The Roots of the Imperial Presidency

What has Congress done in the past four months?  Now, what has the executive tried to do?  This is an illustration of a century long process of power to the executive.  We trace this evolution's historical roots.  

Transcript

The Roots of the Imperial Presidency

May 2025

“Presidential power should be questioned, continually. That’s what our system of government, defined by the separation of powers, is all about. It shouldn’t matter whether the president belongs to my party or to another one.”

Jeff Flake 

“I run the country and the world.” 

Donald Trump

I hate the 100-day thing.  The concept came from the most overrated president in American history but is perpetuated by journalists who lack imagination in framing stories.  Elaine Karmarck, writing for the Brookings Institute in her piece “The first 100 days: When did we start caring about them and why do they matter?”, states, “It came from the presidency of Franklin D. Roosevelt. Elected in the midst of a great depression, Roosevelt kept out of the fray during the long transition period between Election Day 1932 and Inauguration Day on March 4, 1933.”

Karmarck adds, “The breathtaking scope of bold and new actions, both legislative and regulatory, that set the bar so high. To name but a few: in those 100 days, he declared a bank holiday, took America off the gold standard, and passed groundbreaking legislation for farmers, homeowners, and the unemployed. He also passed amendments to the hated Volstead Act, which created prohibition. Immediately, “beer parties” were held all over the country in celebration.”

And it was not even the press that coined the term first 100 days but of course, Roosevelt himself. On July 25, 1933, Roosevelt gave a radio address in which he stated, “We all wanted the opportunity of a little quiet thought to examine and assimilate in a mental picture the crowding events of the hundred days which had been devoted to the starting of the wheels of the New Deal.” And note the “we” was meant to encompass Congress.  

Technically, Karmarck makes the same mistakes as so many illustrating that she too does not see the imperial forest for the trees.  Presidents do not “pass” legislation.  They can propose and sign it later, but Congress passes the legislation. This is not some ambivalent concept, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” And “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States.” 

And a little reminder for those supportive of our tariff-happy president of 2025, “The Congress shall have the Power To lay and collect Taxes, Duties, Imposts, and Excises,” and “To regulate Commerce with foreign Nations.”  Again, not some crazed form of legalese only a constitutional scholar or a Supreme Court clerk could understand, but rather most 13-year-olds.  

To be fair, Congress has granted some tariff power to the president over the last 110 years. Since the passage of the 16th Amendment creating the income tax, and in subsequent laws such as 1962’s Trade Expansion Act and 1974’s Trade Act, Congress surrendered control. The 1962 act provides, about steel and aluminum, “emergency powers” for a president to act.  This stipulation has been expanded to include many “emergency” provisions.  However, remaking the entire trade balance with 150 nations on the basis that our ability to import Vanilla, for example, constitutes an emergency is reckless.

This is but one example of Congress ceding authority to the president, but it is far from the only one. George Will, writing back in 2013 about the Obama Administration, noted of congressional authority, “Powers have, however, atrophied from a disuse amounting to institutional malfeasance as Congress has forfeited its role in national-security policymaking. Imperial presidents and invertebrate legislators of both parties have produced “a breakdown of our constitutional process.” 

In 2019, Dylan Hedtler-Gaudette, writing for the Project on Government Oversight, wrote, “For decades, Congress has been ceding its traditional authorities and prerogatives, many of which come from the Constitution to the executive branch. To safeguard the uniquely American systems of checks and balances and the separation of powers, Congress must begin to reclaim its role as a check on presidential power.” 

Hedtler-Gaudette adds, “At the moment, there are nearly three dozen active declared emergencies, and Congress has only voted on one of them, with the longest-running emergency dating back to 1979, (yes folks, a 46-year emergency). The declaration of a national emergency can give a president more than 100 different powers and authorities derived from a variety of laws; in light of this fact, administrations that span the partisan and ideological spectrum have been able to use emergency powers with little to no input from Congress.”

As noted, this process has been moving ahead for decades.  In his 1973 book, The Imperial Presidency, John F Kennedy’s tame historian, Arthur Schlessinger Jr, wrote, “A further reason for the indestructibility of the Presidency lies in the psychology of mass democracy. Once again, Alexi de Tocqueville provides the context. “Our contemporaries,” he wrote, “are constantly excited by two conflicting passions: they want to be led and wish to remain free....By this system, the people shake off their state of dependency just long enough to select their master and then relapse into it again.”

Schlessinger calls this process “as much a matter of congressional abdication as presidential usurpation. I wouldn’t want to downplay presidential will to power, but it’s true that Congress has sat by while presidents have acted without authorization.”

I could make this argument, and will in the future, about the erosion of community, families, religion, and institutions, and how this loss of spirituality has been replaced by … ugh… politicians.  Prior to our current form of democracy Kings were reputed to be the figures sitting between god and man.  Heck, the Romans worshipped Emperors as gods.  We see it in the bizarre iconography surrounding Trump and Obama, but that is digression.  Suffice it that for now, I will document what is happening and in the future get to the why.  

Despite the steady accrual of power in the executive at the expense of the legislative, we have seen in our last three presidents’ acceleration-as if on greased rails.  Let’s start with Barack Obama’s rejection of the legislative prerogatives.  “We are not just going to be waiting for legislation to make sure that we’re providing Americans the kind of help they need. I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.” 

Joe Biden simply ignored the laws governing our Southern border. But what was worse was Biden’s removal of taxation powers from Congress.  As Arnav Gurudatt, Garrett Watson, and William McBride of the Tax Foundation note, “Under current law, the tax code treats forgiven or canceled debt as taxable income, with some exceptions. If a borrower has debt forgiven, it is treated as if the borrower earned additional income in the previous tax year equal to the amount of forgiven debt. For example, if a borrower with an annual taxable income of $35,000 owes $20,000 in debt that is subsequently forgiven or canceled, the $20,000 in debt is added to their taxable income for a total of $55,000.”  And again, here, the Constitution is clear.  “The Congress shall have Power To lay and collect Taxes.” 

Finally, to Trump. I have noted his and Congress’ cessation of tariffs, though the tariff on Bananas (something notoriously hard to replicate within the homeland) does not constitute an emergency. But in other areas ranging from immigration to the removal of federal agencies and departments to the negotiation of treaties, Trump represents a vast expansion of executive power in all these cases.  

When the founders conceived of a new national government in the face of the feckless Articles of Confederation, the goal was to strengthen national power.  Yet that need had to be balanced against a too-mighty executive. Having just thrown out a monarch, it was critical to not simply recreate that authority.  In Federalist 48, Madison addresses this power.  “The powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident that none of them ought to possess, directly or indirectly, an overruling influence over the others in administrating their respective powers.”

Madison goes on to write,

“In a government where numerous and extensive prerogatives are placed in the hands of a hereditary monarch, the executive department is very justly regarded as the source of danger and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended on some favorable emergency, to start up in the same quarter.” 

Madison makes clear here that the branches are not, in fact, “co-equal,” as many contend, but rather that Congress must come first.

“The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers, once more extensive and less susceptible to precise limits, can, with greater facility, mask, under complicated and indirect measures, the encroachments it makes on the coordinate departments.”

He goes on to note:

“On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people (read MONEY folks) and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former.”

There is no way to read this and not realize our system has been upended. But it did not come wholesale; rather, what we have described above in our current presidents took two centuries to become its current, full travesty.  

Laura Ellyn Smith, in her piece “Now let him enforce it”: The Long History of the Imperial Presidency, states, “However, by examining nineteenth-century imperial presidents, it is possible to identify examples of executives who created crises in an attempt to legitimize their expansive use of executive power.” 

And there we will begin.

Andrew Jackson

Writing for the Miller Center, Daniel Feller notes, “Jackson strengthened himself against Congress by forging direct links with the voters. Reversing a tradition of executive deference to legislative supremacy, Jackson boldly cast himself as the people’s tribune, their sole defender against special interests and their minions in Congress. In other ways, too, Jackson expanded the scope of presidential authority. His bold initiatives and domineering style caused opponents to call him King Andrew and to take the name of Whigs to signify their opposition to executive tyranny.” It is not hard to see why Trump likes Jackson, but the same could also be said for Obama.  

Jackson was very much the Ur president when it came to presidential power. Whether it was taking on the 2nd bank or the state of South Carolina, Jackson not only strengthened the executive at the expense of Congress but set precedents that are being utilized today.  One can hear the echoes of Jackson when Trump says, “only I can fix it.”  As for conflicts with SCOTUS, it was Jackson who, as noted in Ellyn Smith’s piece, commented on a ruling from the judiciary that removed Jackson’s power to relocate native Americans. Jackson responded, “John Marshall has made his decision; now let him enforce it.” Nice.  

Abraham Lincoln

It is doubtful that a character such as Lincoln set out to assume authority as Jackson certainly did. However, the national existential threat of the Civil War forced his hand.  Just days after the Civil War began, Lincoln issued Executive Orders to suspend the writ of Habeas Corpus, which was arguably solely the function of Congress. This resulted in thousands of Americans being arrested during the war and jailed without charge or trial. He authorized military personnel to issue those orders in violation of the Constitution, and he ignored orders of the Supreme Court to release aggrieved private citizens opposed to the Union.

He argued that his oath to uphold the Constitution gave him “war powers” to do these things.  Yet it is hard to square the old argument that to preserve something, we first must break it.  The difference between the fake emergencies so often cited today is Lincoln was, at least, facing the most significant emergency this nation has ever seen.  

Teddy Roosevelt 

In the Smithsonian Magazine, Lorraine Boissoneault states, “Over the course of his eight years in office, Roosevelt issued more than 1,000 executive orders, nearly 10 times as many as his predecessor, William McKinley. While many of the orders were clerical or relatively insignificant—such as exempting a civil service employee from mandatory age-based retirement—others profoundly impacted the country. Roosevelt’s special focus was conservation.” And not just 10x of his predecessors but more executive orders than all previous 25 presidents combined.  

Roosevelt himself noted, “There was a great clamor that I was usurping legislative power… I did not usurp power, but I did greatly broaden the use of executive power,” 

Woodrow Wilson

But if we want to come to the true source of the imperial Presidency, no one did more than Woodrow Wilson to throw the Constitution out of whack. As Ilya Shapiro notes, “Wilson was essentially the first living constitutionalist, dedicated to overcoming the separation of powers that prevented (what Wilson would believe as) efficient government.” 

From Wilson’s own, What Is Progress? “All that progressives ask or desire is permission—in an era when ‘development,’ ‘evolution,’ is the scientific word—to interpret the Constitution according to the Darwinian principle.”

Yet, this evolution was not in favor of a stronger legislature, but of course, Wilson meant that, as president, that office should be more powerful. That was the Darwin Wilson had in mind, astonishingly something that would benefit… Wilson! In Wilson’s view, “those fathers of the nation viewed government as the scientists of their age viewed nature: mechanistically. Politics, in their thought, was a variety of mechanics. But governments are not machines; they are living things. Accountable to Darwin, not Newton, they obey the laws of life, not mechanics. The Framer’s system of checks and balances is fatal to government, for no living thing can have its organs offset against each other, as checks, and live. Instead of being allowed to adapt to circumstances and evolve, as all life must if it is to persist, the Framer’s constitutional order is fated to atrophy and perish.”

Get that? One body. What is the number of brains you have in your body?  I am pretty sure there is just one, and no doubt Wilson thought of himself as THE brain.  And, of course, Congress was just an appendage.  An arm or a leg but incapable of thinking for itself. And of course if amputated, the body would still live.  This belief system is so utterly preposterous it is always a wonder to me that Wilson was not either ridiculed or locked away in some home for the criminally narcissistic.  But he was not.  And in those presidential ranks, he was routinely placed in the top quartile by progressive historians until they learned of his not-so-hidden white supremacist beliefs.  All of this is why I rank Wilson dead LAST among all presidents, by I digress. 

Some of the progressive ideologies were the Fed, whose chair is appointed by the president, and agencies, in the executive, including the Federal Trade Commission and the Internal Revenue Service, a result of Wilson’s signing off on the income tax. The Committee on Public Information was established during his time in office.  An organization of which authoritarian rulers would be proud.

Wilson’s Sedition Act of 1918 was enacted on May 16, 1918, to extend the Espionage Act of 1917.  The Sedition Act covered a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds. Wilson used these broad powers, similar to but expanded upon Lincoln’s original premise, as war powers.  We hear much of FDR jailing Japanese Americans but less so that Wilson did the same internment of German Americans in an extra-constitutional fashion.  

However, the full scope of Wilson’s legacy was taking Jackson’s, Lincoln’s, and TR’s view of a powerful executive and embedding that as the permanent, superior locus to power in relation to the legislative.  After those first three presidents, Congress tended to bounce back to its constitutional role.  From Wilson until today, Congress has become a junior partner, even under small government presidents such as Harding and Coolidge.  

FDR

The full flower of Wilsonian imperialism began under Franklin Delano Roosevelt. I do not have the space here to innumerate the myriad ways under the New Deal and WWII that FDR accrued power but one anecdote.  This is provided by great historian Amity Shlaes, “One-day Roosevelt’s aide (and later Treasury Secretary) Henry Morgenthau asked FDR why the president had (unilaterally) chosen to drive up the price of gold by 21 cents. The president cavalierly said he’d done that because 21 was seven times three, and three was a lucky number. “If anyone ever knew how we really set the gold price through a combination of lucky numbers, etc., I think they would be frightened,” Morgenthau wrote in his diary. And they were: In the second half of 1933, a powerful stock rally flattened.”

This is beyond being a tribune of the people and protecting their rights. “I know better than Congress, the people, and the entire market, and I will act in a monarchial fashion that George III could only dream of.” Echoes of the present? 

Lyndon Baines Johnson 

It was not just the massive amount of legislation, including Civil Rights and Great Society under Johnson, but how he conducted his affairs. Johnson pioneered direct White House staff appointments of loyal who weren’t subject to Congressional approval.  He also drove the development of advisory bodies that complemented the cabinet departments, which declined in influence.  

But there was also the legislation that had the effect of massively recentering executive power. Examples include the Centers for Medicare and Medicaid, Housing, Energy, and even communications platforms such as PBS and NPR. Medicare and Medicaid now constitute nearly 40% of all federal spend, and its director and the Secretary of HHS serve at the president’s pleasure.  

Johnson Biographer Robert Caro wrote, “Being poor in the Hill Country, humiliated, the son of the town’s laughing stock-that fire was so hot that it formed him into a shape so hard it would never change. He has a hunger for power. He’s gotta get it.”

Richard M Nixon

Lest we think it was only Democrats who pursued a greater executive, Nixon imposed price controls (again, sound familiar) and created the EPA.  Few presidents went further than Richard Nixon in concentrating powers in the Presidency. He refused to spend funds that Congress had appropriated; he claimed executive privilege against disclosure of information on administration decisions; he refused to allow key decision-makers to be questioned before congressional committees; he reorganized the executive branch and broadened the authority of new cabinet positions without congressional approval; and during the Vietnam War, he ordered harbors mined and bombing raids launched without consulting Congress.

So that is the Bridge to our current times—the use of crises and emergencies.  

Crisis management is a crucial aspect of executive leadership. From national security threats to natural disasters, presidents must navigate complex challenges while balancing their powers with constitutional checks. The president’s crisis toolkit includes the National Security Council, executive orders, and disaster declarations. Effective crisis response requires coordinating federal agencies, managing public perception, and balancing diplomacy with force in international situations.  But the availability of these powers can lead to all kinds of mischief. 

In his first term, Trump issued an emergency declaration over migration at the U.S.–Mexico border at a time when unlawful border crossings were hovering near a 40-year low. He used the declaration to secure the border wall funds after Congress repeatedly refused his funding requests. During the COVID-19 pandemic, President Joe Biden tried to use emergency powers to forgive student debt.

The International Emergency Economic Powers Act, in particular, has long been used as a routine foreign policy tool rather than an actual emergency power. It underlies dozens of sanctions regimes, some of which have been in place for decades. However, Trump’s imposition of tariffs takes the misuse of this law to a new level. Previous sanctions have targeted specific governments, countries, or practices (such as international terrorism or cybercrime). Trump’s actions impose penalties on every country in the world.

It is a sign of the times that I turn not to a once conservative think tank like American Heritage (now corrupted by populism and tribalism) but instead to the Brennan Center, named after leftist Supreme Court Justice William Brennan and Elizabeth Goitein for some ideas:

“One key proposal is to amend the National Emergencies Act to require emergency declarations to expire after 30 days unless approved by Congress. This would shore up Congress’s role as a check against presidential overreach. The Brennan Center has also proposed reforming the International Emergency Economic Powers Act to curb its potential for abuse by prohibiting its use for tariffs.”  

To note that there is one conservative organization that has not succumbed. The Cato Institute is still around, and Gene Healy, author of Cult of the Presidency: America’s Dangerous Obsession with Executive Power, states, “The president described in the Federalist was to have ‘no particle of spiritual jurisdiction.’ Yet American political culture has invested the role with quasi-mystical significance, turning a limited constitutional officer into a figure responsible for all things great and small—from the price of a tank of gas to the state of the ‘national soul.’ This vision of the president as national guardian and redeemer,’ I wrote in Cult’s opening pages, has become ‘so ubiquitous it goes unnoticed.’” 

“One of the key benefits of “energy in the executive,” Alexander Hamilton argued in The Federalist, is that it would provide “steady administration of the laws.” In the modern era, it’s had the opposite effect: The law changes radically from administration to administration, depending on the president's policy preferences. And another Cato colleague, Robert Bryson, has additional proposals akin to those from the Brennan Center.

First, the president can issue executive orders under a grant of authority from Congress. Second, executive orders are legitimate if they relate to the president’s role as commander-in-chief or his other core powers—especially in foreign policy and national security. Third, executive orders are valid when dealing with executive agencies' internal workings. Beyond those three categories, executive orders affecting the rights and obligations of private parties may well be unconstitutional. They are not intended for the executive branch to bypass Congress. 

When these executive orders occur, Congress could refuse to fund the activity. Second, Congress could pass legislation with guardrails limiting executive and administrative action. For example, the Congressional Review Act allows Congress to nullify selected agency acts within a specified time frame. If passed, the REINS bill (Regulations from the Executive in Need of Scrutiny) would require Congress to approve all major administrative regulations. 

But at the center of this entire fight is the supine Congress. Until this gets fixed, until congresspeople are incentivized to retake their constitutional power, we will end up with something akin to an authoritarian system in which the executive election is not one of our elections but the only one that matters.