Lawless

Even as the partisan political divide continues to widen, one thing has long united Democratic and Republican presidents—aggressively expanding presidential prerogatives at the expense of Congress.

Presidents are naturally inclined to test the legal and political limits of their power. In part, this is because politicians naturally desire to get as much political power as they can. But in part, it’s because the Constitution’s original design has been upended by the evolution of American politics.

Congress, not the president, is supposed to have primary responsibility for most lawmaking. In practice, however, the public gives the president credit and assigns him blame for everything that happens under his watch. Presidents want to have as much control as possible over their political fate, even if that means illegally expanding their own authority at the expense of Congress.

Moreover, Congress has found it politically convenient to pass vague, broad laws. The laws give the president and his underlings the authority to work out the details, providing many opportunities for abuse. Finally, the rise of the United States as the greatest military power in the world has concentrated power in the president because he is the commander-in-chief of the American military. Congress, meanwhile, has rarely tried to limit this power.

The result since at least the Theodore Roosevelt administration in the early twentieth century has been an ever-expanding “imperial presidency.” Congress enacted a series of reforms in the 1970s after the Watergate scandal and the Vietnam War to try to curb presidential excesses and reassert Congress’s authority. These reforms have been largely ineffective, and the president’s power has continued to grow under both Democratic and Republican presidents. The George W. Bush administration was especially aggressive in claiming unilateral authority over military and foreign affairs.
military and foreign affairs.

To some extent, then, the Obama administration has simply continued trends inherited from its predecessors. Obama, however, has asserted broad presidential prerogative across an unusually wide range of policy areas. As one liberal law professor puts it, “while Obama did not create the uber-presidency, he has pushed it to a new level of autonomy and authority.”