Professor Saikrishna Prakash isn’t the first academic to observe that the modern presidency has become King Kong-like in its outsized reach. But as a scholar who has spent years studying how the office was originally conceived, he may be uniquely positioned to understand just how far we’ve come.
In his new book, “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers,” Prakash explains why the executive branch’s power has swelled in recent decades, why he thinks that is a problem and how Congress might respond to defend its authority.
The book was published in April by the Belknap division of Harvard University Press.
The idea that presidents make law on a regular basis, rather than merely executing the will of Congress, per the Constitution, is one fundamental change in the office of the presidency.
“Sheriffs don’t go around talking about changing the law, because they can’t,” Prakash said. “Presidents, however, run on a platform of changing the law. And once they get into office, they change the law one way or another. If they can’t get legislative reform, they take unilateral acts in furtherance of their policy agenda.”
In the book, he gives two cases in point. President Donald Trump shifted money from several federal agency accounts to help pay for the border wall he promised voters. His predecessor, President Barack Obama, established through executive action the Deferred Action for Childhood Arrivals program, or DACA, thereby providing relief to immigrants unlawfully brought here as children.
“Both presidents found creative ways around the congressional roadblock,” Prakash said of the controversial moves.
He added, “The constitutional powers and duties of the presidency change as presidents repeatedly undertake transgressive acts. As those precedents accumulate, executive branch lawyers cite those actions as a basis for future action.”
Prakash also examines how presidents acquired power to declare war — a power that the Constitution reserved for Congress — ostensibly to mount a quick emergency defense but obtained by initiating conflicts overseas over the course of decades.
Other topics he looks at include foreign affairs and the presidential oath.
Prakash said the idea that a president betrays the oath of office by side-stepping the explicit language of the Constitution “is a powerful argument only if you think presidents can’t change the Constitution by their acts. But, in fact, presidents are systematically reconstructing their offices as they try to accomplish their personal and policy agendas.”
Prakash chose to use the idea of a “living presidency” in the title as a contrast to the idea of a “living Constitution,” which progressives have used to explain how constitutional meaning ought to change with the times.
The living Constitution theory becomes problematic, he said, if one understands the president to be an important actor, if not the single-most-important actor, when it comes to constitutional change.
“As presidents change their office, they work to alter the Constitution more generally,” he said. “Liberals or progressives tend to favor the idea of a living, evolving Constitution, but they tend to blanch at the idea of an evolving presidency. Part of my hope in writing the book is to get people to wrestle with that apparent contradiction.”
In the final chapter, Prakash offers a number of possible ways to rein in presidential power. Most of these measures require that Congress occasionally move beyond partisan affiliations.
“The Living Presidency” is a bookend to Prakash’s “Imperial from the Beginning: The Constitution of the Original Executive.” The author of more than 75 law review articles and a frequent commentator on the presidency who has testified before Congress, Prakash serves as the James Monroe Distinguished Professor of Law and the Paul G. Mahoney Research Professor of Law.
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