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Congress can't always move as fast as the world moves, so presidents have been granted powers to move faster to respond to major events like war.
Presidents and this has been true under almost every modern president I think, have really taken a broad view of their power to use force without getting authorization from Congress. Like President Bush, the first one maintained that he had the right to send troops to Iraq without congressional authority, and then later we have a say Obama doing drone strikes in Libya without asking for congressional approval.
That's Dan Farber, a law professor and the author of a book on presidential powers. As he notes, none of this is new.
I like to believe that presidents generally try to exercise their powers responsibly and that we haven't had like these huge abuses of power that are theoretically possible. But that's because of norms as much as it's about law, right, it's about sort of expectations about what people think is proper for the president that are kind of ingrained, but
they're not necessarily backed up by law. We kind of count on these norms as restraints and to ensure that the broad powers of the president aren't abused.
Over the years, through the use of executive orders and other tools, we've seen a tug of war between Congress and the president over the use of these powers. What keeps presidential power in check? Well, that's complicated.
One thing that we're finding out is how much could the president say do hypothetically to use his powers to undermine the government or to block elections and have immunity.
That's an open question and one that's soon to be debated in the Supreme Court. In a town hall on Fox News in December, Trump himself suggests that he'd use his first day back in office to issue a flurry of executive orders.
He says, you're not going to be a dictator. I said, no, no, noe. Other than day one.
As November inch is closer and the prospect of a second Trump term comes into focus, questions are swirling. Could a sitting president pardon himself in the face of legal troubles, could he take executive powers to a new level? And what does history tell us about just how far this could go? Today on the show, I sit down with Dan Farber, law professor at the University of California, Berkeley
and the author of Contested Ground. We talk about how the American presidency has changed since the country's birth, what our founding documents have to say about it, and what's at stake if anyone decides to ignore the norms we take for granted from Bloomberg's Washington Bureau. This is the Big Take DC Podcast. I'm Saleamosen, So Dan, can you tell tell me sort of big picture, how has the executive branch changed in the time since the country's founding.
It's almost impossible to exaggerate how much it's changed. The executive branch was tiny at the time of the founding. Even by the time of Abraham Lincoln. The entire White House staff that now fills the whole West wing of the White House and the building next to the White House, well, at that time there only had a handful of employees. Even if you just look at the army, the army when George Washington was president was smaller than the New
York Police forces today. So there's just been this tremendous change in the scale of government. At the same time, the president's really become the focal point of US government instead of being just one of the three.
Branches, and a lot of what we're talking about was sketched out in the country's founding documents. How strong are those documents on the point of presidential power.
Like everything else about presidential power, that's debated. But my view from looking at the debates about the presidency and about gratifying the Constitution was that they didn't really have a very clearer picture of what the president would do. They spend a lot of time arguing about how the president would be elected. They actually spent time talking about whether there would be one person or three people, and they talked about whether the president would be chosen by
Congress or in some other way. So they spent a lot of time talking about stuff like that, but they spent much less time, really hardly anytime talking about what the powers of the president would be. And so Washington created precedents for some of that that have kind of endured, but other issues really didn't come up at the time.
And when did the twenty second Amendment, the one that states that a president can serve for two terms four year terms each, When did that come into play?
So that was after World War Two, you know, until then, there'd been a custom of presidents only serving two terms, but then Franklin Roosevelt FDR served an extra term because the Great Depression was ongoing, and then a fourth term because it was the middle of World War Two.
It was my firm intention to turn over the responsibilities of government the other hands at the end of my term.
That could be the Republicans at least were really unhappy about that and thought we should have more in the way of term limits.
It's interesting to hear that when the country was being established, presidential powers weren't really thought about. Let's come to the modern era after World War Two. Since then, what are some of the key moments that you think stand out as pivotal in the expansion of executive authority.
I think beginning with World War Two, presidents have really assumed they had a lot more power or tagged independently on national security matters. Nixon tried to really push executive power in a lot of areas, but he got slapped down, and so there was like a period of reaction to that, say under Jimmy Carter and Gerald Ford, where the presidents kind of pulled back a bit. But then with Reagan there was really kind of starting with their conscious effort to expand presidential power.
Dan, I'm curious, is it mostly war that triggers these kinds of overreaches or are there other signs that a president might try to expand powers so.
A war and foreign affairs in other ways, Like one of the unsettled areas was whether the president can get out of a treaty at will, Like can Trump withdraw all on his own from NATO without permission from Congress? Not clear. One of the things we tend to see, say a president wants to do some big action, right, they want to spend money. So what they do is they look around the whole executive branch. They look if they've got some agency that has some power that's somewhat related,
and then they tell that agency go big. And there are a bunch of federal laws that provide emergency powers. By and large, they're kind of vague about what's an emergency. If you're kind of worried about what presidents might do, one of the risks is they start invoking these emergency powers like the Insurrection Act in a way that might be very difficult for a court to intervene.
What is the Insurrection Act?
The Insurrection Act gives the president the power to respond to an insurrection with force without prior approval from Congress. I think it was used as early as George Washington, or at least a predecessor of the current law was. There's been talked that, like, maybe we should revise the Insurrection Act to define a little more close what's an insurrection, rather than taking the risk that some president might decide to just label something in insurrection and then you know,
sending the troops. I like to believe that presidents generally try to exercise their powers responsibly and that you know, we haven't had like these huge abuses of power that are theoretically possible. But that's because of norms as much as it's about law, Right, It's about sort of expectations about what people think is proper for the president that are kind of ingrained, but they're not necessarily backed up
by law. We kind of count on these norms as restraints and to ensure that, you know, that the broad powers of the president aren't abused. But a president who doesn't care about the norms is hard to restrain, and any restraint would probably have to come at least as much from Congress. Then who knows the politics and Congress at the time, So our safeguards are not as in some ways they're really strong, because these norms are really well ingrained, but in other ways they're not that strong.
Heading into the November election, many voters appeared to be on edge. The latest Bloomberg News Morning Consult poll found that half of swing state voters fear violence around the election, and as Bloomberg Business because reported, both Republican and Democratic focus groups are hearing, undecided voters worry that if Trump wins, he won't seed power at the end of his second term. That wouldn't just go against presidential norms, it would also
be in violation of the twenty second Amendment. Coming up, Professor Dan Farber and I dig into the legal loopholes that could be exploited or created to expand presidential power even further, and we talk about the strength of the Constitution itself and how the country's belief in it plays a role in ensuring its future. It occurs to me that Washington is a town of lawyers, and a town of lawyers are always looking to either exploit or create loopholes.
Considering that are there loopholes in our laws right now that could subvert our free and fair and predictable election cycle.
So there are some on the congressional side, because you know, if Congress decided not to do its job, it's not clear anyone else could stop them. In terms of the president, the president doesn't have any real formal involvement like in the counting of electoral votes or anything like that. But could the president use powers in a way to sort of favor his own side of an election or make
it more difficult for people to vote in someplace. Maybe. Yeah, the idea that the president might stop people from going to the polls isn't one that I'm super worried about. But you can imagine lots of other things to try to influence the election that a president could do, including, you know, try to use the powers of the federal government against the opposing party. Some of the things that you know Nixon tried to do. You could imagine a
president doing that. You don't have to imagine it. We know one of them tried.
We're in the midst of an election year and one that is already tumultuous and could be even more tumultuous ahead. Do you think the Constitution alone can protect the passage of presidential power.
I don't think the Constitution alone can do anything in a sense, right. I mean, it's a piece of paper. The Constitution has meaning to the extent that the courts enforce it, and that people believe in the Constitution and stand behind the courts. The power is power that comes from belief and faith in the rule of law. There's kind of a dilemma in constitutional law, right, which is, you want to prevent bad presidents from abusing their powers.
Same time you know that emergencies happen that really do need responses, that the Congress can't always think of everything, and so you want to leave enough room for good presidents to be able to do the right thing when it's necessary. And so you kind of have to strike a balance. If you completely tie up the president in legal knots, that could be great for preventing abuse, but also means the president's not going to be able to take care of some important stuff.
We also don't want a good president to abuse power exactly.
So we're trying to kind of draw a line that gives the president enough power but not too much. It's sort of like a Goldilocks standard.
If you're saying that a constitution is just a piece of paper. How much of what we're dealing with comes down to the black letter law versus the values of the day in society and the strength of the electorate.
I think a lot of it does come down to the values of society. I mean, one of those values can be obeying the constitution right or the laws, and hopefully people think that's important, even if they don't totally agree with the say what the laws say. But part of it is are people still faithful to the idea of democracy and the rule of law. Having a constitution helps with that, Having the Supreme Court helps with that,
can help with that. But at the end of the day, if the society isn't willing to stand up for democracy in some sense or you know, the rule of law, then they can't survive. We saw even you know, under Trump's first term, Congress said no to him sometimes. But it kind of relies on a sort of healthy party system. And again, I mean I worry about that at this point.
I'm almost afraid to ask you this question now. But the US is looking uncertain to allies and adversaries abroad, and folks are wondering if someone could turn American democracy into a dictatorship. How long or short is the path to a dictatorship in America.
I don't really see a sort of pure dictatorship emerging anytime soon. I don't think any president, no matter how belevolent they were, could turn themselves into Putin, where you know, they exercise basically unchecked power at all levels. In fact, I think even Putin took time to accomplish that. I think it would be difficult to do. We have state governments that have some degree of autonomy that would be
hard to control. You know, we have all kinds of things that would work in the other way, including the courts right that I think would operate at least to some extent as a check. I think Congress would do so. One of the legal rules, it's very strong, is that the president can't spend money without authority from Congress. So that does give Congress some ultimate con goals over what
the government does. What I do worry about is something not a dictatorship, but the kind of authoritarian still not entirely dictatorial government that we see in Hungary or with Turkey, where yeah, there's still elections and it's still possible that the people in power could lose the election, but it's not exactly a free society anymore either. On most days at least, I'm fairly optimistic that that's not going to happen. But i'd like to be certain it's not going to happen,
and I can't say that. I am Dan.
Thank you so much for joining us. Has been an absolutely illuminating conversation.
Well great, it's been fun talking to you. Thanks for inviting me.
Dan Farber is the author of Contested Ground, How to Understand the Limits on Presidential Power. Thanks for listening to The Big Take DC podcast from Bloomberg News. I'm Salaiamosen. This episode was produced by Julia. It was mixed by Blake Maples and fact checked by Audreyanatapia. It was edited by Aaron Edwards and Wendy Benjaminson, who provides editorial direction with Elizabeth Ponso. Naomi Shaven and Kim Gilson are our senior producers. Nicole Beemster Bower is our executive producer, and
Sage Bauman is Bloomberg's head of Podcasts. Please follow and review The Big Take DC wherever you listen to podcasts. It helps new listeners find the show