Scope of Executive Power: Part 1

In recent weeks, there has been renewed debate over the scope of executive power and the extent of the president’s authority under the Constitution. Some argue that the president has broad control over the executive branch, while others contend that this power is more limited. But what does the Constitution actually say about executive power, and how has this question been interpreted over time?

Media Asset
In a new, We the People podcast, legal experts discuss if the president is acting within the American constitutional tradition, or if recent events involving the consolidation of executive power represent a departure from our history and tradition.

We recommend sharing the following clips from the podcast:

5:40-8:44: We don’t yet know what kind of moment we’re in regarding executive power and the debates surrounding the rule of power for the executive. Not much has reached SCOTUS, and Congress may not take action, so this is territory that we are still figuring out. There are, however, two distinct questions at play, and the constitutional approaches to both may differ.

27:58-32:20: The constitutional system is designed for conflict, especially between the branches, and they were intended to constrain each other through healthy tension. In this clip, Yuval Levin argues that “Separation of Powers has been replaced by a Separation of Parties.” He discusses the power of Congress to act as a check on executive power, but explains how Congress has potentially neglected that power in the past.

Engagement Questions

1. What powers does the Constitution explicitly give to the president? What powers are implied?
2. Give an example from history in which there was tension between the branches of government. What happened? What were the checks and balances in place that contributed to this example?
3. What role does the judiciary play in shaping presidential power?
4. How has the scope of executive power changed over time? What historical events have influenced this change?
5. What are the key checks on executive power, and how do they function?

Student Choice Activity

1. Read Article II of the Constitution, then choose excerpts from either the Federalist Papers or the Youngstown Sheet & Tube Co. v. Sawyer case. Where do you see overlap between the two sources? Highlight, annotate, or use a method of your choosing to visually show the connections between the two texts.
2. Interactive Case Study: Students will put a real executive power controversy on “trial.” They will introduce the roles the president, congressional opposition and support, Supreme Court justices, and the media. Students then have the option to host a mock trial, write a ruling, or create a news broadcast reporting on the case.
3. Create a timeline that showcases the changes in executive power throughout history. Pick at least five different presidents, representing multiple political parties, and provide insight into if they expanded or constrained executive power during their time in office. Think about, too, the historical, social, and economic contexts in which they served.
4. Political Cartoon or Meme Gallery: Students create a visual representation of executive power conflicts. They will include a summary explaining how their artwork connects to constitutional principles.

Historical Foundations Through Primary Sources
Looking for primary sources related to executive power? Check out:

1. Article II of the Constitution
2. Interpretation of the Appropriations’ Clause on the Interactive Constitution
3. Alexander Hamilton’s writings on the executive’s role in Federalists 68, 70, and 72 (1788)
4. President Harry Truman’s attempt to seize the steel mills in Youngstown Sheet & Tube Co. v. Sawyer (1952)
5. Woodrow Wilson, Constitutional Government in the United States, (1908)

Develop Constitutional Thinking Skills With Current Events

1. How Powerful is the President? (We the People podcast)
2. Will a Supreme Court precedent limiting presidential removal power survive? (Constitution Daily blog post)
3. President Trump’s Executive Orders (We the People podcast)
4. When can the president use executive orders? (Khan Academy Constitution 101 student course video)
5. What is the administrative state? (Khan Academy Constitution 101 student course video)
6. What does Article II say about the powers of the president? (Khan Academy Constitution 101 student course video)
7. How does the modern president compare to the founders’ vision? (Khan Academy Constitution 101 student course video)
8. How has the president’s power grown over time? (Khan Academy Constitution 101 student course video)