Synopsis: The President of the United States has a lot of powers that we think are given to him by the U.S. Constitution. You might be surprised to find out, however, that very little in that document actually outlines the job or the authority the Commander-in-Chief possesses. We talk to a historian about how executive powers and privilege for the President were created not by Congress but by the first man to hold the nation’s highest office.

Host: Marty Peterson. Guest: Harlow Giles Unger, historian and author of the book, Mr. President: George Washington and the making of the nation’s highest office.

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George Washington and Presidential Powers

Marty Peterson: Like chief executives before him, President Obama has issued executive orders and proclamations without having to have them voted on in the House of Representatives or the Senate. Executive orders are very convenient for the president – but they leave congress out of the loop altogether. Why would the framers of the constitution allow the president to bypass congress and create orders that have the force of law?

Harlow Giles Unger: Nothing in the Constitution gives the president the right to issue a proclamation or executive order.

Peterson: That’s Harlow Giles Unger, noted historian and journalist, and author of the book, “Mr. President: George Washington and the making of the nation’s highest office.”

Unger: They have the force of law, and the president cannot write laws – that’s why congress is called a legislature. Only congress can write laws, yet Washington issued the first proclamation and in the course of his presidency he issued eight executive orders that had the force of law.

Peterson: Unger says that Washington actually had to create the presidency that we know today. He says the framers didn’t want the man at the top to have any actual power, so they didn’t give him much to do.

Unger: The constitution says the executive power shall be invested in the President of the United States, but it then fails to define executive power, and it fails to say what the president should do with it other than execute the Office of the President – whatever that means. Well it meant nothing and that’s exactly what the framers intended. The president was to do nothing. The framers wrote a constitution that left the president a figurehead. They had lived under the tyranny of an absolute monarch, George III of England, and they were not about to let their president become another King George, so they created a figurehead and that’s all George Washington was when he took his oath of office as President of the United States. He was a beloved old man that other founding fathers had put on the throne hoping he’d smile and nod off to sleep.

Peterson: He says the founding fathers were very keen on keeping most of the power in the House of Representatives.

Unger: They had written the constitution in a way, as James Madison put it, so that in our government the executive department is not the stronger branch of the system, but the weaker. The constitution begins “We the people,” and it gave the powers of governing to the people through the House of Representatives, which was the only body directly elected by the people. Senators at the time were named by various state legislatures, and the president, of course, was elected by the Electoral College. The way they miscalculated, though, was the man who was unanimously elected, and his name was George Washington, and he was not about to sit and do nothing for four years in office.

Peterson: How could they expect Washington, a general in the army, a successful businessman and natural leader to sit back and do nothing? Unger said they underestimated him, but Washington showed congress that he had no desire to let them have all the power.

Unger: When the first congress adjourned in the fall of 1789, they adjourned without appropriating any money for Washington to run the government, so the government shut down. Congress shut down the government, if you can imagine such a thing ever happening. But that’s exactly what they did and Washington was not about to sit by and do nothing. He ordered his treasury secretary, Alexander Hamilton, to go to private banks and borrow funds. Again, it was spring when congress was out of session. Indians and the Indian nations were considered foreign nations at that time and had attacked settlers in the Ohio territory, and Washington was not about to sit by and do nothing while foreigners attacked our citizens. So he took the law – the constitution in his own hands – and in direct violation of the constitution, raised troops and sent them to war without congressional consent.

Peterson: That was the first time a president sent troops to war without a vote from congress, and it set a precedent followed by other u-s commanders-in-chief throughout our history.

Unger: We’ve had more than a dozen wars since then and congress has declared war only five times. All the other wars, which the United States Army and Navy have participated, have been declared, in a sense, by the president with the consent of Congress. So Washington, from the beginning, had to assume powers that were not granted by the constitution in order to keep the government functioning, in order to fulfill his oath to preserve, protect and defend the constitution. He had to violate the letter of the constitution to uphold the spirit and defend the nation.

Peterson: Unger says that the power of executive orders is a double-edged sword – it can be used recklessly or wisely, depending on who is in office.

Unger: One of the most famous uses of that power was Abraham Lincoln’s emancipation proclamation that freed the slaves. As with all the powers Washington assumed to establish – what modern scholars called the imperial presidency – of all of these powers that he established, none of which are constitutional, many presidents like Lincoln who used the power to issue the proclamation, many of these powers have been used wisely, as they were by Washington. But many have been used recklessly. A lot depends on the president.

Peterson: It’s amazing how the executive order has blossomed from the eight that Washington signed during his tenure, and the numbers issued after he left office.

Unger: Since the beginning of our government in 1789, Congress has passed 20,000 laws. The president’s have issued 13,500 executive orders and proclamations with the force of law. This is not constitutional, but they’ve done so. President Obama’s issued almost 200 in the years he’s been president. Woodrow Wilson issued 1,800. Franklin Roosevelt, 3,500. These are all laws that presidents have written, have put into effect without the congressional consent. It’s outrageous at times.

Peterson: Not only can the president issue executive orders, Unger says he can also claim “executive privilege”.

Unger: This too comes from George Washington who refused to give the House of Representatives any data on the negotiations of a foreign treaty with Britain. It was called the J Treaty and had been passed by the Senate. Under the constitution, a treaty becomes the law of the land once it is approved by the Senate and signed by the president. The House tried to inject itself into foreign affairs by refusing to fund the commission that was to operate under that treaty, and it demanded to see the negotiations for the treaty and Washington refused. He gave them a lesson in constitution law saying that they had no say, no prerogative over foreign affairs. That treaty negotiation was his domain, and once it was passed by the senate, it became the law of the land and the house had no choice but to obey the law of the land and fund it.

Peterson: Unger says Washington was even prepared to take some very drastic steps to see that his wishes were carried out.

Unger: Behind the scenes, Washington threatened to arrest any House members that voted against funding that. And that was the beginning of executive privilege and the separation of powers between executive branch and the legislative branch.

Peterson: Washington wasn’t the only official that molded the constitution. Unger says that the Supreme Court also set precedents by deciding what its job would be.

Unger: The Constitution did not give the Supreme Court much power. The Supreme Court was established as an appeals court to rule on appeals from lower courts and that’s it. It wasn’t until the end of the Adams administration and beginning of the Jefferson administration that John Adams, one of his last acts of president was to appoint John Marshall chief justice of the Supreme Court. And it was John Marshall and his court that assumed powers for the judiciary, again, outside the constitution. Nothing in the constitution gives the Supreme Court the right of judicial review. John Marshall assumed it. And in the course of 35 years, he was the longest serving chief justice in American history. He remade and he reshaped the judiciary. He rewrote the constitution giving the judiciary the power to throw out laws that were deemed unconstitutional – federal laws, state laws and local laws.

Peterson: It makes you wonder, if Washington hadn’t been elected president, would we have lived in a different country now?

Unger: It would have fallen apart. It would have never lasted as a nation. Jefferson, himself, when he went to beg Washington to serve a second term, Washington did not want to become president. He served as commander in chief of the armed forces for eight years in the Revolutionary War and he wanted to go home. He loved Mt. Vernon, he loved farming, he loved his wife, and stepchildren and step grandchildren. He wanted to go home, but Jefferson begged him saying the nation will fall apart. North and South will hang together. These are Jefferson’s words: “North and South will hang together if they have you to hang on to.” So everyone admitted from the north, south, east and west that Washington was the only man who’d keep the country united.

Peterson: Unger adds that, in his opinion, George Washington was our greatest and most unselfish president who acted only in the best interests of the country. You can read more about how Washington created the office of the presidency in Harlow Giles Unger’s book, “Mr. President,” available in stores and online. He also invites listeners to visit his website at Harlow Giles You can find out more about all of our guests on our site at Viewpoints Our show is written and produced by Pat Reuter. Our production directors are Sean Waldron and Reed Pence. I’m Marty Peterson.