achieve on controversial matters. Starting with the Twelfth Amendment in 1804, only four amendments concerning the presidency have been added to the document. The Twelfth charged electors in presidential elections to indicate separately whom they support for president and whom for vice president, revising the original constitutional mandate to vote for two candidates for president with the runner-up becoming vice president. The Twentieth Amendment, added in 1933, moved the starting date of the president’s term from March 4 to January 20, reducing the length of the transition from election to inauguration. The Twenty-second Amendment (1951) codified the tradition of limiting presidents to two terms after the single instance of the custom’s violation, which occurred when voters elected Franklin D. Roosevelt to a third and a fourth term in the unusual wartime circumstances of the early and mid-1940s. The Twenty-fifth Amendment (1967) filled a gap in the original Constitution by providing processes through which issues of presidential disability could be addressed and vacancies in the vice presidency could be filled.

As political scientist Michael Nelson shows in his essay, the most substantive changes in the presidency have occurred less through amendments to the Constitution than through alterations in what he calls the small-c constitution—that is, the rules—some unwritten, some legislative, and some party-based—that govern presidential conduct. These changes in the office have been animated by changes in norms, customs, and expectations. Nelson describes ten such alterations. One example from the nineteenth century was Andrew Jackson’s decision to veto any bill passed by Congress that he found objectionable, whether he regarded the bill as unconstitutional or not. The capital-C Constitution provides no guidance about when vetoes are appropriate, and previous presidents, notably George Washington, regarded unconstitutionality as the only defensible reason for a veto. Jackson’s addition to the small-c constitution was validated when he was reelected by the voters in 1832 after he vetoed a bill to renew the charter of the Bank of the United States. His interpretation has governed the conduct of presidents ever since. Similarly, in the twentieth century, Theodore Roosevelt abandoned the norm of presidents eschewing direct public appeals as a device for rousing support for their legislative agenda and inaugurated the rhetorical presidency, in which calls for backing by the American people are both an accepted and an expected part of the job. Roosevelt in effect added an element to the small-c constitution that was confirmed through its adoption by subsequent presidents and its acceptance by the public.

Norms of the kind that Nelson assigns to the small-c constitution animate political scientist Richard J. Ellis’s discussion of what it means for a president to be presidential—that is, to meet people’s expectations of how presidents should conduct themselves in office. Starting with Thomas Jefferson, Ellis notes, several of the great presidents have had to fend off charges that they were behaving in ways that were unpresidential, including Jackson, Abraham Lincoln, and TR. That said, not all who faced such charges were great, notably Andrew Johnson. The crossroads to which these norm-challenging presidents brought the country in the form of new styles of conduct has sometimes led to enduring transformation in the office and sometimes led to backlash, thereby reinforcing existing patterns of behavior.

Will Donald Trump’s braggadocious style of credit-claiming and his playground-style taunting of political opponents be transformative or will it trigger a backlash? Trump boasted in a 2017 tweet that his style is not Presidential—it’s MODERN DAY PRESIDENTIAL. Nothing that occurred afterward during his presidency indicated any change of mind. In determining whether the Trump model will endure, Ellis concludes, much may depend on whether Trump’s abusive communications style is seen by other political elites as effective and thus worth emulating or counterproductive if not disqualifying.

For all Trump’s norm-disrupting conduct in public, political scientists Jennifer L. Lawless and Sean M. Theriault show in their essay that not everything changed in Washington and the country after he took office. At the crossroads of Trump’s remarkable election in 2016 as the least conventionally credentialed candidate in history, many wondered whether his presidency would mitigate, sustain, or exacerbate polarization. Using measures of voting in Congress and elections, Lawless and Theriault conclude that Trump didn’t trump party polarization in either the electorate or the Congress. But from both a behavioral and an institutional perspective, he didn’t make things worse either. The polarization among voters and elites that has driven Republicans and Democrats farther apart since the early 1970s did not abate after Trump was elected, but neither did it accelerate. Their essay serves as a reminder that not every crossroads leads to a change in direction. Sometimes the journey continues along its previous course.

What of presidential impeachment, the subject of the essay by political scientist Andrew Rudalevige? Once again, the Constitutional Convention stood at a crossroads as it decided whether impeachment and removal should be relatively easy (on broad grounds of maladministration, for example) or hard (only for treason or bribery) as well as whether it should be a judicial process lodged in the Supreme Court or a political process entrusted to the elected houses of Congress. The Framers ultimately decided to add high crimes and misdemeanors to treason and bribery as appropriate grounds for impeachment and removal while assigning impeachment to a simple majority of the House of Representatives and removal to a two-thirds majority of the Senate.

As Rudalevige shows, the Framers did not intend to equate high crimes and misdemeanors with violations of statutory law; instead, they meant impeachment and removal to be the remedy for serious abuses of the constitutional authority of the office, whether codified in statutes or not. But by the time of the first presidential impeachment of Andrew Johnson in 1868, that understanding had been lost. The House’s real reason for impeaching Johnson was his egregious conduct as president, but House members felt that they needed to focus their official charges on his alleged violation of the Tenure of Office Act and the Army Appropriation Act. Similarly, the impeachments of Richard Nixon in 1974 (aborted by his resignation) and Bill Clinton in 1998–99 cited specific statutes that each allegedly violated.

In this regard, Trump’s impeachment in 2019–20 may mark a turning back at a constitutional crossroads. Neither of the impeachment articles brought against the president claimed that he violated a particular law. Instead, Trump was charged with abuse of power and obstruction of Congress. This approach represented a reclaiming of what the Framers had in mind in 1787 more than a continuation of congressional practice in the Johnson, Nixon, and Clinton cases. Even so, it is worth noting that not a single impeachment by the House has resulted in the removal of a president from office by the Senate. This may leave the process immobilized at a crossroads, with neither history nor the Constitution providing clear guidance about which direction to turn when severe controversies arise over presidential conduct.

War is an unsurprising constitutional crossroads for the presidency, with wartime urgency often providing unusual latitude for presidential action. As political scientist Russell L. Riley notes in his essay, At these critical crossroads in the nation’s past, Americans have chosen to depart from the usual path of checks-and-balances in favor of the more efficacious route of presidential rule. Less remarked has been what Riley calls a second crossroads: the aftermath of war, when the overwhelming impulse . . . has been to return as quickly as possible to the kinds of governing arrangements the nation abandoned to meet the threat. After the Civil War, World War I, World War II, and the Cold War, Riley finds, a version of nonviolent American regicide occurred that forced the presidency to retreat along the path that led it to each crossroads. Famously, for example, the Supreme Court ruled in the 1997 case of Clinton v. Jones that a lawsuit against President Clinton could proceed on the grounds that he had plenty of free time to deal with it. This, Riley writes, was quintessentially a post–Cold War decision, a ruling hard to imagine during the period of conflict with the Soviet Empire.

Crossroads in history, like crossroads on the map, present themselves to the presidential traveler, requiring that decisions must be made about which way to proceed. The ongoing rise of new forms of mass communication—the telegraph, motion pictures, radio, broadcast television, cable news, and most recently various modes of online and social media—has repeatedly forced presidents to adapt by changing course. Political scientists Barbara A. Perry and Stefanie Georgakis Abbott describe these adaptations, even offering leadership lessons on how to communicate with the people in an age when presidents seem omnipresent to the public. With an eye toward recent populist trends in Europe, however, Perry and Abbott warn that persuasive communications are not always benign. The personal presidency may all too easily devolve into the sort of demagoguery the Framers feared.

In a similar vein, the growth of the military in size, potency, and complexity marks the crossroads the president now encounters as commander-in-chief. Military operations have grown increasingly complex over time, observes public policy scholar and Air Force officer Bradley R. DeWees, from groups of soldiers marching in unison to networks of soldiers, sailors, airmen, and marines operating across land, sea, air, space, and cyberspace. In what DeWees describes as the permanent garrison state, three fundamental connections lie at the crossroads of civil-military relations: between presidents and generals, business and the military, and civilians and soldiers. At the president-general level, he worries, the civil-military balance is shifting in favor of the military, which is not necessarily good for security. That said, despite its having all the firepower, there is no real possibility of a coup in the United States because its military so values deference to democratically elected civilian leaders.

Historically, presidents seldom felt any need to give much thought to the vice presidency. But as with the rise of new forms of media and a permanent military establishment, altered circumstances created crossroads concerning the office. Although, as legal scholar Joel K. Goldstein records, institutional change typically, and understandably, lags behind the development of the conditions which give rise to the change. . . . The related perils of the Cold War and the atomic age gave greater importance to the presidency and focused attention on the identity and preparation of the presidential successor. In time, this realization manifested itself in President Jimmy Carter’s creation, in collaboration with Vice President Walter F. Mondale, of what Goldstein calls the White House vice presidency, centered in the executive branch and transformed from a previously marginal office into one of genuine influence and significance.

In the volume’s concluding essay, political scientist Sidney M. Milkis takes account of recent controversies concerning how Trump’s two predecessors—George W. Bush and Barack Obama—both exercised administrative power aggressively, setting important precedents that have enabled Trump’s more provocative unilateral actions. Unchecked assertions of presidential power arguably constitute the constitutional crossroads at which the office and the country now stand. For guidance in this situation, Milkis turns to previous crossroads moments that resulted in presidential refoundings by Jefferson, Jackson, Lincoln, and Franklin Roosevelt. At their most successful, these refoundings not only invoked fundamental principles and constitutional norms dating back to the Declaration of Independence and the Constitutional Convention but also adapted them to changing times in conjunction with a political party. The question Milkis leaves us with is whether the gradual migration of power from parties to the executive has made such refoundings impossible. FDR’s legacy—the administrative state, Milkis laments, may have made Roosevelt the last refounding president.

The many reasons for concern about the American future notwithstanding, more than two-and-a-quarter centuries of constitutional crossroads faced and navigated by nearly four dozen presidents offer a reasonable basis for optimism about the future. The system the Framers created has endured despite crises as grave as civil war and economic collapse. The explanation for this endurance, however, has nothing to do with complacency. It has everything to do with vigilance.

The Living Presidency

Always at a Crossroads

Saikrishna Bangalore Prakash

Is the living, imperial presidency a bug or a feature of the modern Constitution? There is a perennial tendency to lament it as a bug, especially by those who regard an incumbent as a usurping, power-hungry despot. And for a generation or so, every president has been so regarded by some portion of the electorate. In any event, whether lauded or condemned, our living presidency seems ever at a crossroads, and occupants of the Oval Office typically take the path toward greater executive authority.

The presidency itself arose from the most consequential of crossroads, the Philadelphia Constitutional Convention. Although James Madison is often deemed the father of the Constitution, he was a perplexed uncle when it came to Article II. On the eve of the convention, Madison had apparently given little thought to the executive. In Vices of the Political System of the United States, he listed twelve defects of the Articles of Confederation.¹ While noting the lack of sanctions for breaking national laws, he ignored the absence of a vigorous, independent national executive to enforce the laws. His April 1787 letter to George Washington, written a month before the Philadelphia Convention, sheds light on why: I have scarcely ventured as yet to form my own opinion either of the manner in which [the national executive] ought to be constituted or of the authorities with which it ought to be cloathed.² This was a bit of an overstatement, for, as a reader of Baron de Montesquieu’s Spirit of the Laws, he would have known that an executive does what the label implies—it executes the law. In the eighteenth century, the word executive had a core meaning even if its margins were contested. For Madison to speak of an executive was to signal that he desired an entity tasked with implementing national laws. Yet despite his reputation for preparation, Madison was unsure about which additional authorities should be vested in the executive.

Some of Madison’s convention allies were far surer about the ideal features of the executive. Led by Pennsylvanians Gouverneur Morris and James Wilson, a group of delegates successfully willed into existence an independent and powerful executive. In the end, not all delegates endorsed its final contours. Three—Edmund Randolph, George Mason, and Luther Martin—pointedly criticized the formidable executive that emerged from the convention’s proceedings.

They had ample cause. Over the course of the convention, the executive crystallized into an American version of European monarchies, one whose resemblance to the British kingship could not be gainsaid. This republican, limited monarchy was hardly foreordained when the delegates first met in May 1787. Rather, the executive acquired power as the convention unfolded, a pattern of accretion that would become familiar to later generations.

At almost every junction at the convention, the state delegations tilted toward an energetic executive. The delegates settled on a single executive and rejected a triumvirate, presumably because they agreed with those who warned of violent dissensions and the diffusion of responsibility. After tussling for months over the vexatious question of selection, they settled on special presidential electors with a House backstop when no candidate received an electoral majority. This selection process, coupled with a guaranteed salary, a lengthy tenure, and no term limit, yielded an independent executive unbeholden to Congress.

In fact, the new executive—armed with a host of powers, some specifically enumerated and others part of the general grant of executive power—would serve as a counterweight to Congress. The executive would wield a check on legislation in the form of the limited veto, the power of which has grown as presidential confidence waxed over the centuries. Moreover, the president also would have power to enforce the law, the ability to pardon all federal offenses, an interstitial authority over foreign affairs, command of the military, and direction of the executive bureaucracy. With respect to making appointments and treaties, the president would need the Senate’s consent.

Why did the powers of the executive accrete over the course of the convention? Credit (or blame) George Washington and the determined delegates who relentlessly pressed for a robust executive. Washington’s sterling character caused those fearful of executive power to let down their guards. When delegates considered a unitary executive, they thought of Washington and were cheered by the prospect that he would be the first president. Had he not proven that power could be entrusted to him by renouncing it at the end of the Revolution? Those favoring a robust executive rode this Washingtonian tailwind and stubbornly persisted in their view that under existing frameworks, including the state constitutions and the Articles of Confederation, Americans had gone too far in hobbling the executive. The reformers insisted that this mistake be avoided at all costs. Unlike the weak, plural executives that often had been the norm, the new Constitution prized executive vigor and unity.

When Americans received the proposed Constitution, discerning minds peered behind the document’s trappings to see that the president would be far more powerful than contemporaneous state executives, whom James Madison had denigrated as cyphers.³ In the words of Edmund Randolph, in reading the Constitution, the people would behold a little monarch, imbued with more power than many of the crowned monarchies in Europe.⁴ Thomas Jefferson said the office was a bad edition of a Polish King—hardly words of flattery.⁵ His aide said the Constitution would create a mixed monarchy, for despite the humble title of President, the office will have greater powers than several monarchs have.⁶ Prominent Anti-federalists, like Patrick Henry and George Mason, carped that the presidency squints toward monarchy⁷ and that the Constitution would establish an elective monarchy.⁸ Some supporters of a strong executive rejoiced. For instance, John Adams was delighted that the Constitution had created a monarchical republic.⁹ Even foreigners saw the resemblance, with the Dutch stadtholder saying that Americans had given themselves a king, under the title of President.¹⁰

The complaints generally flowed in one direction. We the People ratified the Constitution in the teeth of innumerable claims that the presidency would have too much authority and be too monarchical. In contrast, precious few complained that the office would be impotent or lethargic. The Constitution thus marked a sea change from 1776, when the signers of the Declaration indicted George III for kingly excess in authority. In the Constitution, the convention constructed something scarcely different from what the nation had previously forsaken. America was to have, in many respects, a national government, with a mighty executive at its head.

The monarchical cast of the original presidency is utterly lost on modern readers of the Constitution. For many, the claim might seem downright bizarre. Article II never mentions a crown or throne, and specifically bars the United States from granting titles of nobility. Our executive is elective, while monarchies are typically hereditary. America’s executive is clearly limited, whereas monarchy brings to mind despotism—the arbitrary rule of one. Finally, America is a grand republic, one with a guarantee of a republican form of government. Whatever else it is—it cannot be a monarchy.

But the Founders were more sophisticated when it came to monarchy. That generation knew that monarchs could be elected because many storied monarchies were, including the pope and the Holy Roman emperor. They were also well aware that some governments—so-called mixed monarchies—had elements of both monarchy and republic. They could look behind the forms to see the substance. For instance, Baron de Montesquieu perceived that for all its regal frills, England was a republic disguised under the form of a monarchy, by which he meant a mixed monarchy.¹¹

Indeed, even as we grudgingly recognize the monarchical nature of the presidency, we must always keep in mind the mixed or limited nature of that monarchy. As powerful as the presidency was constructed to be, it was clearly not meant to be all-powerful. There were plenty of constitutional restraints, some express and others implied.

First, presidents had to execute the laws of Congress, for they could not suspend or dispense with the very statutes they were to faithfully execute. Almost a century before the Constitution’s creation, the English Bill of Rights firmly established that the executive could neither suspend nor dispense laws. Such powers came perilously close to a general authority to legislate.¹² More generally, the English did not suppose that the Crown could (or should) make laws on its own. Instead, the Crown’s checks on lawmaking came from its absolute veto, the power to end a session of Parliament (and thereby terminate all pending legislative activity), and the routine use of influence and inducements to warp the will of legislators. The duty to execute laws made primarily by others and the lack of an independent power to make laws went hand-in-hand and were bedrock features of all Anglo-American executives.

Second and relatedly, presidents had to honor congressional regulation of the army and navy. Military command did not imply authority to start wars or to unilaterally govern and regulate the military. The role of commander-in-chief, an entirely familiar and ordinary military position, merely encompassed command of a particular unit and not autonomy to launch attacks on foreign nations. In fact, both England and America had hundreds of commanders-in-chief, each charged with direction of a particular component of the military and each barred from unilaterally plunging their nations into war. The Constitution merely granted the president the same sort of military command that generals had, except that the president was the general of generals—the commander of all military units. That is why Alexander Hamilton said that the president would merely be the first General and Admiral.¹³ With its express authority to initiate wars (declare war) and to govern and regulate the armed forces, Congress could control the military and its commander-in-chief.¹⁴

Third, presidents required the Senate’s consent to make treaties and long-term appointments, meaning that they could not unilaterally make significant international contracts or permanently fill vacant offices. These were restraints on traditional executive powers and were a nod to those who supposed that a council ought to check the executive on certain vital matters. On these questions, the executive was plural rather than unitary, for the need to secure the Senate’s consent made the chamber partly executive, a point not lost on early readers of the Constitution or on the Senate itself.

Fourth, since chief executives lacked the constitutional authority to generate offices or endow them, they depended upon Congress to create and fund executive offices and departments, including the army and navy. The first Congress created the three early departments—State, War, and Treasury—and supplied the staffing and pay for each. While the departmental names would sometimes change, and the number of departments and agencies has ballooned, Congress has maintained its monopoly over departmental structure and the purse. The power to create and fund the executive branch’s substructure has consistently given Congress leverage over the bureaucracy. Although presidents may generally direct and remove executive officers, Congress generates the laws committed to the care of such officers and may curb their powers and budgets, a useful means of signaling to officers that they should be mindful of congressional preferences.

Fifth, presidents had to honor judicial judgments. At one time, the judicial power was part of the executive, because both executed the law, albeit in different ways. But the English barred their kings from sitting in judgment and protected their most important judges from executive ouster. In this scheme, no one doubted that judges decided who prevailed in cases brought before them. This was true even when the government was a party as plaintiff, prosecutor, or defendant. This understanding of the executive’s relationship to the judiciary carried over to America and its Constitution. Unlike the English kings of old, American presidents could not decide cases. Cases were to be decided by judges, whose judgments the executive was to faithfully execute.

Finally, the Constitution enjoined the president to preserve, protect, and defend the Constitution.¹⁵ This unique oath, coupled with Article V’s amendment process, refutes any notion that presidents may amend the Constitution by other means. Unlike the English Constitution, which changes by practice and by legislative statutes, the American Constitution was meant to be impervious to both. Certainly, the president was not meant to be able to informally amend the Constitution, via practice or otherwise, much less overthrow its writ.

In the early years of the Constitution, a few contentious disputes arose on the peripheries of presidential power. Initially, Madison favored what some might regard as broad readings. In 1789, Representative Madison read the grant of executive power as encompassing an entire class of related powers. Within this category, he argued, was a power to remove executive officers.¹⁶ Madison’s interpretation prevailed. By 1793, writing as Helvidius, Madison reiterated his position about executive power; yet he simultaneously denied that it encompassed any authority over foreign affairs. Fears of the executive were growing, and they likely influenced Madison’s perspective.

The specter of an increasingly regal president loomed, especially during Washington’s second term. Although detractors were often reluctant to attack Washington directly, some carped that the presidency was slowly being monarchized. As Jefferson observed, the early fights over presidential power were in part about what type of government America had and what type it would have in the future: "Where a constitution, like ours, wears a mixed aspect of monarchy and republicanism, it’s [sic] citizens will naturally divide into two classes of sentiment, according as their tone of body or mind, their habits, connections, and callings induce them to wish to strengthen either the monarchical or the republican features