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We’ve Gotten Presidential Power All Wrong

Here’s what the president can actually do — and what the president can't

When Khizr Khan stood up at the Democratic National Convention and held up his copy of the United States Constitution — a symbol of his inalienable rights as an American citizen — it was a powerful rebuke to Donald Trump’s fanning of the flames of intolerance. Perhaps less obviously, it was also a reminder of what our country’s most important document says that Trump, or anyone, could — and couldn’t — do as president.

Here’s what the president of the United States can do: nominate Supreme Court justices, veto bills, grant pardons, command the armed forces, and receive foreign ambassadors. Here’s what the president of the United States can’t do: run the country by themselves, bully other countries into doing their bidding, or build a god-dang wall. It matters that we clarify this, because we’ve gotten to a point where the presidency — and the expectations the public has for it — has gotten out of hand. When every president is a disappointment, maybe we’re the problem.

Presidential power is determined by the Constitution, and that document’s “separation of powers” clause — the thing that dictates the limits of Congress, the Supreme Court, and the presidency — is intended to ensure that the president can’t become a de facto monarch. A president can nominate a Supreme Court justice, for example, but that individual has to be approved by Congress before sitting on the Court (a process we’re seeing impeded by the Senate right now). A president can veto a bill, but Congress can override that veto. And a president can take an executive action, but the Supreme Court can declare it to be unconstitutional. Ever since the Great Depression, though, as America’s problems have gotten bigger and more immediate, America’s desire for a stronger, more robust presidency has also grown.

The first American national crisis of the 20th century was also the moment in which the presidency gained new prestige. The stock market crash and mass deflation of 1929 pulled the U.S. economy into the Great Depression. Then-President Herbert Hoover refused to take action at the federal level, however, and in response, homeless Americans camped out in “Hoovervilles,” using “Hoover blankets” — old newspaper — for bedding. The message from the public was clear: Americans didn’t want a president who would just maintain the status quo. With unemployment at 23 percent, they wanted a president who would take drastic action, Constitutional constraints be damned.

So they elected Franklin D. Roosevelt, who was a lot more ambitious than his predecessor. Roosevelt attempted to expand the Supreme Court from nine justices to 15, moved an emergency banking bill through Congress so quickly that many who approved it hadn’t even read it, issued more than 3,500 executive orders, and introduced the Public Works Administration — an enormous project that cost nearly as much as the entire federal budget under Hoover.

“Roosevelt [was] not just trying to expand the size of the federal government at the expense of the enumerated powers,” said Charles C.W. Cooke, editor of National Review Online. “He [was] also trying to invest a lot of power in the executive branch and in unelected bureaucracies that are overseen by the executive branch.” In short, FDR expanded the size and scope of presidential power to a degree that was previously unimaginable — and then got reelected three times. He was what the voters wanted: someone who would take charge and make change. In Roosevelt’s fourth election, he won 36 states.

FDR was the first in a line of presidents who were given not only the power of the presidency, but the power of the American perception of the presidency: If we vote for you, you have a responsibility to fix our problems — even if, legally, you can’t. This legacy is seen in presidents like Richard Nixon and Ronald Reagan. In response to voters’ concerns about youth drug use, Nixon launched the “War on Drugs,” targeting minorities and the left with focus and force. He virtually shut down the U.S.-Mexico border (“Operation Intercept”) so that every single car crossing could be searched for marijuana, and created the federal Drug Enforcement Administration, which now employs more than 10,000 people. To combat communism, Reagan launched a covert CIA-led war in Afghanistan to overthrow the country’s left-wing government, and (in violation of an amendment to the 1982 Defense Appropriations Act) sold weapons to Iran in order to fund the Contras, an anticommunist rebel group fighting the Nicaraguan government.

In 2008, then-nominee Barack Obama said that his nomination would be remembered as the moment when “the oceans began to slow” and when the United States “restored our image as the last, best hope on Earth.” Obama recognized the obvious: A president has to promise the impossible in order to win elections. That put him in an unenviable position, as it would any leader: In order to win, they have to say they will end racial inequality, or eliminate abortion, or create zero unemployment, and when they inevitably don’t, they’re a disappointment to voters, one that can only be rectified by a new, even more powerful president promising to do what their predecessor couldn’t or wouldn’t, to win where everyone else has lost. Someone like Donald Trump.

Trump is not interested in working with Congress or in recognizing the enumeration of powers. The Constitution is a set of rules that, like federal housing regulations, he would simply ignore — because the voters, in a sense, told him he could. In presidential elections, those same voters have said again and again that presidential promises that don’t make legal or constitutional sense are still worth making because they get presidents elected. Someone like Donald Trump listens when American voters — particularly white, working-class voters — say, “The country is doing better for other people, but not for me. Someone make this better!”

And Trump responds, “I will.”