Analysis: Many other US presidents have sought to use various theoretical justifications to vastly widen the scope of their presidential powers
The scale of US president Donald Trump's assertion of presidential power has sent shockwaves throughout the system of government and globally. However, it has not been wholly unprecedented for presidents to attempt to vastly widen the scope of presidential powers, with various theoretical justifications emerging to underpin these.
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Just over 20 years ago, the George W. Bush administration used theory first espoused during the Ronald Reagan era to push the envelope of the constitutional limits of the presidency. This was in the context of the post-9/11 anti-terrorism programme, which included detention without charge and transportation to third countries of US and foreign suspects for interrogation, which critics say often involved the use of torture
When faced with opposition to the firing of heads of federal agencies and the passage of a law appointing a special prosecutor to investigate the administration’s handling of the Iran-Contra affair, officials in the Reagan Justice Department began formulating Unitary Executive Theory. This held that the president had direct control over the firing practices of any employees in the executive branch, even those appointed to roles established by Congress under law.
Reagan’s Unitary Executive Theory progenitors cited Theodore Roosevelt's Stewardship Theory of presidential power as a source of inspiration. This thinking was in itself partly inspired by Abraham Lincoln's expansive use of presidential powers during the Civil War. Sometimes called the 'life and limb’ theory, Lincoln rationalised the various expressions of presidential powers which many feel, if wielded in the hands of another president, may have amounted to a dictatorship.
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This was particularly the case with his appropriation of war funding and the suspension of habeas corpus, both actions without first receiving Congressional authorisation. Although he did subsequently seek and receive Congressional assent. Lincoln's argument was that the president had the right to exercise whatever powers he deemed necessary in a time of national crisis, even if these powers lay outside of the president’s constitutional prerogative.
Roosevelt drew inspiration from this to move away from the traditionally passive role adopted by his predecessors towards Congress and implemented an expansive activist policy platform as president. This ranged from the creation of national parks without the go-ahead of the states in which the parks were located, to the manufacture of unrest in the then-Colombian province of Panama as a pretext to assume control over the geographic area in which to build the Panama canal, without Congressional approval. This sounds quite familiar in 2025.
His predecessors believed their powers were limited to those explicitly granted under the Constitution, but Roosevelt argued the president had the right to exercise any power he deemed necessary in furtherance of the welfare of the American people. The exception was cases where the Constitution expressly prohibited the president from exercising a particular power.
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To Roosevelt’s fury, his hand-picked successor, William Howard Taft, reverted to the traditional passive conception of the presidency. Taft argued that ‘the President can exercise no power which cannot be... reasonably traced to some specific grant of power or justly implied... within such express grant as proper and necessary to its exercise.’
Late 19th and early-20th century activist presidents’ conceptions of their powers were expansive for their time. Apart from Richard Nixon, though, most presidents who subscribed to expansionist views usually did not go as far as Trump, particularly in supplanting Congressional control over the appropriation of public funds. Many constitutional commentators anticipate that the cases taken by officials dismissed from independent agencies, such as the chair of the National Labor Relations Board, will lead to Supreme Court cases during which Trump’s team is expected to evoke a ‘strong’ variant of the Unitary Executive Theory.
Trump has also pressed beyond the traditional conception of Unitary Theory as a justification for presidential dismissal of Congressionally-appointed officials in the executive branch by unilaterally cutting Congressionally-appropriated federal funding programmes such as USAID funding and health research grants. Congress explicitly prohibited presidents from unilaterally cancelling Congressionally-approved programmes under the Impoundment Control Act of 1974. This was in response to Nixon’s not-dissimilar attempts to kill programmes he disagreed with by refusing to spend billions of dollars of Congressionally-appropriated funds on programmes in areas from housing to healthcare and the environment.
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In a similar vein to Trump’s proposals, Nixon initiated a "responsiveness program" to reshape the federal workforce to be more ‘loyal’ to the president’s policy worldview. He attempted to make swingeing cuts to sections of the federal workforce and shutter Congressionally-mandated federal agencies such as the Office of Economic Opportunity - which had been created by Congress as part of Lyndon Johnson's Great Society platform - without Congressional approval.
From this perspective presidential power could partly be viewed as a set of received wisdoms agreed upon; presidential attempts to widen scope of their powers can be met with opposition in their own time but if not reversed can become accepted norms that redefine the bounds of executive power.
Writing an accompanying judgement in the striking-down of Harry Truman's nationalisation of steel mills in 1952, Justice Robert H. Jackson set out three factors for assessing the legitimacy of presidential power. These subsequently became a widely-used benchmark for assessing presidential power.
‘First, when the President acts with the authorization of Congress, the President’s authority is at its greatest", wrote Johnson. "Second, in the absence of either a congressional grant or prohibition, then the President acts in a zone of twilight. In this circumstance, Congress and the President may have concurrent authority. The third circumstance is when the President takes measures that go against the expressed will of Congress, his power is at its lowest."
Johnson's comment on the 'zone of twilight' is worth noting: 'an actual test on authority will be dependent on the events and the contemporary theory of law existing at the time.’
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The views expressed here are those of the author and do not represent or reflect the views of RTÉ
