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The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers
A constitutional originalist sounds the alarm over the presidency’s ever-expanding powers, ascribing them unexpectedly to the liberal embrace of a living Constitution.
Liberal scholars and politicians routinely denounce the imperial presidency―a self-aggrandizing executive that has progressively sidelined Congress. Yet the same people invariably extol the virtues of a living Constitution, whose meaning adapts with the times. Saikrishna Bangalore Prakash argues that these stances are fundamentally incompatible. A constitution prone to informal amendment systematically favors the executive and ensures that there are no enduring constraints on executive power. In this careful study, Prakash contends that an originalist interpretation of the Constitution can rein in the “living presidency” legitimated by the living Constitution.
No one who reads the Constitution would conclude that presidents may declare war, legislate by fiat, and make treaties without the Senate. Yet presidents do all these things. They get away with it, Prakash argues, because Congress, the courts, and the public routinely excuse these violations. With the passage of time, these transgressions are treated as informal constitutional amendments. The result is an executive increasingly liberated from the Constitution. The solution is originalism. Though often associated with conservative goals, originalism in Prakash’s argument should appeal to Republicans and Democrats alike, as almost all Americans decry the presidency’s stunning expansion. The Living Presidency proposes a baker’s dozen of reforms, all of which could be enacted if only Congress asserted its lawful authority.
Liberal scholars and politicians routinely denounce the imperial presidency―a self-aggrandizing executive that has progressively sidelined Congress. Yet the same people invariably extol the virtues of a living Constitution, whose meaning adapts with the times. Saikrishna Bangalore Prakash argues that these stances are fundamentally incompatible. A constitution prone to informal amendment systematically favors the executive and ensures that there are no enduring constraints on executive power. In this careful study, Prakash contends that an originalist interpretation of the Constitution can rein in the “living presidency” legitimated by the living Constitution.
No one who reads the Constitution would conclude that presidents may declare war, legislate by fiat, and make treaties without the Senate. Yet presidents do all these things. They get away with it, Prakash argues, because Congress, the courts, and the public routinely excuse these violations. With the passage of time, these transgressions are treated as informal constitutional amendments. The result is an executive increasingly liberated from the Constitution. The solution is originalism. Though often associated with conservative goals, originalism in Prakash’s argument should appeal to Republicans and Democrats alike, as almost all Americans decry the presidency’s stunning expansion. The Living Presidency proposes a baker’s dozen of reforms, all of which could be enacted if only Congress asserted its lawful authority.
352 pages, Hardcover
Published April 21, 2020
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Displaying 1 - 4 of 4 reviews
June 3, 2020
Thought provoking analysis and proposals. Prakash is an engaging writer and makes a strong case that presidential power should be curtailed by congress and the courts regardless of their preference for the president’s party affiliation in an effort to regain a balance of power between the branches and not allow the continued creep of ceding authority to the executive.
I particularly enjoyed the chapters on war powers and executive lawmaking.
Will keep this one around to refer back to.
I particularly enjoyed the chapters on war powers and executive lawmaking.
Will keep this one around to refer back to.
December 29, 2021
A trenchant critique of the ever-evolving presidency and its many enablers
March 16, 2022
The modern presidency is radically different than it used to be. Its powers are not confined to executing the laws and commanding the troops. Nowadays presidents can unilaterally start wars, issue laws, make treaties, and informally amend the Constitution (COTUS), none of which their predecessors could do two centuries ago. The steady expansion of executive power led one prominent historian back in 1973 to call the transformed office the “imperial presidency.” Yet no formal constitutional amendments have been added to expand presidential powers. Instead, successive presidents from both parties have asserted and exercised greater powers, with one precedent building upon others.
Law professor Saikrishna Prakash of the University of Virginia is a constitutional originalist. The Living Presidency provides a non-partisan critique of the grasping presidency, diagnosing the causes and proposing remedies.
His thesis is that “The modern presidency has no enduring limits, no permanent constraints.” Yet schoolchildren are still taught outdated platitudes such as “presidents enforce the law, not make it,” and “presidents cannot make treaties without the consent of the Senate.” Professor Prakash asserts that, “in the twenty-first century, these feel-good bromides are false.”
Presidents take an oath to “preserve, protect and defend the Constitution.” Prakash contends that they do not protect the existing constitutional order. Instead, they are the leading change agents in our system. The public expects presidents to advance an agenda, which often seeks changes in how the COTUS is interpreted. Whether it is more or fewer regulations on guns, abortion, and trans rights, presidents want to change -- rather than to defend -- existing constitutional norms. The truth is that “pro-choice presidents are pro-choice first and constitutional vindicators second. Pro-life presidents are not meaningfully different, save for being on the opposite side of the policy question.”
Presidents change the COTUS and federal law by “stretching, bending and breaking elements of both.” And they get away with it. One reason is a judicial interpretation that a repeated executive practice of ignoring or breaching a law becomes a tradition and sets a precedent that changes the meaning of the transgressed provision. For example, when presidents gain the power to agree to treaties without Senate approval, they are changing the COTUS by practice.
To Prakash, that means rewarding persistent abuses. “Presidential transgressions should not serve as a means of amending the Constitution.” It seems highly doubtful that the Founders would have countenanced changing the COTUS via persistent violations of it.
The last time Congress formally declared war was in 1941. That hasn’t stopped the USA from fighting wars in Korea, Vietnam, Iraq, Afghanistan and many other countries. When Truman committed the nation to war to defend South Korea, he denied it was a war, calling it a “police action.” The State Department backed him up, even though 36,000 Americans died in the police action. Sen. Robert Taft, however, called Truman’s action a violation of the COTUS. Taft said that if Congress did nothing, it would thereby “terminate for all time the right of Congress to declare war.” He proved prophetic. The congressional power to declare war is obsolete. Presidents invoke the Truman precedent and now make the decision in their capacity as Commander-in-Chief, and it is unclear if there remain any limits on that war-making power.
Other congressional powers over foreign affairs have also withered. “Modern presidents assert constitutional authority to wage war, a right to ignore legislative regulation of the military, and autonomy in conduct of the war.” What once was broad congressional authority in wartime now exists only on paper. For example, the early Congresses micromanaged the conduct of war, and did so without protest from the Commander-in-Chief. Today Commanders-in-Chief dispatch troops anywhere they want to make war. A recent example was President Obama overthrowing the regime in Libya.
The early commanders-in-chief were legally subordinate to Congress. But “the ever-burgeoning authority of the modern commander-in-Chief” far exceeds the war power of King George III. This amounts to informally changing the COTUS by the “amendatory powers of practice.”
The COTUS expressly constrains the president’s treaty-making power, but the practice in recent decades has render the Treaty Clause “but a shell of its former self...Had presidents enjoyed a separate power to make treaties unilaterally, the Treaty Clause’s requirement of Senate consent would have been superfluous.”
One common practice is seeking consent from Congress as a whole to international agreements, rather than trying to get two-thirds approval from the Senate. Such agreements that Congress approves are called “congressional-executive agreements,” though they function much like treaties.
Presidents also make thousands of sole executive agreements with other countries, and sometimes nonbinding “political commitments.” The best known political commitment was the Iran nuclear deal, formally called the Joint Comprehensive Plan of Action (JCPOA). Presidents and secretaries of state refer to it as an “agreement,” which is what it really was, despite careful language meant to bypass the Treaty Clause.
Foreign policy isn’t the only area of executive usurpation. Article I empowers Congress to make laws. Congress has repeatedly delegated powers to presidents and executive agencies to make rules necessary to carry out programs passed by Congress. “If we judge laws by sheer volume, many more laws are created by agencies via delegated authority than by Congress.” Presidents also issue executive orders that have the status of law. In short, the executive is also a major legislator. The presidency has been referred to as the junior varsity Congress.
Both the Left and the Right agree that the presidency has become too powerful. The problem is that they “tend to believe this at different times.” Democrats saw Bush 43 as King George IV, while Republicans saw Obama as a lawless monarch. But critics in both parties are only fair-weather fans of a more modest presidency.
Extreme partisanship facilitates the unabated expansion of presidential power. In our hyper-partisan era, all principles are subordinated to partisan advantage. Both parties see the imperial presidency as a problem only when the opposition party is in the White House.
The reality is that the “the metastasizing presidency (is) one of the most momentous constitutional transformations.” Advocates of the living Constitution can’t escape responsibility for the imperial presidency. “After all, if judges and Congress can amend the living Constitution by transgressing existing norms, surely presidents can do the same.”
Prakash sees a narrow window when institutional unity can emerge. It is in the few months before presidential elections, especially closely contested elections where both parties fear the other side may win. In that case, Congress may be amenable to re-asserting its authority. Prakash proposes more than a dozen specific reforms Congress should adopt to restrain the imperial presidency. Among his proposals are these:
• Require Senate approval of high-ranking presidential advisers who have more authority than cabinet members who are approved. These officials should include the national security adviser, (Michael Flynn was Trump’s first NSA), the White House counsel, the president’s chief of staff.
• Stop delegating legislative authority to the president, and insert sunset provisions in existing delegations, including emergency powers.
• Require congressional approval of agency rules before they become law.
• Discourage signing statements -- where presidents sign a bill into law while declaring parts of it unconstitutional -- by adding non-severability clauses to bills so such statements would kill the whole bill. If the bill otherwise contains things the president really wants, he may be circumspect about issuing a signing statement.
• Declare that executive privilege does not apply to matters of congressional oversight.
• Use censure rather than impeachment to chastise presidential misbehavior. Censures are much easier to pass than impeachment and conviction.
It's refreshing to find a political book that doesn’t have a partisan ax to grind. While the author has a strong point of view, partisanship is not evident in either his analysis or his diagnosis. “There are no angels among our recent presidents, at least on questions of presidential powers.”
This reviewer taught the Constitution at the high school level for many years. After reading The Living Presidency, I would teach it much differently today. Gone would be simply reading the text of the document. Instead, teachers should explain how the Constitution is interpreted today, and how the system actually works. -30-
Law professor Saikrishna Prakash of the University of Virginia is a constitutional originalist. The Living Presidency provides a non-partisan critique of the grasping presidency, diagnosing the causes and proposing remedies.
His thesis is that “The modern presidency has no enduring limits, no permanent constraints.” Yet schoolchildren are still taught outdated platitudes such as “presidents enforce the law, not make it,” and “presidents cannot make treaties without the consent of the Senate.” Professor Prakash asserts that, “in the twenty-first century, these feel-good bromides are false.”
Presidents take an oath to “preserve, protect and defend the Constitution.” Prakash contends that they do not protect the existing constitutional order. Instead, they are the leading change agents in our system. The public expects presidents to advance an agenda, which often seeks changes in how the COTUS is interpreted. Whether it is more or fewer regulations on guns, abortion, and trans rights, presidents want to change -- rather than to defend -- existing constitutional norms. The truth is that “pro-choice presidents are pro-choice first and constitutional vindicators second. Pro-life presidents are not meaningfully different, save for being on the opposite side of the policy question.”
Presidents change the COTUS and federal law by “stretching, bending and breaking elements of both.” And they get away with it. One reason is a judicial interpretation that a repeated executive practice of ignoring or breaching a law becomes a tradition and sets a precedent that changes the meaning of the transgressed provision. For example, when presidents gain the power to agree to treaties without Senate approval, they are changing the COTUS by practice.
To Prakash, that means rewarding persistent abuses. “Presidential transgressions should not serve as a means of amending the Constitution.” It seems highly doubtful that the Founders would have countenanced changing the COTUS via persistent violations of it.
The last time Congress formally declared war was in 1941. That hasn’t stopped the USA from fighting wars in Korea, Vietnam, Iraq, Afghanistan and many other countries. When Truman committed the nation to war to defend South Korea, he denied it was a war, calling it a “police action.” The State Department backed him up, even though 36,000 Americans died in the police action. Sen. Robert Taft, however, called Truman’s action a violation of the COTUS. Taft said that if Congress did nothing, it would thereby “terminate for all time the right of Congress to declare war.” He proved prophetic. The congressional power to declare war is obsolete. Presidents invoke the Truman precedent and now make the decision in their capacity as Commander-in-Chief, and it is unclear if there remain any limits on that war-making power.
Other congressional powers over foreign affairs have also withered. “Modern presidents assert constitutional authority to wage war, a right to ignore legislative regulation of the military, and autonomy in conduct of the war.” What once was broad congressional authority in wartime now exists only on paper. For example, the early Congresses micromanaged the conduct of war, and did so without protest from the Commander-in-Chief. Today Commanders-in-Chief dispatch troops anywhere they want to make war. A recent example was President Obama overthrowing the regime in Libya.
The early commanders-in-chief were legally subordinate to Congress. But “the ever-burgeoning authority of the modern commander-in-Chief” far exceeds the war power of King George III. This amounts to informally changing the COTUS by the “amendatory powers of practice.”
The COTUS expressly constrains the president’s treaty-making power, but the practice in recent decades has render the Treaty Clause “but a shell of its former self...Had presidents enjoyed a separate power to make treaties unilaterally, the Treaty Clause’s requirement of Senate consent would have been superfluous.”
One common practice is seeking consent from Congress as a whole to international agreements, rather than trying to get two-thirds approval from the Senate. Such agreements that Congress approves are called “congressional-executive agreements,” though they function much like treaties.
Presidents also make thousands of sole executive agreements with other countries, and sometimes nonbinding “political commitments.” The best known political commitment was the Iran nuclear deal, formally called the Joint Comprehensive Plan of Action (JCPOA). Presidents and secretaries of state refer to it as an “agreement,” which is what it really was, despite careful language meant to bypass the Treaty Clause.
Foreign policy isn’t the only area of executive usurpation. Article I empowers Congress to make laws. Congress has repeatedly delegated powers to presidents and executive agencies to make rules necessary to carry out programs passed by Congress. “If we judge laws by sheer volume, many more laws are created by agencies via delegated authority than by Congress.” Presidents also issue executive orders that have the status of law. In short, the executive is also a major legislator. The presidency has been referred to as the junior varsity Congress.
Both the Left and the Right agree that the presidency has become too powerful. The problem is that they “tend to believe this at different times.” Democrats saw Bush 43 as King George IV, while Republicans saw Obama as a lawless monarch. But critics in both parties are only fair-weather fans of a more modest presidency.
Extreme partisanship facilitates the unabated expansion of presidential power. In our hyper-partisan era, all principles are subordinated to partisan advantage. Both parties see the imperial presidency as a problem only when the opposition party is in the White House.
The reality is that the “the metastasizing presidency (is) one of the most momentous constitutional transformations.” Advocates of the living Constitution can’t escape responsibility for the imperial presidency. “After all, if judges and Congress can amend the living Constitution by transgressing existing norms, surely presidents can do the same.”
Prakash sees a narrow window when institutional unity can emerge. It is in the few months before presidential elections, especially closely contested elections where both parties fear the other side may win. In that case, Congress may be amenable to re-asserting its authority. Prakash proposes more than a dozen specific reforms Congress should adopt to restrain the imperial presidency. Among his proposals are these:
• Require Senate approval of high-ranking presidential advisers who have more authority than cabinet members who are approved. These officials should include the national security adviser, (Michael Flynn was Trump’s first NSA), the White House counsel, the president’s chief of staff.
• Stop delegating legislative authority to the president, and insert sunset provisions in existing delegations, including emergency powers.
• Require congressional approval of agency rules before they become law.
• Discourage signing statements -- where presidents sign a bill into law while declaring parts of it unconstitutional -- by adding non-severability clauses to bills so such statements would kill the whole bill. If the bill otherwise contains things the president really wants, he may be circumspect about issuing a signing statement.
• Declare that executive privilege does not apply to matters of congressional oversight.
• Use censure rather than impeachment to chastise presidential misbehavior. Censures are much easier to pass than impeachment and conviction.
It's refreshing to find a political book that doesn’t have a partisan ax to grind. While the author has a strong point of view, partisanship is not evident in either his analysis or his diagnosis. “There are no angels among our recent presidents, at least on questions of presidential powers.”
This reviewer taught the Constitution at the high school level for many years. After reading The Living Presidency, I would teach it much differently today. Gone would be simply reading the text of the document. Instead, teachers should explain how the Constitution is interpreted today, and how the system actually works. -30-
March 11, 2021
This is one of the first truly non-partisan political books I have read. It is a comprehensive overview of the expansion of presidential (Republican and Democrat) power-grabbing and constitutional overstep, specifically in the areas of war, foreign affairs, and lawmaking. It is a compelling call for us to commit to neutrality when judging the legality of our executive's actions, even if the president is giving us what we want by overstepping his constitutional bounds.
I do not think the author provides a persuasive enough argument that the living presidency is a defining feature of living constitutionalism for it to be one of the primary points of the book. In seeming contradiction to this argument, many of his suggestions for "recaging the executive lion" could be applied in a living constitutional system. While I understand his greater point regarding the convenient hypocrisy of living constitutionalists' criticisms of presidents ignoring or overriding laws on the basis of constitutional boundaries, I do not agree with his extrapolation of the dangers of executive overreach to the living Constitution theory more generally, especially in the context of the judicial branch.
I do not think the author provides a persuasive enough argument that the living presidency is a defining feature of living constitutionalism for it to be one of the primary points of the book. In seeming contradiction to this argument, many of his suggestions for "recaging the executive lion" could be applied in a living constitutional system. While I understand his greater point regarding the convenient hypocrisy of living constitutionalists' criticisms of presidents ignoring or overriding laws on the basis of constitutional boundaries, I do not agree with his extrapolation of the dangers of executive overreach to the living Constitution theory more generally, especially in the context of the judicial branch.
Displaying 1 - 4 of 4 reviews