For more than two centuries, jurists and statesmen have intoned that “ours is a government of limited powers.” That proposition is the foundational principle of federal power. The Constitution did not grant Congress open-ended authority to regulate in the public interest. Instead, the Founders wrote a laundry list of highly specific legislative authorities. This enumeration strategy, the Supreme Court has explained, is why courts must carefully consider the national government’s legislative limits: “If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted.” From this starting point comes the endless constitutional sparring over the scope of the powers to regulate commerce, to tax, to spend, and to enter into treaties—just to name a few. Almost everyone agrees that unless legislators can point to an affirmative grant of constitutional authority, Congress simply can’t act.
A funny thing happens, though, when it comes to the presidency. Suddenly you see hand-waving that would be laughed out of the room just about anywhere else.
Oh, I don’t know. There’s an awful lot of hand-waving in support of an absurdly-expanded view of the commerce power, for example. But this is right:
The constitutional text doesn’t actually authorize the president to do very much. It enumerates the veto, appointments, and pardon powers. It grants the president “the executive power” and the office of commander in chief. It authorizes the president to receive foreign ambassadors, demand reports from his subordinates, and deliver a State of the Union address. But aside from a few miscellaneous process authorities, that’s just about it.
I make this point every year when I teach Constitutional Law. But all the best people want a bigger government with a more powerful executive (except, sort of halfheartedly, when the “wrong” person is in the White House) and the courts, being by design made up from the ranks of “all the best people,” have gone along cheerfully.