The Articles of Confederation, adopted in 1777, provided for a very weak central government. It was essentially a confederation of thirteen autonomous states. By 1787 it was obvious a stronger central government was needed, one that could collect taxes and conduct foreign policy, and a constitutional convention was convened to propose needed improvements.
The convention early on adjourned into a committee of the whole, so that discussion could proceed unfettered. While this meant there were no official minutes, many of the delegates kept journals, and most regularly wrote home to their wives, so there is an ample written record of the proceedings. My main source here is "A More Perfet Union", by William Peters, which provides a detailed, almost day-to-day, account of the deliberations.
It was agreed early on that the central government should consist of three branches--executive, legislative, and judiciary. One of the main issues was the nature of the executive branch. Edmund Randolph, a delegate from Virginia, proposed a three-man executive, calling a single executive "the foetus of monarchy". Others argued for a single executive. I think here of the saying in the NFL that "if you have two quarterbacks, you have no quarterback". The idea here is that someone has to be in charge, the buck has to stop somewhere. Eventually the single executive was agreed to, by a vote of seven states to three.
Having settled on a single executive, the Convention then debated what the powers of that executive would be. One issue here was whether the executive would have an absolute veto on national legislation, an approach favored by Alexander Hamilton and James Wilson. Pierce Butler of South Carolina spoke eloquently against the absolute veto, observing that "in all countries the executive power is in a constant course of increase". Ultimately the absolute veto was voted down, and the ability of two-thirds of each legislative branch to override a veto was chosen.
A similar dispute arose when the issue of ratifying treaties was taken up. James Wilson and Rufus King of Massachusetts spoke against the proposed two-thirds requirement for Senate ratification, feeling that would give a minority undue power, but the two-thirds rule prevailed.
As an example of the truth of Butler's observation about executive power constantly increasing, we have only to track the increase over the years in presidential use of "executive agreements" rather than treaties. In "The Imperial Presidency", Schlesinger says that in 1930 the U.S. made 25 treaties and only 9 executive agreements, while in 1971 the count was 214 executive agreement and only 17 treaties. In other words, in 1971 Nixon entered into 231 agreements with foreign governments, and only submitted 7% of them to the Senate for confirmation! When a Senate committee subpoenaed a state department expert to testify on the difference between the two types of agreements, his testimony was characterized as "a treaty is something we have to submit to the Senate; an executive agreement is something we don't have to submit to the Senate."
While the Trump violations of presidential norms have been nauseatingly numerous, I want to focus on the issue of what happens when a president ignores court orders. Historically this issue has been framed in a way that stresses the duty of the Supreme Court to not get too far ahead of the electorate; hence the saying that "the Supreme Court follows the elections returns". I well remember my Constitutional Law prof lecturing on this point. He gave as an example Andrew Jackson's famous statement that "John Marhsall has made his decision, now let him enforce it". At the time the Nixon tapes case was in the courts, and the prof gave, as another example, what happens if Nixon would ignore a Supreme Court order to turn over the tapes to the Watergate prosecutor.
The Jackson issue needs some fact-checking. Historians now say that Jackson probably did not actually say this. The case, Worcester v. Georgia (1832), involved a dispute between the state of Georgia and the Cherokee Nation. The court ruled that the Cherokee Nation was an autonomous nation, not subject to the Georgia law at issue. While this ruling did not directly require any federal action to enforce it, the holding (or, perhaps, better described as "dicta"), did have broader application to other cases and was repeatedly violated by Jackson and other federal officials who consistently refused to honor the rights of Native American tribes.
While Jackson's abuses of federal power are certainly troubling, they pale in comparison to that greatest abuser in the history of the U.S. presidency, Abraham Lincoln. I won't repeat my prior critique, but here is how Schlesinger described Lincoln on page 58 of "The Imperial Presidency":
"Throughout the war, even with Congress in session. Lincoln continued to exercise wide powers independently of Congress. He asserted the right to proclaim martial law behind the lines, to arrest people without warrant, to seize property, to suppress newspapers, to prevent the use of the post office for "treasonable correspondence", to emancipate slaves, to lay out a plan of reconstruction. His proclamations, executive orders and military regulations invaded fields previously the domain of legislative action. All this took place without a declaration of war by Congress."
Schlesinger explains how Lincoln deliberately delayed convening Congress until July 4, 1861, in order to prevent Congress from stopping his illegal actions. Schlesinger says that "Lincoln ignored one law and constitutional provision after another. He assembled the militia, enlarged the Army and Navy beyond their authorized strength, called out volunteers for three years' service, spent public money without congressional appropriation, suspended habeas corpus, arrested people 'represented' as involved in 'disloyal' practices and instituted a naval blockade of the confederacy."
Ultimately the question comes down to how do we respond to serious abuses of presidential power. Resorting to the court system is no answer, if you have an administration which refuses to abide by court decisions. The real answer is that the people have to push back. In many countries this "pushing back" takes the form of mass protests in the streets, as has been taking place in Turkey recently. In our country the tradition is to push back at the ballot box, in town halls, and through targeted protests. This has been going on recently with respect to our current president. Especially noteworthy are the elections the past two weeks. Last week Democrats won a State Senate seat in Pennsylvania (in a district including Lancaster) that hadn't been won by a Democrat in over 100 years! And last week Democrats won the Supreme Court race in Wisconsin by ten points, despite Elon Musk's $25M spent in opposition.
Encouraging signs indeed!
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