Supreme Court Expansion of Presidential Power

Unconstitutional Leanings

Louis Fisher

In the fourth of the Federalist Papers, published in 1787, John Jay warned of absolute monarchs who “will often make war when their nations are to get nothing by it.” More than two centuries later, are single executives making unilateral decisions any more trustworthy? And have the checks on executive power, so critical in the Founders’ drafting of the Constitution, held? These are the questions Louis Fisher pursues in this book. By examining the executive actions of American presidents, particularly after World War II, Fisher reveals how the Supreme Court, through errors and abdications, has expanded presidential power in external affairs beyond constitutional boundaries—and damaged the nation’s system of checks and balances.

Supreme Court Expansion of Presidential Power reviews the judicial record from 1789 to the present day to show how the balance of power has shifted over time. For nearly a century and a half, the Supreme Court did not indicate a preference for which of the two elected branches should dominate in the field of external affairs. But from the mid-thirties a pattern clearly emerges, with the Court regularly supporting independent presidential power in times of “emergency,” or issues linked to national security. The damage this has done to democracy and constitutional government is profound, Fisher argues. His evidence extends beyond external affairs to issues of domestic policy, such as impoundment of funds, legislative vetoes, item-veto authority, presidential immunity in the Paula Jones case, recess appointments, and the Obama administration's immigration initiatives.

“In this authoritative account, Louis Fisher demonstrates that federal courts since the 1930s have greatly expanded presidential power, and have done so beyond any fair reading of the original intent of the Framers and the text of the Constitution. They have done so through erroneous readings of historical precedent, the development of doctrines that are based on personal biases toward executive power, and through abdication of their responsibilities to adjudicate by seeking refuge in procedural dodges. Fisher argues that not only the courts should be held accountable for misleading approaches, biased doctrines, and abdication of function, but so should a large part of the public law scholarly community. For the most part legal scholars have not mined the historical record, nor questioned presumptions about executive competence. The result is that both judges and the scholars who comment on their work have legitimized executive power to an extent that has done serious damage not only to the constitutional system, but also to the viability and legitimacy of public policy. Fisher is the dean of public law scholars, and he has produced a hugely valuable study of the non-use and misuse of judicial power in legitimizing the vast expansion of presidential powers.”

—Richard M. Pious, Adolph and Effie Ochs Professor Emeritus, Barnard College and Columbia University

“Louis Fisher’s richly documented latest book sets forth a compelling historical narrative of the American republic from 1789 to the present that constitutes a serious indictment of the Supreme Courts unique contributions in creating a Presidency that possesses powers that are not only dangerous but are at odds with foundational principles of the constitutional order such as separation of powers and checks and balances. Fisher’s Supreme Court Expansion of Presidential Power is the culmination of decades of learning and consideration and should be required reading for anyone invested in the preservation of an American republic committed to democratic values, individual liberty, and the rule of law.”

— David Rudenstine, author of The Age of Deference: The Supreme Court, National Security, and the Constitutional Order

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Fisher identifies contemporary biases that have led to an increase in presidential power—including Supreme Court misconceptions and errors, academic failings, and mistaken beliefs about “inherent powers” and “unity of office.” Calling to account the forces tasked with protecting our democracy from the undue exercise of power by any single executive, his deeply informed book sounds a compelling alarm.

About the Author

Louis Fisher is scholar in residence at The Constitution Project in Washington, DC, and visiting scholar at the William and Mary Law School. From 1970 to 2010 he served in the Library of Congress as senior specialist in separation of powers at Congressional Research Service and specialist in constitutional law at the Law Library. His many books include Constitutional Conflicts between Congress and the President, Sixth Edition, Revised; Presidential War Power, Third Edition, Revised; and Military Tribunals and Presidential Power, winner of the Richard E. Neustadt Award.