The Presidency Powers Up.

The nation's top job isn't defined by the Constitution alone. It has been shaped by 212 years of experience --and five key events.

The Founding Fathers were a far-sighted bunch, but they didn't see Air Force One coming.

When leaders gathered in Philadelphia in 1787 to draw up a blueprint for the infant United States government, they knew one person had to be in charge. They made the President the Commander in Chief of the military, and gave him the authority to negotiate treaties and appoint ambassadors and judges. But they could not foresee the full array of powers that the President has today, any more than they could anticipate his lavish 747 jet.

Any political office is partly what custom makes it. The presidency has been shaped, over time, by the 42 men who have held it and the issues they have faced. Here are five key moments in the evolution of the job:

SAYING NO TO CONGRESS

President Andrew Jackson (1829-1837), a Democrat, was sick in bed one day in 1832 when he got bad news. Congress had voted to renew the charter of the Second Bank of the United States, a private corporation in which the government kept its deposits. Jackson thought the bank was a "monster" that favored the rich. He declared that the bank was "trying to kill me--but I will kill it!"

The weapon Jackson proposed to use was the veto, a device that lets the President stop a bill passed by Congress from becoming law--unless the veto is overridden by a two-thirds vote in both the House and Senate. The veto was in the Constitution, but its authors had expected its use to be rare. Alexander Hamilton had written in The Federalist, a series of letters urging adoption of the Constitution:

The superior weight and influence of the legislative body in a free government and the hazard to the executive in a trial of strength with that body afford a satisfactory security that the negative [veto] would generally be employed with great caution ...

The first six Presidents had used the veto sparingly, and usually only when they thought a bill was unconstitutional. But not Jackson. He rose from his sickbed and issued a thundering veto message, based not only on constitutional grounds, but also on his view that the bank was "a monopoly ... at the expense of the public." The bank's president called the message "a manifesto of anarchy," and Kentucky Senator Henry Clay tried to use the issue against Jackson in the presidential election. But the people stood with Jackson, and he made good his threat to kill the bank. In broadening the veto, Jackson left his successors a potent tool with which to oppose the will of Congress.

THE POWER TO ACT QUICKLY

The Constitution gives only Congress the power to declare war. But Congress was not in session in April 1861, when the Civil War broke out as Southern states attempted to leave the Union. President Abraham Lincoln (1861-1865), a Republican, thought it was his duty to keep the nation whole. Without waiting for a legislative OK, he called for 75,000 volunteers to put down the rebellion, declared a blockade of Southern ports, and spent funds from the treasury--none of which the Constitution explicitly said he could do.

He also kept John Merryman in jail. Merryman was a Marylander who had burned bridges and cut telegraph wires while leading a pro-Southern cavalry unit. Lincoln's troops arrested Merryman, whose lawyer then demanded a writ of habeas corpus--an order to produce the prisoner in court to justify his arrest. The writ is a cherished feature of American freedom, but the Constitution says it can be suspended in "cases of rebellion or invasion," and Lincoln had authorized his generals to suspend it in Maryland. Chief Justice Roger B. Taney, hearing the case in circuit court, ruled that only Congress could suspend habeas corpus. But Lincoln ignored the ruling, and when Congress met in July, he explained why:

... as the provision [to allow suspension of the writ] was plainly made for a dangerous emergency, it cannot be believed the framers of the [Constitution] intended, that in every case, the danger should run its course, until Congress could be called together ...

Congress retroactively approved the steps Lincoln had taken, and his argument carried the day. The plain fact was that, as communications became ever faster, national problems increasingly demanded the kind of quick action that couldn't wait for Congress to meet and vote. The practical result: more power for Presidents.

THE PRESIDENT AS REFEREE

Presidential power slumped after the Civil War, as Andrew Johnson (1865-1869), who had been Lincoln's Vice President, battled Congress over how to treat the defeated South. He was impeached--charged with criminal conduct--and almost removed, purportedly for firing a Cabinet member, a power that Presidents had long held. A series of weak Presidents followed, until Theodore Roosevelt (1901-1909), a Republican, smashed that mold.

"TR" saw himself as a "steward of the people." When 50,000 coal miners went on strike with winter coming on in 1902, he called labor and management to the White House to negotiate. The mine owners wouldn't budge, so Roosevelt threatened to send in federal troops to operate the mines. The ploy worked; the two sides agreed to a compromise. Since then, the nation has looked to the President when strikes threatened the public welfare.

"I did not usurp power," Roosevelt later recalled, "but I did greatly broaden the use of executive power."

FDR GOES TOO FAR

Scholars say the modern era of presidential power really began, however, with Teddy's distant cousin, Franklin D. Roosevelt (1933-1945), a Democrat. To combat the Great Depression, he created a host of new government agencies, and injected the presidency into economic decision-making as never before. With a series of "fireside chats" on radio, FDR also pioneered direct communication with the American people, a tool he used masterfully.

But in 1937, the head of the government's executive branch tried to change the rules for another branch, the judicial. The Supreme Court had found several of the President's programs unconstitutional, and he thought its members were out of touch. To dilute their power, Roosevelt proposed that a new Justice be added every time a sitting Justice reached age 70 and did not retire. This was too much for Congress, which rejected the plan to "pack" the Court. There were limits, it turned out, to what even a popular President could get away with.

WHO DECIDES ON WAR?

In August 1964, the U.S. Navy reported that one of its destroyers had been attacked by a North Vietnamese torpedo boat in an area known as the Gulf of Tonkin. At the time, U.S. advisers were helping non-Communist South Vietnam fight Communist North Vietnam. President Lyndon B. Johnson (1963-1969), a Democrat, asked Congress for the power to take action against North Vietnam, and got it in the Gulf of Tonkin Resolution. He used that power to send U.S. troops to the far-off conflict--the total would eventually reach 543,000--without Congress's declaring war. Complained Professor Alexander Bickel of Yale Law School:

If this decision was not for Congress under the Constitution, then no decision of any consequence in matters of war and peace is left to Congress.

In 1973, after U.S. troops were taken out of Vietnam, Congress tried to regain some lost power with the War Powers Resolution--passed over a veto. It said a President could use the military for only 60 days without Congress's permission. But Presidents have ignored the law, and experts doubt it could withstand a court challenge.

The prestige of the presidency has been tarnished by scandals in recent years. In 1974, to avoid almost certain impeachment and conviction for obstructing justice, Richard M. Nixon (1969-1974), a Republican, became the first President to resign. In 1999, Bill Clinton (1993-2001), a Democrat, was impeached for lying under oath and obstructing justice, but not convicted.

Critics say the presidency is still a far larger office than the Founding Fathers intended. The best answer to them may lie in an observation once made by Nixon's chief of staff. "Once the toothpaste is out of the tube," he said, "it's hard to get it back in."

PRESIDENT VS. CONGRESS: THE VETO

Congress passes a bill and
the President says "No
way!" It's called the veto,
and dividing U.S. history into
three roughly equal periods
shows how its use has grown
with a feistier presidency.
In the early years, Congress
overrode almost 12 percent
of all vetoes with a two-thirds
majority; in modern times,
that rate has been 4 percent.

                                         Veto override rate:

Washington through Buchanan         52         11.54%
(1789-1861)

Lincoln through Hoover           1,082          4.07%
(1861-1933)

F.D. Roosevelt through Clinton   1,416          3.95%
(1933-2001)

SOURCE: Calculations by Upfront from Senate Library data.

Note: Table made from bar graph.

FOCUS: How the U.S. Presidency Evolved Into the Powerful Office It Is Today

TEACHING OBJECTIVES

To help students understand how Presidents, responding to moments of crisis, have expanded the powers of their office beyond those defined in the Constitution.

Discussion Questions:

* When a constitution specifies that an officer has certain powers, does that mean he or she has only those powers?

* In 1970, while the U.S. was still fighting in Vietnam, Congress repealed the Gulf of Tonkin Resolution. What accounts for that attempt to rein in the President's war-making authority?

* How might taking powers back from the President be like putting toothpaste back in a tube? How easy would it be, for example, to limit future vetoes to bills considered unconstitutional?

CLASSROOM STRATEGIES

Critical Thinking: You may wish to cite two concerns the Founding Fathers had when they designed the presidency: (1) Experience with the British monarchy in colonial days had made them wary of executive tyranny; (2) The executive under the Articles of Confederation, in the first years of independence, had proved too weak. Ask: What might the Founding Fathers say about the presidency today? Does the President have too much power?

Jackson: Ask why Jackson was able to prevail in the bank veto. Was it because he had the people behind him?

Lincoln: How valid was Lincoln's argument that the danger of rebellion could "run its course" in the time it might take Congress to act? What precedents did he set?

Theodore Roosevelt: Why did the miners and owners agree to meet TR? Was it the President's job to keep people from getting cold in winter? (Students may research an outgrowth of Roosevelt's exercise of power, the Taft-Hartley Act, which lets the President impose a "cooling off" period in strikes that threaten national emergencies.)

Franklin D. Roosevelt: FDR had carried all but two states in the 1936 election. Why did a President with such strong popular backing not succeed in reshaping the Court? (You may point out that soon after FDR's proposal failed, the Court became more pro-FDR due to retirements anyway.)

Lyndon Johnson: The fear of Communism helped to make Congress compliant in 1964. The Tonkin Gulf Resolution got two no votes in the Senate and none in the House. See its text at www.isop.ucla .edu/eas/documents/tonkin.htm