The Framers’ Presidency and Ours

The Constitution’s Framers believed that a government of separated powers was least likely to threaten the liberties of the people. Accordingly, the government they created was a tripartite structure—a bicameral legislature (a Senate and House of Representatives) to make the laws, a president to enforce or execute the laws, and a judicial system headed by a Supreme Court to interpret the laws.

Initially, Congress was expected to be the most important of the three powers, and for that reason, the Framers focused most of their attention on the legislative powers of Congress, providing specific powers and imposing specific restrictions on the two legislative bodies, the House of Representatives and the Senate.

The presidency and the judiciary, on the other hand, received much less attention, and their authorities were described, respectively, simply as “executive Power” for the president and “judicial Power” for the court system. Although the president has some additional important authorities, such as the appointment of other government officials, these generally require the consent of the Senate. The only other executive powers of wide-ranging significance are his role as commander-in-chief of the armed forces and the statement that “he shall take care that the laws be faithfully executed.”

Over time, however, the Supreme Court has substantially enhanced the authority of the president, well beyond what the Framers seem to have intended. Most recently, this was made clear in a 5-4 decision by the Supreme Court in 2000, called Seila Law v. CFPB. Supreme Court decisions specifically on the president’s powers are extremely rare—perhaps a dozen over the last 250 years. Seila Law is one of those cases. There, the Court allowed the president to take control of an independent regulatory agency created by Congress and known as the Consumer Financial Protection Bureau (CFPB). The Court’s holding was bolstered by this language:

The Framers deemed an energetic executive essential to “the protection of the community against foreign attacks,” “the steady administration of the laws,” the “protection of property,” and “the security of liberty.” Accordingly … they gave the Executive the “decision, activity, secrecy and dispatch” that characterize the proceedings of one man.

This is entirely accurate. The Framers certainly wanted a president who could act with dispatch and protect the country in time of war. In Seila Law, however, the Court went well beyond this wholly acceptable description of the president’s powers:

Unique in our constitutional structure—the Framers made the president the most democratic and politically accountable official in Government. Only the president (along with the Vice president) is elected by the entire Nation. …

The resulting constitutional strategy is straightforward: divide power everywhere except for the presidency, and render the president directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the control of the elected president.

This description of the president’s powers justified extraordinary executive powers for a majority of the Court, but it goes too far. The presidency is not the most democratic and politically accountable official in government. Congress is at least as accountable, and far more representative of the American people as a whole. The president isn’t even elected directly by the people; he is elected through an Electoral College system, and in fifteen cases since 1844—including 1992,1996, and 2024—the College has elected a president who had not received a majority of the popular vote.

The Court’s reading of the Framers’ intentions suggests that the Framers wanted the president, acting unilaterally, to use his presidential powers as though he were a tribune of the people, not just as the official responsible for enforcing or executing the laws. But this idea cannot be found in the accounts of how the Constitutional Convention created the presidency.

A delegate to the 1787 Constitutional Convention, which drew up what is now the US Constitution, would find it remarkable that today’s president might have such authority. That delegate would remember that there was no consensus on the nature of the presidency—or even whether to have a president who was a single individual rather than an executive council—until the very end of the convention.

Then, something called the “Committee on Postponed Parts” was charged with considering all the issues that hadn’t been resolved during the three months the delegates had been debating the Constitution. One of those unresolved issues was the presidency. The delegates generally believed that a chief executive was necessary to enforce or execute the laws, but many of them were wary of a single person elected by the people. They feared “an elected monarch.” The major counter-proposals were an executive council and a single person elected by Congress instead of popularly.

The committee reported on September 7, a few days before the convention’s adjournment, proposing that the president would be a single person, not a council; elected by the people, indirectly through an electoral college; with a four-year term and the possibility of re-election. The Committee’s decision became the Convention’s decision, probably because the debate process had simply run out of time. But compared to Congress, the president still had only the authority to execute the laws, to be the commander in chief in wartime, and to “take care that the laws be faithfully executed.” Congress itself had eighteen specific powers, such as laying taxes, coining and borrowing money, declaring war, and raising and supporting armies.

James Madison’s extensive notes on the Convention’s proceedings also do not support the Supreme Court’s view of the presidency as an inherently powerful figure described in the Seila Law decision. Certainly, it was necessary to have someone to execute and enforce laws, and a single person would be better for the “activity, secrecy and dispatch” that the Court cited. But there is nothing at all in Madison’s notes, or the newspaper articles known as the Federalist Papers—written largely by Madison and Alexander Hamilton—to the effect that the presidency was an inherently powerful figure because he was in the Court’s view “the most democratic and politically accountable official in Government” or “directly accountable to the people.”

No, the president had an important job—to execute the laws made by Congress and interpreted by the judiciary—but not to unilaterally govern the country.

Thus, as James Madison, writing as Publius, wrote in Federalist #70:

Those politicians and statesmen who have been the most celebrated for the soundness of their principles, and for the justness of their views, have declared in favour of a single executive, and a numerous legislature. They have, with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand; while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people, and to secure their privileges and interests.

The Supreme Court’s view in Seila Law is the very opposite of this. It sees the presidency best positioned to conciliate the confidence of the people and to secure their privileges and interests. This runs counter to the underlying theory of the separation of powers—expressed by Madison—which sees the president as an expeditious actor, but Congress as the entity to address the privileges and interests of the people.

Some may argue that the United States, having risen to the top among all the democratically elected nations of the world, should be led by a powerful president who is no longer burdened by waiting for a contentious Congress to make up its collective mind. This view is certainly the result of the many wars of the twentieth century and the dangers of today’s world. The president, as commander-in-chief, might be best suited for these challenges. But the delegates at the 1787 Constitutional Convention did not think they were creating a president who would rule a civil society.