How To Check a President
The U.S. president’s authority has grown so expansive that it’s time for Congress to rein it in, Professor Saikrishna B. Prakash argues on the latest “Common Law,” a University Virginia School of Law podcast.
In a discussion based on Prakash’s new book, “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers,” the show covers how the executive’s powers have evolved and what should be done about it.
With a presidential election on the horizon, “it’s the perfect veil of ignorance — no one knows who the next president will be,” Prakash says. “This is the only time where you can actually think about possibly reforming the presidency.”
This season of “Common Law,” hosted by Dean Risa Goluboff and Vice Dean Leslie Kendrick ’06, is focusing on times when law changed the world.
Prakash’s first book, “Imperial from the Beginning: The Constitution of the Original Executive,” details how the presidency had the building blocks to be a more powerful role from the start.
“Compared to the anemic state executives and the anemic [Continental Congress] executives, the presidency was designed to be stronger,” he explains on the show. Presidents didn’t immediately seize their additional powers, though. The election of Andrew Jackson in 1828 was a key turning point.
The idea of having a popular mandate to enact an agenda was not part of the original Constitution, but Jackson helped the idea become accepted.
“In the first couple of elections, [many] of the [presidential] electors were selected by [legislatures] and not through the popular vote,” Prakash says.
Jackson, however, deeply believed in the popular vote as a mechanism for choosing presidents and insisted he was the only person who represented the entire United States — a powerful claim no other institution could make.
Another key change happened in the 19th century, when presidential candidates started making campaign promises, which led to candidates running on platforms promising legal change. United under a platform, members of Congress in the same party are likely to support the president’s legal stretches to advance a joint policy agenda.
“Sometimes the president’s ambition and the members of Congress’ ambition dovetail,” Prakash says. When that happens, the members feel “there’s no need to check the president; in fact, they’re going to defend him.”
Prakash and the hosts also discuss how the president’s foreign affairs and war powers evolved over time, the difficulty of overcoming a presidential veto and how Congress might check the president’s powers. His book offers a “baker’s dozen” of suggested reforms, from a new War Powers Act to building up Congress’ institutional capacities.
Prakash pins down one of the principal reasons he believes presidents have been able to acquire new constitutional powers: “If you have informal constitutional change, you will not make use of the formal system.” He argues that the idea of a “living Constitution” has greatly contributed to a living and imperial presidency.
“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify and other popular places to listen to podcasts, including devices like Amazon Alexa. This episode produced by Sydney Halleman and Robert Armengol.
For more on the show, visit commonlawpodcast.com or Twitter at @CommonLawUVA.
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