The President Can Do Whatever He Wants, Which Is Why He Can’t

A painting of George Washington presiding over the signing of the Constitution at the Constitutional Convention in Philadelphia on September 17, 1787
Library of Congress / AP

Power enables. But in a properly functioning democratic republic, power also constrains.

This was a recurrent theme in the constitutional debates of the founding era and played a particularly prominent role in the design of the executive branch. At the Constitutional Convention, at the state ratifying conventions that followed, and in the country’s earliest years post-ratification, individual Founders took turns advocating for concentrating executive authority in a single man. They did so even though, as recent subjects of the British crown, they were well aware of the risks of this model. Why? Because they believed it would ensure, rather than diminish, the citizenry’s ability to hold the executive branch to account. They explicitly reasoned that if sufficient authority was vested in the president, he could not hide behind advisers or subordinates, or a complicated executive-governance apparatus, to evade responsibility for his wrongful conduct or poor decision making.

This is the too-often forgotten half of the constitutional blueprint for presidential authority. In the Founders’ original design, accountability was supposed to serve as the wiring that runs inside the walls and under the floors of executive power.

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Advocates of expansive executive power—a position associated with today’s conservatives, but with liberals in the years leading up to the Vietnam War—tend to rely on a select set of historical authorities to argue for the practical benefits and even urgency of embracing a strong, unitary executive. The go-to text for this perspective is “Federalist No. 70,” in which Alexander Hamilton argues for vesting the executive power in one man instead of multiple men because it would allow him the requisite “decision, activity, secrecy, and despatch” to carry out the duties of his office. Central to this vision of executive power is the notion that, unlike the other branches—particularly Congress, hobbled by the inefficiencies that come of the need for cooperation and consensus—the president is able to act swiftly and decisively, an advantage seen as particularly crucial when it comes to matters of national security and foreign diplomacy. (This particular view of the executive as the indisputable master of U.S. statecraft and all attendant authorities was voiced most recently by Attorney General William Barr in a speech arguing for the broad sweep of executive power, at the Federalist Society’s National Lawyers Convention. In his words, the Founders understood that sovereign functions such as the conduct of foreign relations and the waging of war “by their very nature cannot be directed by a preexisting legal regime, but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances.”)

But other passages of the same Federalist paper—the less celebrated, less tweetable passages—explore the benefits of political and practical constraints on this power. Hamilton explains that, as a single person, the unitary executive would be uniquely exposed to criticism and censure. And because he saw this as a very good thing, Hamilton opposed diluting that exposure through “multiplication of the Executive.” Permitting more than one man to steer the ship would compromise the country’s ability to identify and root out a bad captain: “It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall.” Such an accountability gap would be, in Hamilton’s view, fundamentally incompatible with smart executive design. What could be more frustrating than having nobody to hold responsible for an obvious national disaster? He warned, “The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.”

The idea of concentrating power in one man for the purpose of crystallizing accountability was by no means an exclusively Hamiltonian one. In debates over the structure of the executive branch and particular executive functions, too, the desire to maximize executive accountability remained at the forefront of the Founders’ minds and was frequently cited as a crucial reason to endow the president with more power, rather than less.

For instance, during the Constitutional Convention, the delegates considered various proposals for establishing a “council” to the president—something very different from the modern Cabinet, in that it would be a creature of legislative control. The one such proposal to actually get voted on, put forth by the presidential-powers skeptic George Mason, called for a council consisting of representatives from the various states selected by the Senate for staggered six-year terms. But the idea of a council was ultimately shot down by opponents concerned that the president “by persuading his Council to concur in his wrong measures, would acquire their protection for them.” In other words, the fear was that he would use the council to diffuse responsibility for his bad ideas and weasel out of the blame for bad outcomes.

The state ratifying conventions, where delegates worked to persuade the states to sign onto the final document, are another helpful resource for understanding the Founders’ perspective on constitutional-design choices. During the Pennsylvania convention, to support his argument that one of the Constitution’s central advantages was that “the executive authority is one,” James Wilson specifically described the various powers that had been granted to the president as a form of relief rather than a source of concern. He reasoned that vesting significant powers in a single man meant the country had “a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes.” Undivided power would ensure that “far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.”

This well-accepted relationship between power and accountability affected not just the drafting of the Constitution but also its interpretation by the drafters after ratification. The debates of the first Congress, in particular, provide an important model for how the Founders worked through constitutional puzzles in real time, once the work of governing had begun. During one such debate, the House tried to determine whether the president had the exclusive power to remove executive officers who had been appointed with the advice and consent of the Senate—in other words, whether this was his authority alone to exercise, or whether Congress should have a role to play in removal, given it had a role to play in appointment. James Madison argued that it was “absolutely necessary” for the president to be given unilateral removal authority, because “it will make him in a peculiar manner, responsible for [the] conduct” of executive officers. Put differently, exclusive removal authority meant that the buck would stop with the president when it came to badly behaving subordinates. Madison reasoned that the president could be impeached if he permitted them “to perpetrate with impunity high crimes or misdemeanors against the United States” or failed to exercise the oversight necessary to “check their excesses.”

The recent legal and political commentary on developments coming out of the White House has reflected little of this nuance. Like land surveyors tasked with performing field measurements to resolve a property-line dispute, commentators tend to focus on assessing whether some action by the president falls within the technical limits of the executive power or spills outside them. On this view, power is a territorial claim that serves to shield the president from criticism, rather than exposing him to it. That’s why when President Donald Trump proclaimed that he had the “absolute right” to pardon himself last year, the ensuing media chatter focused on whether the historical definition of pardon accommodated such self-directed action—the assumption being that this would put him politically and legally in the clear. Similarly, Trump has laid claim to the “absolute right” to release classified information, the “absolute right” to appoint (and, by implication, remove) ambassadors, and, in defense of his call to Ukrainian President Volodymyr Zelensky, the “absolute right” to seek help from foreign countries in investigating corruption. But the notion that the president enjoys any “absolute right” in the exercising of his powers is absolutely wrong as a matter of constitutional design; the misappropriation of “rights” language by would-be rulers to protect themselves from the will of the ruled cannot be squared with the Founders’ twinned view of executive power and democratic accountability.

The country is now lurching toward a probable impeachment trial in the Senate. On the surface, these highly charged, publicly televised proceedings will revolve around what President Trump did and did not do in his correspondence with Zelensky, and the possible authorities and justifications for those actions. But lurking just beneath the surface of the House’s case and the president’s defense will be competing visions of executive power, expressed as tension between what the president is permitted to do and what the citizenry is entitled to expect, between what the letter of the law permits and what the public trust demands.

The proceedings may well confirm that, as a country, America has adopted an ahistorical conception of constitutional power as a direct, one-way current that turns things on and makes things happen for the person elected to wield it. But the Founders had a different understanding of how power works in a healthy democratic republic. Power is—to push the analogy—an alternating current, flowing as surely and as frequently from constituents as from their elected representatives. Officials occupying positions of public trust might be endowed with enormous authority, but they are subject to perpetual reevaluation, reproach, and even recall when they choose to exercise that discretion in ways that their constituents—or, in the case of impeachment and removal, the House and the Senate—deem wrong or abusive.

Any American schoolchild knows that this is the basic dynamic that allows a representative democracy to function. Elected leaders are supposed to be held in check by their knowledge that the public will hold them responsible for their decisions and will, if dissatisfied, vote them out of office. The key point here, however, is that the Founders were so committed to this dynamic, and were so concerned about inadvertently undermining it, that they preferred to trust and protect the public’s ability to enforce limits on presidential power, in practice, over dividing or stringently limiting the president’s power themselves, on paper.

Hence the inherent fallacy in suggesting that the public shouldn’t call officials to account for decisions that they make or abuses that they commit as long as those decisions or abuses arguably fall within the bounds of discretionary authority granted to them under the Constitution. The fact is, the Founders were counting on the public to do just that. They vested in the president unitary executive power not to insulate him from the judgment of the citizenry, but to clearly and indisputably subject him to it.