In the summer of 1787, the young American republic was in a moment of crisis. After eight years of wars to gain independence from the British, the American experiment, despite its high-minded goals, was close to failing. The United States’ first form of government, the Articles of Confederation, had left the thirteen states largely to manage their own affairs as quasi-independent states. The dispersion of power among the states had led to a variety of issues, including dueling foreign policies between the states; each state having its own currency, which made trade between the states and with foreign nations nearly impossible; an inability of the central government to impose taxes to pay off war debts; a reliance on state militias rather than a professionalized military controlled by the central government; and a lack of executive leadership in the central government.Footnote ¹

Realizing these issues posed an existential threat to the United States, twelve of the thirteen states sent delegates to Philadelphia to devise a new government. When the delegates arrived in Philadelphia, they brought with them not only their experiences in governing under the Articles of Confederation, but a deep well of knowledge in Enlightenment-era thinking on political rights and government. Among the most formative thinkers in devising a new constitutional government were John Locke, Thomas Hobbes, and Baron de Montesquieu.

The philosophy of Locke and Hobbes was focused on a “social contract” between the government and the governed. But the two thinkers differ in how they reach their conclusion. For Locke, the “state of nature,” or how a people-centric society would be in the absence of government, is one of natural freedom and equality.Footnote ² This view, articulated famously in Locke’s Two Treatises on Government (1689), is grounded in his belief that humans, as products of the creation of God, have an obligation to obey the commandments of God that inherently will lead to freedom and equality. However, Locke recognized that there are also bad actors in the world, and these bad actors necessitate a government that can protect the “natural rights” of man, including the rights of life, liberty, and property.Footnote ³ In Locke’s view, the social contract between the government and the governed was the government protecting natural rights in exchange for the governed ceding some autonomy to the government. However, Locke believed that this social contract could be broken, and when it was, the governed had the right to rebel against the government and create a new one that would better uphold the social contract.Footnote ⁴

The fingerprints of Locke’s philosophy are apparent throughout early American history. The catalyst for the Revolutionary War, excessive taxation without colonial representation in Parliament, was viewed as a violation of Locke’s social contract. His views were espoused throughout the Declaration of Independence. Additionally, the lack of a strong central government, under the Articles of Confederation, represented a Lockean fear that strong centralized executive power would inherently lead to a break of the social contract.Footnote ⁵

In contrast to Locke, Hobbes, who wrote his famous book Leviathan (1651) decades earlier in the aftermath of the English Civil War, viewed the state of nature in much darker terms. He also saw the state of nature as one of individual liberty, and indeed he was the first political philosopher to recognize that liberty, and the ability of people to enter a social contract. But for Hobbes, the natural state of society was one of war and death as individuals competed for limited resources. Hobbes’s social contract, in contrast to Locke, was focused on ridding society of its natural state and imposing civil order so people can live without violence and fear. To achieve this social contract, Hobbes advocated for a strong government whose power would enforce societal order and keep society from reverting to a life of war, scarcity, and early death.Footnote ⁶ The individual liberty inherent in the state of nature thus is voluntarily given up to the government – preferably an absolute monarchy – and citizens have no right to revoke that contract by rebelling against their ruler.

Finally, the writings of Montesquieu informed the Founders’ views on the separation of powers. In his treatise The Spirit of the Law (1748),Footnote ⁷ Montesquieu argued that the best way to prevent governmental tyranny was to divide the power of government among a legislature, an executive, and the courts. Montesquieu’s belief in the separation of powers was based in the ideas that placing the power to write and enforce the laws in the same hands would lead to tyranny, and that uniting the power to enforce and interpret the laws would also lead to tyranny.Footnote ⁸ As a result, these three basic functions of government: the powers to write, enforce, and interpret the laws, should be split among three independent branches of government that are self-interested in protecting and preserving their own powers. The influence of Montesquieu’s thought is readily apparent in the careful balance of power outlined in Articles I, II, and III of the Constitution.

But before the Constitution was ratified in 1789 came the Declaration of Independence (1776) and the Articles of Confederation (1777). These two documents emphasize rejection of absolute rule by a monarch, and in the case of the Articles of Confederation even the notion of having a separate executive branch of the federal government.

The constitutional story concerning the power, responsibility, and accountability of the presidency started with the debates about governmental “power” which occurred as early as the United States’ colonial period. Those same debates continue vigorously today. Political freedom was an early, important value that can be seen clearly in the Declaration of Independence of 1776 as Thomas Jefferson and others set forth grievances, injuries, and usurpations against the despotic rule of the British and as well as advancing underlining political principles to establish a republican form of government.

The Declaration was a call to action setting forth the foundational basis for overthrowing a tyrannical government. Excessive and abusive power by King George III was stated as the grounds for dissolving the political connections between England and the colonies. The underlying philosophical rationales for the declared, required separation were “self-evident truths” that “all men are created equal, that they are endowed by their creator with certain unalienable rights,” including “life, liberty, and the pursuit of happiness.” In order “to secure these rights,” the Declaration proclaimed that “governments are instituted” and derive “their just powers from the consent of the governed.” But when the government’s powers become “destructive of these ends, it is the Right of the People to alter or to abolish it and to institute a new government.”Footnote ⁹ Clearly, the Declaration advanced three political ideas – political equality, natural rights, and the sovereignty of the people. It would serve later as the basis for a constitutional republic as adopted by the Founders in 1787. In short, it was a clarion call for the continuation of the Revolutionary War to overthrow the arbitrary and abusive powers of the British monarchy.

A year after the Declaration of Independence, delivered in Congress in 1776, the colonies, through their Continental Congress, approved the Articles of Confederation, the country’s first written constitution.Footnote ¹⁰ The intent was to cooperate with one another, but to maintain each individual state’s independence over most matters of governance. The result was a loose confederation with no effective central government and no executive branch to lead the colonies. The power to govern was left to the individual states with little or no enforcement authority within the colonies. By the 1780s it was clear this arrangement was not working: the federal government was out of money; foreign powers sought to take advantage of American weakness; with protection of the British navy gone, American ships and their crews were exposed to plunder, murder, and kidnapping by the Barbary Pirates; and America had no navy.

Despite a common body of philosophical thought from which to draw, the delegates at the Constitutional Convention had dramatic disagreements about how this philosophy should be implemented in practice. The disagreements were between the Federalists, who favored a complete restructuring of executive power that vested it in a singular president, and the Anti-Federalists, who wanted a weak executive and a Congress as the most powerful branch of government. Further divisions existed between Northern and Southern states on the issue of the institution of slavery and the larger and smaller states on the question of representation in Congress.Footnote ¹¹

As a result of these competing values and factions, the final Constitution that emerged from the Convention was a product of compromise. The bicameral Congress, which grants proportional representation in the House of Representatives and two senators per state in the Senate, was a compromise between larger and smaller states. The three-fifths compromise, which counted enslaved people as three-fifths of a person for the purposes of representation in the House, was a compromise between the Northern and Southern states.Footnote ¹² These states disagreed on a lot, but agreed on one thing, however antithetical this was to the principles in the Declaration of Independence and the political philosophy in which republicanism is grounded: that enslaved persons would have no right to vote or to enjoy any other liberties.Footnote ¹³ Finally, the Bill of Rights, in 1791, was adopted by the Federalists to get the necessary ratifying votes of Anti-Federalists, who were worried that strong centralized presidential power would lead to a trampling of individual rights.Footnote ¹⁴ These debates were an essential part of the process by which the agreement reached in Philadelphia was “sold” to the state legislatures that ratified the Constitution.Footnote ¹⁵ As discussed throughout this book, considerable efforts were undertaken to convince the public and legislators voting to ratify the Constitution that the newly created office of the President would not be too powerful, that presidents would be expected to exercise their powers responsibly and would be held accountable when they did not.

In short, the Constitution, rather than representing a uniform view of government by the Founders, was a document of significant compromise, even if it was drafted and ratified by a small group of men, all White, almost all Protestant and property owners, who in fact represented only a small portion of the people living in the United States. Throughout the first six chapters of this book, which examine the powers of the President, we explore how the debates in Philadelphia in 1787 continue to shape the role of the presidency to this day. While the debates of the Constitutional Convention may have ended in September 1787 and the ratification debates in 1989, there continues today to be contentious debates among the public, the elected representatives, and political and legal scholars about the outer limits of presidential power. For example, when presidents should be held accountable for abuse of power. This book seeks to summarize that modern debate and inform the reader about the historical, legal, and political background of these debates.

When the delegates from the states met in 1787 in Philadelphia for the Constitutional Convention, the Founders were aware of the deep defects and weaknesses in the Articles of Confederation. The principles of representative democracy championed by John Locke were essential to the new Republic, but the realism of Thomas Hobbes was necessary as well. The social contract needed some measure of executive power, and a new office of the presidency to exercise it, but at the same time nobody, or almost nobody, wanted a president who could become an absolute monarch.

The delegates made many compromises during the Convention in their dominant, focused quest to reach an agreement on adopting a constitution that would unite the states into a United States with the desire of not repeating the mistakes of the weak and failed Articles of Confederation. This “power” question was central to the Founders’ concerns because of the long-standing friction between the long reach of British rule and the colonies’ political freedom. The “unity” sought by the delegates was ultimately archived, but first, central questions needed to be resolved, including an overriding issue of where the dominant power and authority would lie between the legislative and executive branches of the new government.Footnote ¹⁶

Given the Founders’ deep fears, concerns, and mistrust that too much power could lead to tyrannical power, as noted in the Declaration of Independence, and as they fought against in the Revolutionary War, the Founders, after considerable, and often bitter and contentious debate, decided that Congress would be the preeminent institution over the presidency.Footnote ¹⁷ It was not by accident that Article I of the adopted Constitution, the first Article, was designed for Congress as the “first branch,” with its powers and responsibilities set forth.

The debates were extensive over how much power should be given to a president considering the grievances the colonies had with the monarchial rule and tyranny of King George III and the lack of “executive” leadership under the Articles of Confederation. In the end, the Founders settled on a system of separation of powers with checks and balances between the branches of government, each acting as a checking agent over the other, and sometimes even as “rivals.”Footnote ¹⁸ As James Madison, one of the authors of the Federalist Papers, observed, “[I]t is not possible to give each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.”Footnote ¹⁹ Indeed, as one noted scholar has opined, the Founders designed “separated institutions sharing power.”Footnote ²⁰

Throughout the debates in the Convention and continued in the Federalist Papers is the “age old problem that faced the [delegates]: how to combine ‘stability and energy in government, with the inviolable attention due to liberty and to the republican form.’”Footnote ²¹ The balance struck between these competing concerns expanded “power,” although differentially, in both the legislative branch and in the office of the executive. The doctrine of separation of powers, with its checks and balances approach between the two branches, was the Framers’ answer to the “age old problem” of the new government maintaining stability and energy while protecting individual liberty in a republican form of government. Although Congress was given greater influence over the presidency, today how much influence is a matter of contention, as this book discusses.

History records that the presidency as an institution has grown and evolved in prominence, power, and authority throughout the years. Several reasons account for this development. A single, unitary, executive decider can lead and make decisions more quickly and efficiently than the lengthy time it takes the 535 decision-makers in the Congress. As this book will trace and analyze, we see a constitutional story unfold on how explicit, implied, delegated, inherited, and acquired powers have flowed between the Congress and the presidency from the country’s early beginnings to subsequent events that have shaped current conduct and new tensions.

Historical events are examples of these assertive uses of presidential power: President Jefferson’s purchase of the Louisiana Territory; President Polk’s annexation of Texas; President Lincoln’s Emancipation Proclamation of enslaved people and the suspension of habeas corpus; President Truman’s desegregation of the military and attempt to seize the steel mills during the Korean War; President Obama’s Paris Agreement on the climate; and President Biden’s attempt to cancel college student debt loans, for example.Footnote ²²

Other examples of early use of presidential power, include President Washington’s suppression of the Whiskey Rebellion in western Pennsylvania, President John Adams’s unilateral military actions in the “quasi-war” with France, and President Adams persuading Congress to pass the Alien and Sedition Acts which targeted immigrants and allowed exercise of executive power to restrict political speech contrary to the First Amendment.

History also records that the most assertive leadership styles of presidents started significantly in the twentieth century. Theodore Roosevelt and Woodrow Wilson in the early 1900s, during the Progressive era, were a portend of what was to come in terms of presidential agenda setting. Then came President Franklin Roosevelt’s New Deal, his conflict with the Supreme Court, and wartime measures, including the unconstitutional internment of Americans of Japanese ancestry.Footnote ²³ President Adams’s 1798 Alien and Sedition Acts have been compared to the executive orders and laws passed by Congress after the terrorist attacks of September 11, 2001, and in 2025 President Trump explicitly invoked these Acts in deportation proceedings against aliens whose political speech on the Middle East conflict he deemed threatening to national security.Footnote ²⁴ The tension between this use of presidential power and the First Amendment is discussed later in this book. And so on. The story told in this book is one of presidential power almost always expanding, rarely contracting, and sometimes posing a fundamental threat to the principles of liberty and republican government upon which this country was founded.