The Pendulum of Power

By Kevin Yang

Many presidential scholars liken the development and expansion of executive power to the undulating swing of a pendulum; during times of crises, the “pendulum” of presidential power swings to new heights, and during other times, the “pendulum” swings to Congress. While this model of power may comfort those who fear the onset of a totalitarian leader, there is one detail crucial to the accuracy of such a model – that the “pendulum” of power is constantly, and inevitably, rising. The “pendulum” may ebb and flow between the executive branch and Congress during different times, but both the executive and Congress have, over several centuries, increased their influence over almost all domestic and foreign affairs. The waves may rock back and forth, but the tide is rising.
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Every president comes into office with a vision of America. Although these goals have not always been achieved – to the delight of some, and the dismay of others – the president’s authority remains a powerful, yet limited, executive branch. A president’s authority is confined by the enumerated power in Article II of the Constitution; these powers include the power to appoint judges and federal bureaucrats, the power to make treaties, and the power to veto. The president also bears some informal powers, either implied from clauses in the Constitution or derived from the inherent symbolic nature of the presidency, which aid him (or her) in carrying out his (or her) agenda. The founding fathers, no doubt, feared the creation of a overly powerful executive; their formation of the weak Articles of Confederation is strong evidence that they had intended for the executive to be limited. Yet, as we evaluate the executive branch in retrospect, has the power of the executive branch really been confined? Nowadays, presidents, and the executive branch, have more power than ever before. The power to wiretap. New executive, cabinet-level departments to expand the reach of the federal government. Have the checks and balances set forth in the Constitution failed? Or have the circumstances of the constantly evolving era necessitated a new, more commanding presidency? The answer is up for heated debate.

Power, paradoxically, is something so intangible, yet has such tangible, real consequences. Richard Neudstadt, one of the nation’s most premier presidential scholars, describes power as “a function of personal politics rather than of formal authority.” This description of power has interesting implications on the expansion of presidential power: it means that the power of the president differs from president to president. However, the power of the president to usurp power given the proper circumstances has undoubtedly grown over time. Most presidential historians note the Bush presidency (George H.W. Bush) as a paragon of how presidential authority has increased.

Perhaps the most defining moment of the Bush presidency is 9/11. The September 11th, 2001 terrorist attacks on the World Trade Center and Washington D.C. were truly traumatic and critical events in the 21st century. Times of crises, especially those related to national security, often act as catalysts for the presidential power grab. The 9/11 terrorist attacks provided Bush with a perfect opportunity to expand presidential power under the notion of “protecting national security.” Quickly following 9/11, the Bush administration facilitated the enactment of the Patriot Act, the creation of Guantanamo Bay and the formation of the Department for Homeland Security. The Patriot Act greatly expanded the executive branch’s power to invade on the privacy of citizens by allowing the government to wiretap phones and conduct more searches of records. The Department for Homeland Security is now the largest cabinet-level department. With 9/11 as a catalyst, the Bush administration significantly increased not only the scope of executive power but also the size of the executive branch.

Representative Harry Waxman of California published a report on the secrecy in the Bush Administration. The report confidently concluded that the Bush administration had greatly expanded the power of the executive and also had made the presidency more secret. With regards to secrecy of public records, the report concludes that:

“The President has expanded the classification powers of executive agencies, resulting in a dramatic increase in the volume of classified government information.”

“The Administration has expanded its authority to conduct law enforcement operations in secret with limited or no judicial oversight…”

By increasing the capacity for the executive branch to operate in secret, the Bush administration has effectively reduced the ability for the checks and balances set forth in the Constitution to work. If the operations of the executive are not known, how can Congress properly employ its checks on the president?

Clearly, the power of the president and the executive branch has dramatically changed since the time of the founding fathers. Given the historical trends that have demonstrated that the pendulum of power has constantly risen, the United States has important fundamental concerns about governmental power to address. While the modern era may require a new type of president, the founding father’s sagacious fears over a totalitarian executive have not faded.