Chapter 11: The Presidency

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Imagine for a second that you get a notice in the mail.

It says, you know, a massive debt you owe, maybe $10 ,000 or $20 ,000,

has just been wiped totally clean.

Oh man, that's life changing.

Right, you can finally breathe.

But then, a few months later you get a second notice, and it basically says,

never mind, you still owe us the money, the person who cancelled it wasn't actually allowed to do that.

I mean, that is just a profound emotional whiplash, but it perfectly illustrates the central tension we're looking at today.

It shows the incredible reach and then the sudden hard limits of presidential power.

Exactly.

So welcome to the deep dive.

Today, we're looking at that exact emotional whiplash.

Our mission is to tear apart the machinery of the American presidency.

We're basing this on chapter 11, the presidency, from the textbook, We the People,

Essentials.

Right, the 15th edition.

Yeah.

We really want to find out where a president's power actually comes from, why it feels like they can do, well, pretty much anything, and why suddenly they can't.

Because to really understand the theory of government, you have to see how it impacts citizens on the ground.

So true.

So let's start with that massive emotional swing involving student loans we just talked about.

Yeah.

That entire saga actually traces back to the coronavirus pandemic.

During the crisis, the Trump administration initially paused federal student loan repayments.

And to do that legally, they relied on a law passed right after the September 11th terrorist attacks.

Wow.

So an old emergency law.

Right.

It gave the Secretary of Education the power to waive or modify requirements for borrowers during a national emergency.

OK.

So fast forward to August of 2022, and President Biden attempts to take that a massive step further.

He used executive action to try and forgive a portion of those federal student loans altogether.

Right.

Not just pause them, but cancel them.

Exactly.

The plan was, if you earned less than $125 ,000 a year, you'd have $10 ,000 forgiven, and up to $20 ,000 if you received Pell grants.

And the voices caught in the middle of this policy were just incredibly polarized.

They really were.

The text highlights a few of them.

You had people like Lisa Mitchell, a teacher in Detroit.

She owed $12 ,000 her own, plus over $100 ,000 in parent loans.

That is a staggering amount of debt.

Yeah.

And then John Welton, a social work student, who saw this relief as basically the only way to get low -income people out of an inescapable cycle of debt.

But then, you know, you have the complete opposite perspective.

You hear from people like Mark Switzer, a retired paramedic, who bluntly stated,

I don't want to be paying for their college education.

I paid for my own.

It was a highly charged policy driven by a president acting unilaterally, which, let's be honest, presidents often do when they're frustrated by Congress moving too slowly.

Right.

Or when they just have a specific goal they want to push through.

Exactly.

But as we saw in June of 2023,

that unilateral power has a ceiling.

The Supreme Court rejected the cancellation plan entirely.

Chief Justice John Roberts wrote the majority opinion, striking it down, and he relied on something called the Major Questions Doctrine.

I mean, how does that doctrine actually work in practice?

Think of it like this.

The Major Questions Doctrine is a legal theory holding that executive branch agencies cannot act on questions of massive political and economic importance without explicit, specific instructions from Congress.

Got it.

So the court looked at the post -9 -1 -1 emergency law and ruled that it simply did not give the Secretary of Education the authority to unilaterally cancel debt on such a colossal economy -altering scale.

It's like comparing Congress to a homeowner and the executive branch to a contractor.

If I hire you to remodel my kitchen, I expect you to fix the sink.

I don't expect you to tear down the house and build a skyscraper.

That is a great analogy.

The court is basically saying the executive branch tried to build a skyscraper without explicitly asking the homeowner.

That is the perfect way to look at it.

The permission slip was for a minor repair, not a total demolition.

Okay, let's unpack this.

We just saw a president try to wield a massive amount of power, only to hit a brick wall.

So for you, the listener, the obvious question is, where does the president's power actually originate?

And why is it so hotly debated in the first place?

To answer that, we really have to look at the original blueprint, which is Article 2 of the Constitution.

And what's fascinating here is how incredibly brief and vague it is.

It really is.

It establishes the power with the vesting clause, which simply says, the executive power shall be vested in a president of the United States of America.

And then later in Section 3, you find the take care clause.

Which is what?

It just states the president must take care that the laws be faithfully executed.

I mean, that's practically the whole foundation.

It is shockingly vague.

It reminds me of a dangerously brief corporate job description.

Imagine hiring a CEO and the employment contractor says, run the company and make sure the rules are followed.

Yeah, good luck with that.

Right.

Doesn't that imply the CEO can do basically whatever they want, as long as they can argue it's for the good of the company?

That ambiguity is exactly the source of a debate that has raced for over two centuries.

To bolster this broad interpretation, presidents frequently point to the presidential oath of office.

The president explicitly swears to, quote, preserve, protect and defend the Constitution.

OK.

So many presidents have argued that this oath actively requires them to take extreme, even unprecedented action if the nation itself is threatened.

There's really no better historical proof of this than Abraham Lincoln during the Civil War.

Lincoln unilaterally suspended the writ of habeas corpus.

A huge deal.

Massive.

And just for anyone rusty on their legal terms, habeas corpus is the fundamental right protecting citizens against arbitrary arrest and detention.

It's the rule that says the government can't just throw you in a dungeon without a trial.

Right.

And Lincoln just turned it off.

His argument was basically, I had to break one rule to prevent the entire government from being overthrown.

If the nation doesn't survive, the Constitution doesn't survive.

Lincoln's actions perfectly illustrate how presidents interpret their mandate when the chips are down.

He prioritized the survival of the union over the strict letter of the law.

Yeah.

This tension forces us to look at what powers are explicitly written down in black and white versus what presidents claim is just, you know, implied by the nature of the job.

Well, let's start with those explicitly written rules.

Yeah.

They fall into a few categories, right?

The foundational authority is military dominance.

The Constitution makes the president the commander in chief of the army and navy.

Yes.

And today, that translates to controlling the entire defense establishment, plus heading up the massive national intelligence network, the CIA, the National Security Council, the NSA, the FBI.

But what often surprises people is that this military power isn't just for foreign conflicts.

It bleeds heavily into domestic order, too.

Oh, absolutely.

The Insurrection Act of 1807 allows the president to deploy troops domestically to maintain order.

And they can do this even without a request from a state governor.

The historical reality of that is striking.

The text mentions that in 1957,

President Eisenhower sent the 101st Airborne Division into Little Rock, Arkansas.

Right.

To enforce the racial integration of public schools.

Exactly.

He deployed federal troops against an American city to enforce the law.

And then, jumping all the way to 2020, you have President Trump using that same foundational authority to send the Navy hospital ship USNS Mercy to Los Angeles.

To help overwhelm civilian hospitals during the COVID -19 crisis.

Right.

It's the exact same constitutional power wielded in vastly different domestic crises.

And this overarching authority at home naturally extends to how the president acts on a global stage and in the judicial arena.

For instance, the president has the unilateral power to grant reprieves and pardons.

Which is a pretty wild power when you think about it.

It is.

It can be pinpointed to individuals, like when Gerald Ford controversially pardoned Richard Nixon, sparing the country a prolonged trial.

Or it can be applied on a massive, sweeping scale.

Like Andrew Johnson.

Exactly.

Andrew Johnson used this power to give full amnesty to all Southerners who fought for the Confederacy after the Civil War.

And diplomatically, the president operates as the nation's sole representative.

They hold the expressed power to make treaties and receive ambassadors.

When President Trump met with North Korea's Kim Jong -un, it was a vivid demonstration of that.

The president alone is the face and voice of the United States on the global stage.

But stepping back into the domestic sphere, we have to look at the president's role as the true chief executive officer of the nation.

They have the power to appoint, remove, and supervise all executive officers.

However, the exact boundaries of this executive power are actively shifting beneath our feet.

We saw a massive development with the 2024 Supreme Court case, Trump v.

United States.

The court ruled that a president is immune from prosecution when exercising core executive powers.

Wait, I'm struggling with this.

If the Supreme Court ruled that presidents have immunity for their core executive actions, doesn't that effectively make them a king?

It's a huge question.

I mean, how is that not a direct violation of the whole checks and balances system we just talked about?

It is a profound philosophical friction, for sure.

The court's reasoning is rooted in the idea that presidents need to be protected from endless political retribution.

Meaning what?

Exactly.

The logic is that if a president is terrified that a political rival will throw them in jail the second they leave office, just for making a tough controversial policy call it, creates a chilling effect,

they wouldn't be able to govern effectively.

But they left the actual definition of what constitutes a core power completely open, right?

Precisely.

They stated the immunity exists, but left the boundary of what is and isn't core to be hashed out in future litigation.

So we are watching the limits of the presidency being drawn in real time.

That is wild.

And that desire to shield the presidency from interference also drives the concept of executive privilege.

This is the claim that confidential communications between a president and their close advisors shouldn't be revealed without the president's consent.

The rationale there is that a president requires honest, unvarnished advice to make critical decisions.

Advisors simply won't give that level of honesty if they think their private deliberations will end up on the front page of a newspaper or broadcast in a congressional hearing.

The historical record traces this all the way back to George Washington, actually, who kept treaty negotiations secret.

But it erupted into the public consciousness during Watergate, in the 1974 case United States v.

Nixon.

The Supreme Court formally recognized that executive privilege is a real thing, but they drew a hard line.

It is not absolute.

Specifically, it can't be used to hide evidence in a criminal inquiry.

Nixon was forced to hand over the infamous tapes.

And that privilege continues to be tested constantly.

President Trump invoked it regarding portions of the Mueller report during the deliberations over the 2020 census and over documents requested by the congressional committee investigating January 6.

It comes up a lot.

It does.

The 2022 FBI raid on Mar -a -Lago regarding classified documents is another prime example of the ongoing heated legal debates over the privileges of former presidents.

Wrapping up these explicit constitutional powers, there is a fascinating shift in how presidents set the legislative agenda.

The Constitution requires the president to give a State of the Union address.

Right, which used to be pretty dry.

Yeah.

For a long time, it was just a boring written report sent over to Congress.

But since Franklin D.

Roosevelt, presidents have weaponized it to set the entire national agenda.

Think about George W.

Bush setting the course post -9 -11, Obama pushing the Affordable Care Act, Trump rallying for tax reform, or Biden outlining his infrastructure plan.

If we connect this to the bigger picture, it reveals a fundamental shift in American governance.

Congress officially makes the laws, yes, but the president steers the ship.

The president uses the megaphone of the office to define what we are even talking about as But because that original Article 2 blueprint is so brief,

modern presidents haven't stopped at just those explicit powers.

They've pushed the boundaries outward, interpreting their authority much more broadly.

Which brings us to the unitary executive theory.

Right.

The unitary executive theory is an interpretation that essentially argues the president controls all policy making within the executive branch.

All of it.

Yes.

Under this framework, the president is a supreme authority, subject only to very specific, extreme restraints like impeachment or a veto override by Congress.

It asserts that Congress actually has very little direct power over how executive agencies operate.

Those agencies answer solely and completely to the president.

But the courts don't always agree with that absolute control, right?

We saw a major pushback in the 2024 Supreme Court case, Loper Brite Enterprises v.

Raimondo.

Yes, that was a big one.

The court aggressively curbed the power of executive agencies.

They rule that judges should no longer just defer to an agency's interpretation of an ambiguous law.

It's a constant, ongoing tug of war of checks and balances between the branches.

And that tug of war turns into an all -out brawl when we examine inherent powers.

Here's where it gets really interesting.

It does.

These are powers not explicitly specified in the Constitution, but claimed by presidents as stemming from the very nature of the office itself.

They are almost always invoked during times of war or national emergency.

You can track a clear, modern escalation of presidents using these inherent powers.

Following the 9 -11 attacks, George W.

Bush claimed inherent authority to create military commissions and to authorize extraordinary renditions of captured suspects.

And just to clarify what that means, extraordinary rendition essentially involves capturing suspected terrorists and secretly transferring them to other countries for interrogation.

It deliberately places them outside the bounds of the U .S.

legal system.

Bush also used this inherent authority to order warrantless NSA wiretaps on American communications.

And the trend didn't stop when the administration changed.

President Obama relied on inherent power to order drone strikes against suspected terrorists and to authorize airstrikes in Libya,

completely bypassing a formal congressional declaration of war.

President Trump similarly used inherent powers as the foundational basis for the 2017 travel ban, which, by the way, was ultimately upheld by the Supreme Court in 2018.

He also asserted he had the inherent power to dictate whether businesses across the country could remain open or forced to close during the COVID -19 pandemic.

Regardless of the political party occupying the Oval Office, the institution itself constantly pushes to expand its authority the moment a crisis hits.

You're probably wondering, how does one single person, the president, actually manage all of this military, legislative, and crisis power?

They don't.

Exactly, they don't.

They rely on an enormous institutional apparatus.

To understand the scale, you have to look at the networks surrounding the Oval Office.

First you have the cabinet, which includes the 15 major executive departments.

And the scale of these departments is just staggering.

The Department of Education is relatively small, employing about 4 ,200 people.

But then you look at the Department of Defense, which employs roughly 700 ,000 civilians and 1 .3 million military personnel.

It's massive.

Beyond the cabinet, you have independent agencies like the CIA or the EPA, whose heads are appointed by the president.

Closer to the Oval Office, you have the White House staff, the analysts and special assistants who are providing daily political advice.

But the true leverage point of the modern presidency lies in the fourth block, the Executive Office of the President or the EOP.

Created in 1939, the EOP houses highly specialized agencies.

And the undisputed heavyweight champion in this group is the Office of Management and Budget, the OMB.

The OMB is critical because its creation fundamentally changed how power flows in Washington.

Think about what that means.

Before 1939, budgeting was bottom -up.

Agencies would figure out what they needed and send their requests directly up to Congress.

Because Congress held all the power of the purse.

Exactly.

But the OMB flipped the system to top -down.

It's essentially a hostage takeover of government leverage.

By forcing agencies to ask the White House first, the presidency hijacked the purse strings before Congress even got a say.

It's an invisible chokehold on the entire government.

Exactly.

The OMB acts as a massive watchdog for the president.

It clears all agency proposals, all budget requests and all new regulations before they ever see the light of day.

It gives the White House ultimate centralized control over federal spending and agency behavior.

Which perfectly sets up the administrative strategy.

If a president can't get Congress to agree on a new law, which, let's be honest, happens constantly in a gridlock system,

they use this massive institutional presidency to just bypass Congress entirely.

A vital mechanism of this bypass strategy is regulatory review.

This is overseen by a specific agency within the OMB called OIRA, which stands for the Office of Information and Regulatory Affairs.

Congress frequently passes very broad, vague laws, something like improve air quality.

But it's the executive branch funneling through OIRA that writes the actual specific rules dictating exactly how a factory has to operate to meet that goal.

It's turning a broad sentiment into a strict law without Congress lifting a finger.

President Obama used this exact OIRA process to create sweeping new regulations governing power plant emissions and changing national overtime pay rules, essentially making massive policy shifts without legislative interference.

And if regulatory review isn't direct enough, presidents turn to governing by decree, most notably through executive orders.

These are direct orders to the bureaucracy that carry the actual force of law.

They're huge.

Historically, they've been used for some of the most monumental decisions in American history.

Think about the Louisiana Purchase or the Emancipation Proclamation.

And if you look at the historical data on executive orders in the text, there's a massive undeniable outlier.

You look back at the 19th century and early presidents barely touched them.

George Washington averaged one per year.

William Henry Harrison had zero.

Modern presidents use them regularly, though.

Obama averaged 35 a year, Biden 38, Trump 55.

But then you look at Franklin D.

Roosevelt and his numbers break the chart.

FTR averaged 307 executive orders a year.

That is just wild.

FDR's unprecedented use of executive orders was largely driven by the sheer desperation of the Great Depression and then the global mobilization of World War II.

It fundamentally changed the expectation of how a president governs in the modern era.

But wait, if a president can just write an executive order to make policy on a Tuesday afternoon,

why bother with the agonizing process of Congress at all?

Because executive orders aren't magic wands.

They cannot conjure power out of thin air.

They must be rooted either in the Constitution or in a law already passed by Congress.

If a president oversteps that foundation, the courts can and will strike the order down.

It takes us right back to the student loan cancellation at the start of our discussion.

It's rare, but judicial review is the ultimate check on that decree power.

There is one more administrative strategy we have to talk about, and it's perhaps the most blunt tool in the entire toolbox.

Non -enforcement.

How do you veto a law that already exists?

You just tell the police not to enforce it.

Basically, yeah.

If a president fundamentally disagrees with the law, they can sometimes just direct their agencies to look the other way.

The record shows President Obama doing this when he suspended parts of the Affordable Care Act rollout.

The implementation was confusing and politically damaging, so they just paused enforcing it.

And later, President Trump ordered the IRS not to enforce the ACA's tax mandate in a deliberate attempt to undercut the very same law.

It's an incredibly effective way to neutralize legislation without having to actually repeal it.

With presidents accumulating all this power expressed, inherent and administrative,

how does the legislative branch even fight back today?

The reality is that the dynamic has become incredibly fiercely partisan.

It's turned into parliamentary warfare.

A perfect example is the battle over appointments.

The Constitution says the Senate is supposed to confirm presidential appointments.

But presidents found a loophole.

They started using recess appointments to sneak their people into jobs when the Senate was officially on a break.

So how did the Senate respond to getting bypassed?

They started holding fake pro forma sessions.

It's an incredible visual.

During a holiday break, one single senator will walk into an empty chamber,

bang a gavel to open a session, and immediately bang it again to close it.

It's so petty, but it works.

Because of that 30 -second charade, technically the Senate is never in recess, completely blocking the president from making the appointment.

This raises an important question about the health of the system.

We also see this partisan warfare and how the ultimate check on power impeachment has morphed.

In 2023, the House launched an impeachment inquiry into Joe Biden's business dealings.

The text notes that observers and analysts pointed out this inquiry appeared designed to harass the president as direct retaliation for Trump's impeachments.

It showcases how the most severe foundational constitutional checks and balances are increasingly being weaponized.

We've covered incredible ground today.

We started with the emotional whiplash of a student loan debate, and we've mapped out the massive complex machinery of the modern presidency.

We really have.

We've explored the dangerously vague vesting clause, Lincoln's suspension of habeas corpus to save the union, the expanding claims of inherent powers during the war on terror, and the invisible chokehold of the OMB and executive orders.

It paints a vivid picture of an office that has grown far beyond what is written in the sparse text of Article 2.

It's been driven by historical crises,

massive institutional expansion, and the sheer, undeniable necessity of running a modern superpower.

So what does this all mean for you?

As you process this deep dive into the mechanics of American government, I want to leave you with a provocative thought that builds on everything we've just discussed.

As our modern world gets faster and more complex, and Congress finds itself increasingly slow or gridlocked by partisan warfare,

presidential power will likely continue to expand to fill the void.

Right.

Will we eventually reach a point where the unitary executive is no longer just a legal theory debated by scholars, but an absolute functional necessity just to keep the country running?

It is a profound question.

It's a question every generation of Americans has to answer for themselves as they weigh the eternal balance between an effective government and a limited one.

Thank you for joining us on this deep dive.

On behalf of the Last Minute Lecture team, we hope this exploration gave you a new lens through which to view the news, the law, and the American presidency.

Keep questioning, and we'll see you next time.