History shows how presidents expand power. A look at how it’s been done for centuries.

By Dan Stark UConn Journalism

Presidents in 1800s expand wartime and veto powers: expansions of executive power in the 1800s under Presidents Andrew Jackson, James K. Polk and Abraham Lincoln.

Andrew Jackson (1829–1837) Introduced the spoils system and expanded veto power

President Andrew Jackson was dubbed a “king” because of his expansive executive actions.

When Andrew Jackson took office in 1829, he sought to change the federal bureaucracy, which was rooted in his deep distrust of his political opponents. To do so, he implemented a policy where a new president would be allowed to fire government and workers and replace them with loyalists, mostly made up of his political allies. Though hiring loyalists wasn’t a new practice, firing current workers was uncharted territory.

The move was derided by Jackson’s opponents, most notably Kentucky Senator Henry Clay. In a heated debate, New York Senator William L. Marcy, a Jackson ally, stated that “to the victor belongs the spoils,” leading to the practice being dubbed the “spoils system,” according to history writer Robert McNamara. This system continued with no checks until the Pendleton Civil Service Reform Act was passed in 1883, which banned the practice of firing federal workers for political reasons.

Jackson’s use of veto power also distinguished him from his predecessors. Before him, most presidents used the veto power only to disapprove of something they thought unconstitutional. However, Jackson used this to veto legislation with which he simply disagreed. He issued 12 vetoes during his tenure, which was the most of any president up until that point, according to Senate records.

His most notable veto came in 1832 when he vetoed a re-charter of the Second Bank of the United States. Jackson was a staunch opponent of the bank’s existence and frequently clashed with Nicholas Biddle, the bank’s president from 1823 to 1836. In a letter to Biddle, Jackson explained his opposition to the bank and the concept of banks.

“I do not dislike your bank any more than all banks. But ever since I read the history of the South Sea bubble I have been afraid of banks,” he wrote, referencing the British economic crisis of the 1720s.

In his veto, he wrote that “some of the powers and privileges possessed by the existing bank are unauthorized by the Constitution, subversive of the rights of the States, and dangerous to all liberties of the people” and declared that it was his presidential duty to object.

As a result of his expansive actions, some labeled Jackson as “King Andrew the First,” including an unknown political cartoonist in 1832 who drew Jackson in royal garb with the bank veto in hand.

James K. Polk (1845–1849) Taking greater oversight over the Department of War

Though he only served one term, James K. Polk expanded the scope of executive power particularly in regard to the president’s authority as commander-in-chief of the Armed Forces. This began in 1845 when, in response to the pending annexation of Texas, Polk ordered 1,500 troops to Texas.

When the Mexican-American War broke out in 1846, Polk established himself as a confrontational military leader by side-stepping the Department of War to create war strategy himself. He oversaw minute details of the war like replacing officers and kept a close eye on decisions made by the Department of War as he sought to expanded American influence in the Western Hemisphere, according to Timothy C. Hemmis, a history professor at Texas A&M University.

His desire to control multiple aspects of the war led to tensions as those beneath him became increasingly frustrated, according to the Center for Greater Southwestern Studies at the University of Texas at Arlington. Similar to Andrew Jackson, who Polk was a loyal supporter of early in his political career, he viewed any slight deviation from his plan as a betrayal or an act of partisanship.

Abraham Lincoln (1861–1865) Reshaping the power of the commander-in-chief

 

Lincoln came into power in 1861 at an unparalleled moment in American history as Southern states began seceding from the Union. To respond to this, he took extensive actions that some say made Lincoln “the most activist President in history.”

Lincoln transformed “the President’s role as commander in chief and as chief executive into a powerful new position,” wrote Michael Burlingame of the University of Virginia’s Miller Center and professor emeritus at Connecticut College, “making the President supreme over both Congress and the courts.”

The Supreme Court was a particular target of Lincoln, who, along with other young members of the Republican Party, was still angered by the Court for the infamous Dred Scott decision in 1857 which declared that slaves were not American citizens. Lincoln and his party argued that the Court only had the power to make decisions on individual disputes rather than larger constitutional issues, the latter of which is the basis of judicial review.

Lincoln and the Republican-led Congress challenged the Court’s power by passing the Territorial Slavery Act of 1862, which banned slavery in current and future American territories. The greatest flexing of Lincoln’s executive muscle came with the passage of the Habeas Corpus Suspension Act of 1863. Under the procedure of habeas corpus, a detained person must be brought before a court to determine if they have been legally detained. However, the bill gave Lincoln great power by suspending this in order to imprison those who were viewed as threats to the Union.

“The President of the United States, whenever, in his judgement, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case through the United States, or any part thereof,” reads the opening paragraph of the act. “And whenever and wherever the said privilege shall be suspended, as aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons detained by him by authority of the President.”

There was also a great effort by Lincoln’s administration to limit freedom of the press throughout the Civil War. According to David Asp of the Free Speech Center at Middle Tennessee State University, newspaper editors and reporters were regularly arrested for various reasons, including speaking against the draft or writing statements that the government viewed as being pro-South or vaguely anti-Union.

“Handling dissent in the North presented an unprecedented difficulty for the Lincoln administration,” wrote Asp. “From the start of Lincoln’s presidency, the Northern press gave voice to many of his critics. Newspapers argued that secession was the inevitable consequence of his policy toward the South. As the war dragged on, the opposition press grew louder, demanding compromise with the Confederacy to halt the bloodshed.”

Basic free speech also came under attack during the war. Former Congressman Clement Vallandigham gave a speech referring to the president as “King Lincoln” and calling for his removal from office, he was arrested four days later and was sentenced to prison for the rest of the war, according to Asp.

By Mikayla Bunnell UConn Journalism

How 20th century presidents grew power at home and abroad  expansions of executive power under presidents Franklin D. Roosevelt, Lyndon B. Johnson and Ronald Reagan.

Franklin D. Roosevelt (1933–1945) Expansions under the New Deal and a proposed way to reshape the Supreme Court

Franklin D. Roosevelt expanded the presidency to more than just chief executive, the Miller Center said — he made the president a chief legislator, a “drafter of policy.” Roosevelt’s New Deal legislation moved the country away from dual federalism, in which states and the federal government are two distinct entities each with their own powers, to cooperative federalism, where state and federal government overlap more in terms of powers.

In his first inaugural address on March 9, 1933, Roosevelt made clear that he was ready to do what it took to bring the nation out of the Great Depression. He said that he was ready to make unprecedented moves to combat the unprecedented difficulties the country was facing.

“It is to be hoped that the normal balance of executive and legislative authority may be wholly adequate to meet the unprecedented task before us,” he said. “But it may be that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure.”

Roosevelt asked that Congress give him “broad executive power to wage a war against the emergency” if they couldn’t pass his recommended measures of their own to end the Depression. Congress ended up doing just this, as much of the New Deal consisted of Congress delegating powers to the executive branch to regulate the economy.

“The New Deal produced a presidency that was more institutionally independent of Congress and more politically free of the parties than ever before,” wrote John Yoo, a law professor at the University of California Berkeley. Roosevelt led Congress to create a “vast administrative state.”

For much of the New Deal legislation passed, the executive branch drafted the legislation and sent it to Congress, which approved it after glancing at it — or not looking at all, Yoo said.

One of these bills was the National Industrial Recovery Act and the subsequent National Recovery Administration, which put in place by executive order after the original act was passed. The act suspended antitrust laws and required companies to “to write industry-wide ‘codes of fair competition’ that effectively fixed prices and wages, established production quotas, and imposed restrictions on entry of other companies into the alliances,” according to the National Archives.

The National Recovery Administration made agreements with industries about work hours, pay rates and price-fixing, creating more than 500 codes of fair practice for many industries. The act and the agency did not last long, however. In A.L.A. Schechter Poultry Corp. v. U.S. (1935), the Supreme Court struck them down, saying that the president cannot have unchecked power to do whatever he thinks is necessary to achieve a goal.

This opinion became a driving force behind Roosevelt’s court-packing plan. Much of the New Deal legislation was found unconstitutional, mostly on the grounds of violating the separation of powers between the executive and legislative branches. According to the Supreme Court Historical Society, “no Supreme Court had ever struck down so many laws so quickly.”

In 1936, after winning reelection for his second term in a landslide, Roosevelt proposed increasing the Supreme Court from nine justices to 15. This plan would have allowed Roosevelt to appoint six new justices that would, ideally, vote in his favor, though Roosevelt suggested the additional justices would only serve to lighten the court’s caseload. The pressure campaign is credited with pushing the Court to change their harsh outlook on New Deal legislation, though the plan failed to pass in Congress. For example, the Court upheld the Social Security Act in 1937 and upheld state minimum wage laws after previously ruling against them.

Roosevelt also expanded the president’s social reach through his Fireside Chats, which “connected the White House to ordinary American homes as never before,” according to the White House Historical Society. At the peak of the New Deal era, Roosevelt would hold these chats on the radio twice a year. During these chats, Roosevelt would campaign for and defend his policies directly to Americans. Yoo said this helped make the president a “driving force for positive government,” rather than just a political leader.

Lyndon B. Johnson (1963–1969) Expansion through the Great Society and the Vietnam War

Lyndon B. Johnson became president after the assassination of John F. Kennedy in 1963. His presidency saw a “vast expansion in the role of the national government in domestic affairs” according to the University of Virginia’s Miller Center.

Johnson’s Great Society policy initiatives resulted in legislation like the Civil Rights Act and the Voting Rights Act. They required the national government to become more present in the states, from providing “federal registrars and marshals to enroll African American voters” to implementing federal government-run community action agencies in municipalities to help the poor, a Miller Center article said.

Much of Johnson’s Great Society work came through executive orders. As president, Johnson passed 57 executive orders, side-stepping Congress through extra-legislative policymaking. A lot of his orders had to do with civil rights and affirmative action.

In early August 1964, Johnson announced that the North Vietnamese had attacked U.S. navy ships. Days later, Congress passed a resolution giving the president, in his powers as commander-in-chief, the power “to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression,” giving the president great authority to deploy the armed forces.

This led to the U.S. getting involved in the Vietnam War without a formal declaration of war from Congress. It allowed Johnson to do whatever he saw necessary to respond to attacks against the U.S.

Though it is one of their constitutional powers under Article One, Section Eight, Congress has not formally declared war since World War II.

The resolution was repealed in 1971 as the war’s unpopularity grew, according to the Constitution Center.

Ronald Reagan (1981–1989) Introducing the unitary executive theory

Ronald Reagan’s administration is often described as the first to use the unitary executive theory to expand power. Just one month after his first inauguration, Reagan signed an executive order allowing the president to have oversight over regulatory actions of federal agencies. Before implementing any actions, the order said, agencies must submit a “Regulatory Impact Analysis” to the Director of the Office of Management and Budget, who is appointed by the president, to prove that the regulations would benefit society.

David Schoenbrod, a trustee law professor emeritus at New York Law School, said that Reagan was a selective proponent of the separation of powers, but only when it favored the executive branch.

Reagan fought against the legislative veto, which allowed congressional resolutions (which don’t have to be signed by the president) to overturn executive agency actions, though he did not fight against statutes that delegated legislative power to the executive, such as the Sentencing Reform Act of 1984 that gave a presidentially appointed commission power to establish criminal sentencing rules.

By Lily Goldblatt UConn Journalism

21st century executive power starts with the ‘War on Terror’ and unitary executive theory: expansions of executive power in the 2000s by Presidents George W. Bush, Barack Obama and Donald Trump during his first term.

George W. Bush (2001–2009) The War on Terror and the unitary executive theory

While not the first president to wield his executive power so expansively, George W. Bush, who was born in Connecticut, used it in a way that was unprecedented.

A major turning point came after the Sept. 11, 2001 terrorist attacks on New York and Washington, D.C. Bush used these attacks as the basis for several resolutions and governmental actions that would cause exponential increases in executive power.

Howard Ball, a political scientist and former professor at the University of Vermont, argued in his book “Bush, the Detainees, and the Constitution,” that Bush used two significant resolutions after Sept. 11 to expand his military powers unilaterally.

The first resolution, passed one week after the attacks, allowed for the president to use military force against any entity or person that he believed was involved in the attack. The other was a joint resolution that allowed the president to send armed forces to Iraq in the following year.

According to Ball, with the military force resolution, the administration relied on power that the president is not explicitly given in the Constitution but can argue are necessary for the national interest, to centralize decision-making in  the executive branch.

“As passed and implemented by the Bush White House, the resolution granted Bush the broadest authority to do battle against any nation, organization, or person he determined to have been involved in 9/11 or to be part of planning future terrorist actions against the United States,” Ball wrote.

The USA Patriot Act, a 342-page bill which passed Congress 45 days after the terrorist attacks, gave the executive branch the power to suspend due process and habeas corpus in the case of suspected terrorists or those suspected to be involved with terrorism.

In a Senate Judiciary Committee on the oversight of the USA Patriot Act, Georgetown University constitutional law professor David Cole testified on the constitutional and civil liberty concerns that came with the act.

“Section 412 of the Patriot Act allows the Attorney General to lock up foreign nationals without charges for seven days, and indefinitely thereafter if they are charged with an immigration violation,” wrote Cole. “The law does not require any showing that the foreign national poses a danger to the community or a risk of flight — the only two constitutionally valid reasons for preventive detention.”

Bush used the unitary executive theory to argue for expanded executive power. The theory holds  that “the Constitution mandates an integrated and hierarchical administration — a unified executive branch — in which all officers performing executive business are subordinate to the President, accountable to his interpretations of their charge, and removable at his discretion,” explained Stephen Skowronek, a professor of political and social science at Yale, in an essay for Harvard Law Review.

Political scientists Mark Rozell and Mitch Sollenberger of George Mason University and University of Michigan-Dearborn, respectively, point to the Bush administration’s claim of executive privilege to keep from releasing documents or allowing aides to testify before Congress about his decision to force the resignations of several U.S. attorneys. The U.S. Court of Appeals suggested the case would become moot because subpoenas would expire at the end of that Congress.

Rozell said that Bush employed a strategy of delay and non-compromise with Congress when they attempted to exercise oversight on his executive actions and that this set a precedent for future presidents.

“Presidents after George W. Bush, I think, saw the utility of adopting a kind of no-compromise position in some of these inter-branch conflicts and ultimately winning battles through a process of delay and non-cooperation with those who have compulsory power,” Rozell said in an interview.

Sollenberger said that Bush also expanded his executive power through the use of signing statements, which the president issues when he signs a law passed by Congress to clarify or give his own interpretation of the law.

“Where Bush was aggressive was using these signing statements to provide a unitary executive theory interpretation of the presidency,” Sollenberger said in an interview. “Basically, any kind of restrictions on the executive branch, on the presidency, that were in laws that Congress duly passed, President Bush would consider them to be null and void.”

While Bush was not the first president to do this, Sollenberger said he was one of the most aggressive.

Barack Obama (2009–2017) Continuing his predecessor’s expansion in foreign policy power

Barack Obama campaigned on a promise to stay true to the Constitution in contrast with the Bush administration. Despite this, he also makes unilateral presidential actions in terms of signing statements and military power.

“I think presidential power, there’s no ratcheting down, it’s always ratcheting up,” Mitchel Sollenberger, of University of Michigan-Dearborn, said in an interview. “Democratic presidents have been certainly willing to utilize the increased presidential power and expand it.”

In a 2013 essay for Presidential Studies Quarterly, a peer-reviewed political science journal, Sollenberger and co-authors Mark Rozell and Jeffrey Crouch point to two controversial signing statements at the end of Obama’s first term that expanded executive power.

The first one, attached to an omnibus year-end spending bill, objected to several provisions that he believed violated, “his constitutional duty to supervise the executive branch.” The second one came when he signed the National Defense Authorization Act for Fiscal Year 2012, where he argued that certain provisions in the bill went against his “constitutional foreign affairs powers.”

Signing statements are often objected to by members of Congress because they signal an attempt by the administration to bypass legislative input in a policy debate.

“What the president could not achieve through lengthy negotiations with Congress, he believed he could mandate unilaterally in his signing Statement,” Sollenberger and co-authors wrote.

Sollenberger said Obama expanded presidential power through using drone strikes to kill people in the Middle East, and he was the first president to “kill a U.S. citizen in a non-war setting and double down on it.”

In 2011, Obama ordered the killing of Anwar al-Awlaki, an American citizen living in Yemen who was associated with the terrorist group Al-Qaeda. Two weeks later, al-Awlaki’s 16-year-old son was also killed in a drone strike that officials said was a mistake, according to the National Security Archive, a site by journalists and scholars to check rising government secrecy. Awlaki was the first U.S. citizen since the Civil War to be hunted down and killed without trial by his own government.

At a 2011 congressional hearing on a resolution authorizing limited use of armed forces in Libya, U.S. Rep. Jerrold Nadler, a Democrat from New York, said: “We have been sliding for 70 years to a situation where Congress has nothing to do with the decision about whether to go to war or not, and the president is becoming an absolute monarch. We must put a stop to that right now, if we don’t want to become an empire instead of a republic.”

In 2012, the House Judiciary Committee met to discuss the Obama administration’s abuse of executive power, specifically referencing the recent “fast and furious” scandal in which Obama claimed executive privilege over certain documents sought by the Congressional oversight committee.

“President Obama has to an unprecedented extent failed to ‘take care that the laws be faithfully executed,’” said Rep. Lamar Smith, a Republican from Texas and chairman of the committee. “Instead he, has repeatedly issued blanket waivers that exempt large classes of the population from duly enacted laws.”

In 2014, House Republicans voted to sue the Obama administration for allegedly failing to implement several provisions of the Affordable Care Act.

House Speaker John Boehner led the lawsuit and said that Obama changing the healthcare law without a vote from Congress was essentially Obama trying to make his own laws.

“That’s not the way our system of government was designed to work. No president should have the power to make laws on his or her own,” said Boehner in a statement to the LA Times.

Donald Trump (2017–2021) Using executive power

Donald Trump’s first term saw him continuing the trend of executive power increases seen with his predecessors.

One week into his presidency, Trump issued Executive Order 13769, which imposed a three-month travel ban on immigrants from all majority Muslim countries and stopped refugees from entering the United States for four months.

This order was upheld in the case of Trump v. Hawaii, in which the Supreme Court ruled in a 5–4 decision that “the president has ‘broad discretion’ under the law to suspend entry into the United States of certain classes of individuals when detrimental to the national interest.”

In May 2017, Trump terminated then FBI director James Comey after Comey confirmed that the FBI would be investigating possible Russian interference in the 2016 presidential election.

Trump said that he did not believe Comey was able to “effectively lead the Bureau” in his letter dismissing him.  “It is essential that we find new leadership for the FBI that restores public trust and confidence in its vital law enforcement mission,” he wrote

The Brennan Center for Justice at NYU Law released a statement calling Comey’s termination an assault on the rule of law.

“The president has dismissed the chief law enforcement officer probing whether the president’s advisors colluded with a hostile foreign government to influence our elections,” the Brennan Center wrote.

In January 2020, Trump launched a drone strike that killed Iranian general Qasem Soleimani near an airport in Baghdad. In a report for the United Nations, French human rights activist Agnes Callamard found that “the US had provided no evidence that showed Soleimani specifically was planning an imminent attack against US interests, particularly in Iraq, for which immediate action was necessary and would have been justified.”

During his first term, Trump became the first president to be impeached twice; he was aquitted both times. In December 2019, the House voted to bring charges against Trump after a whistleblower filed a complaint that during a phone call with Ukraine’s newly elected president, Volodymyr Zelenskyy, Trump had attempted to solicit Ukraine to interfere with the upcoming 2020 election.

According to the letter from the whistleblower, White House officials attempted to lock down records of the phone call and White House lawyers directed officials to remove the electronic transcript from the computer system.

The letter said that a White House official called this an “abuse” of the electronic system because “the call did not contain anything remotely sensitive from a national security perspective.”

Trump’s second impeachment regarded the events of Jan. 6, 2021, (of which he was later acquitted by the Senate) in which a mob of Trump supporters stormed the U.S. Capitol building following a rally held to protest the results of the electoral college vote, which, like the popular vote, was won by Trump’s opponent Joe Biden. During the rally, Trump espoused false claims that the election had been stolen and that he had actually won.

Trump allegedly made prior efforts to subvert the election results when he made a phone call to Georgia Secretary of State Brad Raffensperger in which he told him to “find” enough votes to overturn the Georgia presidential election results, according to the House Resolution to impeach.

Dan Stark, Mikayla Bunnell and Lily Goldblatt are UConn Journalism students. This story is republished in cooperation with CT Community News, a service of the Connecticut Student Journalism Collaborative, an organization sponsored by journalism departments at college and university campuses across the state.