After reading the Declaration of Independence, it is easy to wonder why the Founding Fathers gave us an imperial presidency. The Declaration documents no fewer than twenty-seven grievances about King George III’s abuse of power. But the Constitution was written more than a decade later after an unhappy experience with state constitutions that had severely restricted executive authority and greatly expanded legislative authority.
The original thirteen states had denied their governors the traditional prerogatives of kings, including the power to appoint government officials or to veto legislation. The states also created councils that were elected by the legislatures and that shared the executive duties with governors. Governance by very powerful state legislatures turned out to yield its own form of tyranny, a democratic despotism characterized by unjust laws, constantly changing laws that bred confusion and instability, and legislative interference with judicial decisions.
While the experience with state governments exposed the problems with unrestrained legislative bodies, the experience with national government under the Articles of Confederation demonstrated the need for a strong executive authority. Under the Articles, there was no real executive, only a series of congressional committees. As Eric Posner and Adrian Vermeule have observed, the “absence of a powerful executive hampered the war effort, limited the ability of the national government to respond to internal rebellions, and put the American people at a disadvantage in commercial disputes with foreign nations.”
The framers compensated for the potential for legislative tyranny by weakening the legislative branch. As indicated in Federalist 51, the legislative power would be divided between a House and Senate. In addition, the two chambers would be organized differently, with distinct compositions and separate responsibilities, so as to keep them as disconnected from each other as possible. And indeed, the two branches of Congress have evolved over time with different ways of operating and a good deal of independence from each other.
At the same time that the framers divided legislative power to prevent a dominant Congress, they tried to prevent a weak executive by granting the president substantial powers that were undivided. While presidents would share many of their powers with Congress, they would wield the executive branch’s share of the power as a unitary executive. Presidents alone would bear responsibility for the implementation of legislation. They also would negotiate treaties, serve as commander in chief of the military, grant pardons, and nominate judges and senior executive branch officials. And they were given a power to veto legislation passed by Congress.
In the view of the Framers (though not the Antifederalists, who worried greatly about the presidency evolving into a monarchy), the Constitution would right the imbalance between the legislative and executive authorities that existed under state constitutions and the Articles of Confederation. With the passage of time, however, it has become clear that the Framers greatly misjudged the balance of power between the executive and legislative branches.