Juan Betancur 1

As the weight of the legislative authority requires that it should be thus divided, the
weakness of the executive may require, on the other hand, that it should be fortified (Federalist
51). How much weight did the Framers of the United States Constitution truly intend for the
legislative branch to have? How much fortification did the executive truly require? As brilliant
as the Framers were, they could have never planned for nor did they foresee what running the
government in the future would entail. When the Constitution was written, it was meant to
establish only a framework of what the United States government should be. The Framers
intentions have been and will always be the subject of great debates. One thing that is clear
about the Framers intentions from analyzing the Constitution and Federalist 51 is that the
Legislature was to be the dominant branch. However, as times have changed the distribution of
power within the government has too. Congresss power has notably increased, but the same is
true about the executives. Because Congress is not specialized in nor has the time or resources
to legislate on a long list of issues which require government action, they have delegated a great
deal of its power to the executive. This factor, among many others, has led to the steady decline
of the predomination by the legislative branch. The growing complexity of the world, along with
the unwillingness to relinquish power by the executive once he has it, has driven the executive
branch to rise to a level of power which has subjugated the legislature.
The dominance of the executive branch over the legislature is most significant when it
comes to national defense policy. The United States military needs no introduction: it is the
most powerful the world has ever seen. The president now essentially wields that power as he so
chooses. The Constitution states that he is commander in chief of the military when called into
the actual service of the United States (Article II, Section 2). The Constitution gives Congress
the power to declare war, raise and support armies, to provide and maintain a Navy, and to
make Rules for the Government and Regulation of the land and naval forces, among other

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powers over the military (Article I, Section 8). These passages have been interpreted differently,
but there is clarity in that the Constitution gives Congress the authority to determine when the
use of military force is necessary (Epstein and Walker 274).
There have been a multitude of cases since the Constitution was written in which the
president has carried out acts of war without formal Congressional approval. One needs to look
no further than to the past decade of national defense policies to see how executive power
prevails over the legislature. President Barack Obama enters the White House with more
constitutional and legal power than any president in US history (Balkin 1). Vastly expanded
authority over domestic and international surveillance, a massive bureaucratic department of
homeland security, a network of intelligence services, and strategically based state-of-the-art
weaponry around the world are just some of the newly acquired executive powers (Balkin 1). In
his article, Balkin pondered as to what the Obama administration would do with the
extraordinary power and authority that was handed to it by the Bush administration. One word
highlights how the president chose to handle said power: drones! The recently leaked Justice
Department white paper concerning the use of drones is troubling evidence that the executive
branchs power has far surpassed that of the legislatives and has even usurped its
constitutionally given authority. The president had claimed executive privilege until the white
paper memo came out and had for quite some time refused to even acknowledge that the drone
program existed. The Obama administration has given itself broad powers to track down and kill
U.S. citizens. The legal justifications for such extraordinary power are shaky at best, and the
language in the white paper memo implies that the government does not need clear evidence
to target Americans but simply a determination by some high-level official that a suspect is an
imminent threat (Cline). In other words, the president, with the help of the defense
department, is now judge, jury, and executioner, not even as a whole does Congress wield this

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power. The department of defense and its drone program covers just one example of the extent
of presidential power. Imagine the authority he commands through the other cabinet
departments.
The presidents cabinet has grown tremendously since the Constitution was adopted:
from four under Washington to fifteen today. Another example of the now dominant executive
branch can be seen in the Department of State. While the aforementioned defense policies
directly relate to foreign affairs because military capability is tied to it, the state department and
the power it has afforded to the executive needs extended emphasis because of the growing role
of globalization in interconnecting international security, business, communication,
infrastructure and a variety of other policy issues. Foreign policy is the most detailed and
significant authority given to the president by the Constitution (Epstein and Walker 247). For
good reason, the Framers found it necessary to give almost complete control of foreign policy
matters to the president, but context matters. Foreign affairs today are enormously more
complex and its implications are much deeper than they were in the 1700s. Intergovernmental
organizations such as the United Nations, the World Trade Organization, NATO, and the G8 of
which the U.S. is a member reach binding agreements that envelop issues of conflict resolution,
international relations, environmental protection, human rights, social and economic
development, and humanitarian aid, just to name a few. Many of these policies are essentially
informal treaties. The Constitution does give the president the power to make treaties, and the
treaties require a two-thirds approval by the Senate in order to check his power (Article II,
Section 2, Clause 2). However, now the president very often times bypasses the Senate by
entering into executive agreements with other nations (Epstein and Walker 250). Although
federal law requires that Congress be informed if these agreements are made and Congress can
nullify them, the president with the approval of the Supreme Court now increasingly enters into

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such agreements unilaterally and with little oversight, 1,984 by former President George W.
Bush alone (Ibid). By no measure does the legislature unilaterally hold so much power over
issues of great national importance, foreign or domestic. The executive is the head of state and
of government. His power has no rival.
According to the Framers, the people are the ones that give legitimacy to the government.
The president and the legislature are directly accountable to the people because they must run in
elections. If it follows that elected officials draw their power from the people, then the dominant
political figure should also be the dominant government official. This notion is demonstrated by
the current state of U.S. politics. Presidential elections draw much more attention than do
Congressional elections. Of course there is only one president, but there are five hundred thirty
five members in both houses of Congress. Nevertheless, if Congress were the more dominant
branch, it would play out in elections. In the 2012 election, over 128,000,000 votes were cast for
president while about 108,000,000 were cast in congressional elections (Democratic House
Candidates). Speaking of elections, another notable weakening of the legislature occurred in
the 2000 presidential election. A razor-thin majority of conservative Supreme Court justices
handed the presidency to their favorite candidate (Kairys, Bush v. Gore Blues). While the
Kairys article emphasizes the growing power of the judiciary, the election also signifies
presidential power because of how the justices who made the decision got there in the first place:
presidential appointment. Conservative justices appointed by conservative presidents bypassed
the constitutionally defined process for deciding a disputed election and gave a conservative the
office of president, usurping congressional authority and further emboldening the executive. For
good or for bad, President Bush was given even more of a spotlight.
Indeed, most people know who the president is, but they cannot name their particular
members of Congress. The presidents views on the issues are more widely known than those of

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Congress, and his popularity and approval rating are generally higher than those of Congress.
Some may say that this is true because of how important the office of president is: exactly! The
president sets the agenda of the nation. Congress often times initiates legislation because the
president proposes it. The strength of the presidents bully pulpit has no equal. No other single
elected official can command the attention of the people like the president, not even the
leadership of Congress combined. When the president calls on the people to pressure their
members of Congress, the people listen. These things may seem trivial in the grand scheme of
the national government, but the peoples desire must come into play in a democratic system.
Who else is the government supposed to serve but its people? The Framers wanted the
legislature to be the dominant branch, but the people have given the executive more authority
over their government.
It is safe to say that the Framers did not intend nor imagine that either branch of
government would become as powerful as they are today. Of course the United States and the
world were not as complex in the 1700s as they are today, so changing times have required and
led to the evolution of governments power and scope. The mostly broad powers given to the
three branches by the Constitution have been interpreted over the years in a manner which has
vastly expanded the reach of government. Legislative delegation, an increasingly complex
system of international relations, the will of the people, and the inherent desire for more power
have been responsible for raising the executives power to the point of dominating over the
legislature. The amount of power which the executive now holds would probably be
unacceptable to the Founders. Only time will tell if the pendulum of power will swing back in
the direction of the legislature as the Framers intended or whether the executive will become
even more powerful.

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Works Cited
Balkin, Jack. "Obama and the Imperial Presidency." The Guardian. N.p., 12 Nov. 2008. Web. 22
Feb. 2013.
Cline, Seth. "Leaked Memo Outlines Policy for Killing Americans With Drones." US News.
U.S.News & World Report, 5 Feb. 2013. Web. 22 Feb. 2013.
"Democratic House Candidates Received More Votes Than Republicans." Huff Post Politics.
N.p., 8 Nov. 2012. Web. 24 Feb. 2013.
Epstein, Lee, and Thomas G. Walker. Constitutional Law for a Changing America: Institutional
Powers and Constraints. Washington, D.C.: CQ, 2011. Print.
Greenwald, Glenn. "Obama DOJ Again Refuses to Tell a Court Whether CIA Drone Program
Even Exists." The Guardian. N.p., 14 Feb. 2013. Web. 21 Feb. 2013.
Kairys, David. "Bush v. Gore Blues." JURIST - Legal News and Research. University of
Pittsburgh School of Law, n.d. Web. 21 Feb. 2013.