The Presidency: Origins & Powers
The U.S. presidency has changed as an institution since its inception, directly impacting the spherical division of powers as enumerated within the U.S. Constitution. The Framers intended the presidency to be a limited position of power; thus, they divided the national power between three bodies; the Legislative, the Executive, and the Judiciary. George Washington established a point of reference as America’s first president; stewarding his authority by delegating his centralized position of power unto the states and their regional localities. Since Washington, the presidential cabinet has been the “primary advisory body of the president,” (Pfiffner, J., p. 4). James P. Pfiffner writes that “[t]he term presidential power, in contrast to the specification of formal, constitutional powers of the president, connotes the range of authority presidents have asserted, especially as opposed to the powers of Congress,” (Pfiffner, J., p. 12). Since its foundation, the actions of the Presidency have impacted the separation of powers as enumerated in the U.S. Constitution; yet the recent acts of the past century have unfavorably transformed the image of the president originally intended by the Founding Fathers.
Institutional Changes
Presidential Branch
One institutional change that has occurred is the conversion of the Executive Branch to the “Presidential Branch,” alongside the expansion of the executive powers, resulting from the addition of federal agencies with executive oversight, (Pfiffner, J., p. 4). The U.S. Capitol notes that “[w]hen the First Congress met in 1789, one of the primary orders of business was the creation of new executive departments to aid the president,” (VisitTheCapitol). Thus, “Congress promptly established three such departments: the Department of Foreign Affairs (now the Department of State), the Department of Treasury, and the Department of War (now the Department of Defense), which was charged with administering the Army,” (VisitTheCapitol). President George Washington wrote in 1780 that "[i]n general I esteem it a good maxim, that the best way to preserve the confidence of the people durably is to promote their true interest;" (Washington, G., p. 211). President Franklin Roosevelt “pushed through Congress his New Deal Legislation that expanded the federal government considerably,” (Pfiffner, J., p. 12). Additionally, Lyndon Johnson's “Great Society set of initiatives of 1964 and 1965;” followed by the Bush Administration’s push to create the Department of Homeland Security (DHS) following the 9/11 attacks, leading to the domestic Surveillance State, (Pfiffner, J., p. 12). The Federal Register records the current number of Executive Agencies has increased to 441, (FederalRegister). While “the original purpose of these offices was to coordinate executive branch policy and provide expert advice to the president. But as the offices became institutionalized, presidents came to depend on them as tools to control the expanding executive branch, (Pfiffner, J., p. 4). Thus, the executive branch has grown to become the acclaimed “presidential branch,” including “the White House Office and the Executive Office to the President (EOP);” thereby presidents gain an increased opportunity to set the national agenda in their own interest, (Pfiffner, J., p. 4).
Unilateral Tools. American presidents “have at their disposal a range of unilateral tools that can be used to accomplish their policy goals. Geroge Washington wrote in 1795 that "I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good, than it is with my personal feelings, to mingle in the operations of government every degree of moderation and tenderness which the national justice, dignity, and safety, may permit," (Washington, G., 639).
Among these are executive orders, executive agreements, memoranda, proclamations, and reorganization plans,” (Pfiffner, J., p. 7). Ernest Gellhorn and Ronald M. Levin add that “[l]ike the Congress, the President has a variety of powers and techniques he can use to oversee and influence the operations of administrative agencies,” (Gellhorn & Levin, p. 50). Thus, “[t]he Appointments Clause of the Constitution (Art. II, § 2, cl. 2) contains some fairly specific guidance on the staffing of federal administrative agencies,” (Gellhorn & Levin, pp. 50, 51). But Freytag v. Commissioner, 501 U.S. 868 (1991), set precedent, identified the executive branch’s appointment power’s “scope of limitation” in that “[w]hen an agency hires someone to become a mere ‘employee,’ who will not wield ‘significant authority’ under federal law, his appointment need not comply with the Appointments Law at all, (Gellhorn & Levin, p. 53). This has led subsequent contemporary presidents to exercise their executive powers without Congressional consent. Examples of the seemingly autonomous use of executive powers include President Bush’s establishment of the White House Office of Homeland Security; President Barack Obama’s creation of the White House Office of Urban Affairs; and President Clinton’s proclamation “that set aside about 2 million acres of wilderness in Utah as a national monument,” (Pfiffner, J., p. 7). Therefore, “[e]xcept in the clauses dealing with impeachment, the Constitution does not address the circumstances under which agency personnel may be removed from office,” (Gellhorn & Levin, p. 54). Bureaucracies have utilized this principle to further their own agendas, under the protection of the executive branch. Unfavorably, “[t]he use of unilateral tools of presidential power has increased in recent decades, especially when presidents face a Congress that is unwilling or unable to legislate on certain policy issues,” (Pfiffner, J., p. 7).
Covert Foreign Wars
A second change that has occurred is the imposition of secret foreign proxy wars. George Washington wrote in 1976 that"[t]he Great rule of conduct for us, in regard to foreign Nations is in extending our commercial relations to have with them as little political connection as possible. So far as we have already formed engagements let them be fulfilled, with perfect good faith. Here let us stop," (Washington, G., p. 688). Moreover, that the U.S. government must "[o]bserve good faith and justice towds. all Nations. Cultivate peace and harmony with all," (Washington, G., p. 666). The U.S. Constitution’s Article I Section 8, gives Congress the sole power to declare war. But throughout the 20th century, American presidents have challenged the Constitution’s originalist intent with reinterpretation of their role as commander in chief.
Since World War II—Congress’s last formal declaration of war in 1941—there have been many unofficial wars. On February 25th, 2022, the Chinese Embassy in Russia reported “[a]mong the 248 armed conflicts that occurred in 153 regions across the world from 1945 to 2001, 201 were initiated by the #US, accounting for 81% of the total number,” (X). In America’s first televised war, President Lyndon “Johnson misled the country and secretly escalated the war in Vietnam in 1965,” (Pfiffner, J., p. 13). Nixon, following in his predecessor's footsteps, “continued to pursue the war and resisted congressional efforts to end it. These autonomous actions led congress to create more laws throughout the 1970s “intended to reassert congressional constitutional prerogatives,” (Pfiffner, J., p. 13). The Ford and Carter Administration adhered to these laws; they were ultimately challenged during the Reagan Administration, whereby President Reagan violated laws “during the Iran-Contra affair, when his administration “funneled funds from Iranian payments for arms to the Contras in Nicaragua, which was explicitly forbidden in law,” (Pfiffner, J., p. 13). Two specific presidential actions that have challenged the original intentions of the Founding Fathers include presidential immunity and pardoning powers—both allowing for expansive actions, at the expense of the nation.
Presidential Immunity. The president has also relied on his presidential immunity. In the “earliest days of the republic” during the trial of Aaron Burr, when “Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial,” (Constitution). Nevertheless, “Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold information from disclosure based on executive privilege” (Constitution). This power has led U.S. presidents to act similarly, withholding executive information for disclosure, as they see fit; namely with Nixon's Watergate Scandal and subsequent weaponization of the FBI and CIA by the president and his administration against their political opponents. Thus, "Nixon also confronted Congress on a number of issues, including war powers, control of spending (impoundment of funds), executive privilege . . . Nixon’s assertion of executive powers and his unwillingness to be limited by Congress or even the law resulted in impeachment proceedings followed by his resignation in 1974," (Pfiffner, J., p. 13).
Pardoning Powers. The executive branch “is also given the judicial power of granting pardons” and “can exercise the significant legislative power to veto legislation,” requiring the veto to be “overridden by a two-thirds majority of each house,” (Pfiffner, J., p. 11). This pardoning power has been used by modern presidents to control the justice system, and redeem previous administrations. Presidents “Lincoln and Johnson pardoned anti-Union Southerners after the Civil War; presidents Ford and Carter pardoned draft evaders of the Vietnam era; and President George H. W. Bush pardoned five participants in the Iran-Contra affair,” (Pfiffner, J., p. 11).
Constitutional Intent
Founding Intentions
Originally, “[t]he Framers’ ideas about executive power were heavily influenced by the colonial experience and their familiarity with European history,” (Pfiffner, J., p. 6). Every Framer had arrived from their previous experiences with despotic centralized authority; thus, “the lessons they drew from . . . led them to distrust executive power,” specifically autonomous powers left “unchecked,” (Pfiffner, J., p. 6). Additionally, the “immediate experience with the weak central government under the Articles of Confederation,” led the majority of the Framers to seek a strong union, for national defense and the promote the continuity of domestic currency, (Pfiffner, J., p. 7). Worse, “the ability to make foreign policy was put at risk when Great Britain threatened to negotiate the end of the Revolutionary War with each state independently, rather than with the central government, (Pfiffner, J., p. 7). George Washington wrote in 1783 that "unless the principles of the federal government were properly supported and the powers of the union increased, the honour, dignity, and justice of the nation would be lost forever," (Washington, G., p. 350). Thus, the American government was established to magnify the union, dignity, and honor.
Article II. The Executive Branch’s “Article II of the Constitution is brief and vague when compared with the many enumerated powers granted to Congress in Article I. The presidential article begins: ‘The executive Power shall be vested in a President of the United States of America.’ But it is not clear whether the ‘executive Power’ is a separate grant of power or merely a designation of the president as head of the executive branch,” (Pfiffner, J., p. 10). Therefore, “the Framers designed a system of shared powers within a system that is purposefully biased against change,” (Pfiffner, J., p. 7). The Founders divided the centralized authority of government “[b]ecause of the fear of executive tyranny;” leaving “many states had dominant legislatures and weak executives who were chosen by the legislatures for one-year terms and who were often constrained by an executive council,” (Pfiffner, J., p. 7). Alas, “[t]his led to inefficient state governments that occasionally abused their powers and threatened property rights or inflated the money supply,” (Pfiffner, J., p. 7). But this has not stopped the change that has taken place in the administration. Though the Executive Branch remains limited by the Supremacy of the U.S. Constitution, it has expanded its duties through the expansion of its administrations to include “far-reaching changes in presidential behavior,” (Pfiffner, J., p. 10).
Ethical Considerations
Christian leaders are inherently tasked to preserve God’s image of government. Since its inception, the duty of government has been to invest in the morality of the citizens—as witnessed throughout the Old Testament. Therefore, as Pastor Kris Vallotton of Bethel Church writes, “[g]overnment derives its authority from God Himself because He establishes it. Leaders therefore have responsibility and authority over other people,” (Vallotton, K., p. 139). Christian leaders must be unbiased and impartial, omit their own worldly desires, and strive to commit themselves to seeking God, (2 Chron 19:3). Geroge Washington believed that pluralism was the best pathway to unity; writing, "I have often expressed my sentiment, that every man, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshipping the Deity according to the dictates of his own conscience," (Washington, G., p. 676). Similarly, King Jehoshaphat acted righteously and “brought them back to the LORD, the God of their fathers,” 2 Chronicles 19:4b (ESV). Thus, government is dutied with the obligation to preserve inherent natural moral law. In furtherance of God’s Kingdom, “He appointed judges in the land in all the fortified cities of Judah, city by city,” 2 Chronicles 19:5 (ESV). A Christian leader must delegate responsibility representative to their constituency. Additionally, Jehoshaphat, after distributing his decision-making to regional judges; “said to them, ‘Always think carefully before pronouncing judgment. Remember that you do not judge to please people but to please the LORD. He will be with you when you render the verdict in each case,” (2 Chronicles 19:6; NLT). Now then, let the fear of the LORD be upon you. Be careful what you do, for there is no injustice with the LORD our God, or partiality or taking bribes,’” (2 Chronicles 19:7; ESV).
Christian leaders must act in faith, entrusting parallel branches with concurrent powers and weighted authority. George Washington acted in faith, writing, "[may] God grant that the honest men may acquire an ascendency before irrevocable ruin shall confound the innocent with the guilty," (Washington, G., p. 528)." In Jerusalem, King Jehoshaphat “In Jerusalem, Jehoshaphat appointed some of the Levites and priests and clan leaders in Israel to serve as judges for cases involving the LORD’s regulations and for civil disputes,” (2 Chronicles 19:8; NLT). Jehoshaphat knew that selecting judges would require investing in zealous and responsible stewards of civic representation. Jehoshaphat “charged them: ‘Thus you shall do in the fear of the LORD, in faithfulness, and with your whole heart:” (2 Chronicles 19:9 ESV). King Jehoshaphat’s stewardship of responsibility marks the importance of taking oaths of office for those tasked with the duty, to ensure their actions are not self-righteous. Similarly, any incumbent President ought to exhibit Jehoshaphat-like characteristics. As individuals should aim to live like Jesus, Presidents are to rule like Jehoshaphat. It was the King’s personal relationship with God that guided his kingdom through uncertain times. Jehoshaphat’s obedience to God, and unwillingness to succumb to worldly desires serve as an ethical landmark for modern leaders. God protected the Kingdom of Judah; “[t]he fear of the LORD fell on all the kingdoms of the lands surrounding Judah, so that they did not go to war against Jehoshaphat,” (2 Chronicles 17:10; NIV). Christian leaders must not abandon reverence for God’s supremacy, nor irresponsibly delegate their own obligation that is owed to Christ. They must also acknowledge the different spheres of authority in their decision-making; as government is not the arbiter of law, nor appropriate for every circumstance.
Conclusion
The President must be willing to work with Congress, sharing powers as intended by the Founding Fathers. George Washington, acknowledged that "[i]t is not within the sphere of my duty to make requisitions, without the Authority of Congress," therefore added that "I have transmitted Congress a Copy of this Letter, and have in the most pressing manner requested them to adopt the measure which I have above recommended, or something similar to it," (Washington, G., pp. 246, 247). Incumbent presidents ought to take note of Washington's commitment to working with Congress to determine issues concerning the national agenda. The contemporary ebb and flow of power between Congress and the Executive branch have significantly impacted both domestic law and foreign policy since our nation’s founding; “[a]s the pendulum of power has swung between the president and Congress over the course of two centuries, it swung decisively toward the executive during George W. Bush’s administration after the beginning of the twenty-first century,” (Pfiffner, J., p. 15). The use of presidential powers has resulted in extensive administrative agencies and executive departments, created over the last century. Conversely, “if they are not part of the executive branch, there seems to be no constitutional basis for them to exist at all. Thus, independent agencies are sometimes described as . . . ‘a headless fourth branch’” (Gellhorn & Levin, p. 55). This conceptual "fourth branch" does not adhere to the same limitations invoked by the Founder’s intended separation of powers. While Presidents strive to be virtuous, all bear a propensity to sin; thus the separation of powers must be preserved, and the scope of the executive branch reigned to its original jurisdiction. The Old Testament offers many examples of honorable executive stewardship; as King Solomon advised future Christian leaders, “[t]he wise will inherit honor, but fools get disgrace,” (Proverbs 3:35; ESV); contemporary presidents should strive to represent the people, improve the nation, and leave a righteous legacy.
Bibliography
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ESV. Proverbs 3:35
ESV. 2 Chronicles 19:3–10
FederalRegister. (Accessed on January 15th, 2024). Federal Register. Agencies. https://www.federalregister.gov/agencies.
Gellhorn, E.; Levin, R. (1997). Administrative Law and Process: Fifth Edition. West Publishing Company: St. Paul, MN.
Pfiffner, J., (2018). The Modern Presidency: Wadsworth Cengage Learning. Cengage Publishing.
Vallotton, Kris. (2010, 2016). Heavy Rain: How to Flood Your World with God's Transforming Power. Baker Publishing Group. Kindle Edition.
VisitTheCapitol. (Accessed on January 15th, 2025). An Act to Establish the Executive Department to be Denominated the Department of War, June 27, 1789, with Senate Annotations. U.S. Capitol. Visitor Center. https://www.visitthecapitol.gov/artifact/act-establish-executive-department-be-denominated-department-war-june-27-1789-senate
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