Presidential Power

Speaker Spotlights Executive Authority

The Robert H. Jackson Center held its annual Jackson Day program Feb. 12. This year's speaker was Brian Harward, Allegheny College's Robert G. Seddig Chair in Political Science, and his talk focused on presidential power and how crisis has shaped the power of the president. P-J file photo by Dennis Phillips

WARREN, Pa. — In the wake of the country’s third-ever impeachment trial, the Robert H. Jackson Center’s 2020 Jackson Day program couldn’t have been more appropriately timed.

The event is held annually to correspond with the birthday of Warren County’s most famous son, Jackson, who served as a U.S. Supreme Court justice and U.S. chief prosecutor of Nazi war criminals at the Nuremberg, and was born on a farmstead in Spring Creek in 1892.

This year’s speaker was Brian Harward, Allegheny College’s Robert G. Seddig Chair in Political Science, and his talk focused on presidential power and how crisis has shaped the power of the president.

“Presidential power is not a fixed set of finite, clearly expressed or enumerated powers,” he said. “Rather, the source of presidential power is ambiguity.”

He asserted that the end result of that ambiguity has been a “slow but steady shift of the institutional balance of power…. Often presidents do this through executive orders.”

Robert H. Jackson's portrait from his time as attorney general now hangs in Attorney General William Barr's conference room. Jackson served as a U.S. Supreme Court justice and U.S. chief prosecutor of Nazi war criminals at the Nuremberg, and was born on a farmstead in Spring Creek, Pa., in 1892. Photo from justice.gov

President Trump’s 140 executive orders, Harward explained, are “more than most any others but not exceptionally so.

“The end result is that presidents can and do make law without the explicit (action) of Congress.”

Crisis — world wars, civil war, national security issues — and the “rise in candidate-centered campaigns” encourages presidents to push the envelope, leaving the rest of the country in the lurch.

“We’re reminded of the dangers of imperial presidency,” he said. “The goal is to identify a distinction between policy-level disputes and regime-level threats.”

Harward highlighted a couple of Supreme Court cases where Jackson spoke on presidential power.

One is Youngstown Sheet & Tube Co. vs. Sawyer where the Truman administration sought to nationalize the steel mills in the face of a strike threat during the Korean War.

Harward offered part of Jackson’s opinion: “No appraisal of the president’s necessities is realistic which overlooks that he heads a political system as well as a legal system. Party loyalties and interests, sometimes more binding than law, extend his effective control into branches of government other than his own. And he often may win as a political leader when he cannot command under the Constitution.”

And citing several historical instances, he noted that the “power taken by presidents in times of grave crisis” doesn’t always bring detailed authority.

In the Korematsu case regarding the policy of Japanese internment camps during World War II, Harward said Jackson’s opinion “rejects the clear racism in the internment order… but also the order that traditional approval of such a measure would portend…. Jackson’s concern, of course, has been prescient.

The actions of presidents taken under the plausible claim of urgent need and their subsequent need and validation” can make an “expansive set of emergency powers available to contemporary presidents.”

Back to the Youngstown case, he cited Jackson’s opinion again: “The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single articles torn from context…. Presidential powers are not fixed but fluctuating depending on their disjunction or conjunction with those of Congress.”

It’s not abnormal for powers to expand in crisis but Harward noted those powers typically tend to retreat once the crisis is past.

But national security concerns post 9-11 “cut across policy areas and institutional structures” to alter the dynamic between federal departments.

This growth of presidential power he described as “unitary executive theory,” where a broad reading can conclude that presidents have “unfettered presidential power” and “complete exclusive presidential authority.”

Harward asserted that President Trump has “expanded” that theory “to include run-of-the-mill domestic affairs” and that his decision not to comply with the subpoenas issued during the House impeachment inquiry will have an effect.

“(A) future president’s future ability to resist Congressional oversight will be dramatically expanded.”

What has changed for presidents to use the power at their fingertips?

“The political order now permits it.”

He suggested that the current climate results in likely Congressional inaction which invites expanded presidential power.

“The polarized character of our politics limits our constitutional order,” Harward said, “or more precisely expands the set of possible unilateral actions that are impervious to constraints.”

So the question then becomes how to “invigorate” Congressional oversight.

He discussed the impacts of the court and how the people – protesters, journalists – have forced additional oversight.

“In order for Congress to act, in order for Congress to overcome as I said before it’s lassitude, the incentives for Congress must be individualized to members of Congress…. Congress is a they, not an it.

“I invite you … to think through how that might be done,” he said. “I’ll give you a hint. There’s probably an electoral connection.”


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