Executive Power and Bureaucracy · Weeks 19-27

The Modern Presidency

Tracing the growth of executive orders and unilateral presidential action.

About This Topic

The modern American presidency exercises powers that the Founders could not have fully anticipated. Students trace how executive power expanded through the 20th and 21st centuries: the growth of the administrative state, the assertion of executive privilege, the use of executive orders and proclamations to make policy unilaterally, and the development of executive agreements as alternatives to Senate-ratified treaties. Key cases include FDR's New Deal programs, Truman's Korea intervention, Nixon's impoundment of funds, and the post-9/11 expansion of executive surveillance authority.

The constitutional basis for this expansion is contested. Students examine the unitary executive theory, which holds that the President has broad inherent authority over the executive branch, alongside structural arguments that Congress has ceded too much authority to the executive through broad delegations. Supreme Court cases including Youngstown Sheet & Tube Co. v. Sawyer and INS v. Chadha provide foundational frameworks for analyzing when executive action exceeds constitutional limits.

Active learning works well here because the question of appropriate presidential power is genuinely contested, with real stakes for democratic accountability. Structured debates and case study analysis develop the constitutional reasoning skills students need to evaluate specific claims about executive authority.

Learning Objectives

• Analyze the historical factors that led to the expansion of presidential power in the 20th and 21st centuries.
• Evaluate the constitutional arguments for and against the unitary executive theory.
• Compare and contrast the use of executive orders and executive agreements in presidential policymaking.
• Critique the balance of power between the President and Congress in contemporary US government, citing specific examples.
• Synthesize information from Supreme Court cases like Youngstown Sheet & Tube Co. v. Sawyer to assess the limits of executive authority.

Before You Start

Foundations of American Government: Separation of Powers

Why: Students need a solid understanding of the distinct roles and powers of the legislative, executive, and judicial branches to analyze the expansion of executive authority.

The Constitutional Convention and the Presidency

Why: Understanding the original intent and limitations placed on the presidency by the Founders provides essential context for tracing the growth of executive power.

Key Vocabulary

Executive Order	A directive issued by the President of the United States to federal agencies that manages operations of the federal government. These orders have the force of law.
Unitary Executive Theory	A theory of American constitutional law holding that the President possesses the power to control the entire executive branch. This theory suggests broad inherent presidential authority.
Executive Agreement	An international agreement made by the executive branch of the U.S. government with foreign governments, without ratification by the Senate. It is distinct from a treaty.
Delegation of Power	The act of Congress granting authority to the executive branch or administrative agencies to make rules and decisions in specific areas, often a point of contention regarding presidential power.
Executive Privilege	The right of the President and other high-level executive branch officers to withhold information from Congress, the courts, and the public in certain circumstances.

Active Learning Ideas

Case Study Analysis: Executive Orders Through History

Groups receive the texts and contexts of four significant executive orders (FDR's Japanese American internment order, Truman's desegregation of the military, Obama's DACA order, Trump's travel ban). They analyze each using Justice Jackson's Youngstown framework, categorizing the presidential action and evaluating its legal and democratic legitimacy.

⏱ 55 min·Small Groups

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Formal Debate: Congress vs. the President

Students argue two positions: that executive power expansion is a necessary response to modern governance complexity, and that it represents a dangerous erosion of constitutional checks and balances. After individual research and structured argument, the class discusses whether the debate has a clear resolution or depends on contested value judgments about efficiency versus accountability.

⏱ 50 min·Pairs

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Socratic Seminar: Steel Seizure Case

Students read excerpts from the Youngstown Sheet & Tube Co. v. Sawyer opinions, including Justice Jackson's three-category framework for evaluating presidential action. The seminar focuses on how Jackson's framework applies to contemporary executive actions, requiring students to reason from constitutional text and precedent rather than political preference.

⏱ 50 min·Whole Class

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Real-World Connections

Presidential actions on immigration policy, such as the Deferred Action for Childhood Arrivals (DACA) program, often rely on executive orders and face legal challenges, demonstrating the direct impact of unilateral presidential action on millions of people.

The negotiation and implementation of international trade deals, like the USMCA, frequently involve executive agreements, bypassing the traditional treaty ratification process and affecting American businesses and consumers.

Debates in Congress over funding for specific executive branch agencies or the President's authority to impound funds highlight the ongoing tension between the legislative and executive branches over resource allocation and policy implementation.

Watch Out for These Misconceptions

Common Misconception

Executive orders have the same legal status as laws passed by Congress.

What to Teach Instead

Executive orders are instructions to executive branch agencies, not legislation. They cannot override existing statutes, though they can direct how agencies exercise discretionary authority Congress has granted. Courts can review executive orders for constitutional and statutory compliance. Students who examine specific cases understand why the distinction between legislative and executive power matters even when orders have real policy effects.

Common Misconception

Presidential power has expanded steadily in one direction throughout American history.

What to Teach Instead

Presidential power has expanded and contracted in response to specific events, congressional responses, and judicial rulings. Congress reasserted authority after Vietnam and Watergate through the War Powers Resolution and the Budget and Impoundment Control Act. Courts have sometimes checked executive overreach. Understanding this back-and-forth is more accurate than a simple expansion narrative and better prepares students to evaluate current debates.

Assessment Ideas

Discussion Prompt

Pose the question: 'To what extent has Congress ceded too much power to the President in the modern era?' Ask students to support their arguments with at least two specific historical examples or policy areas discussed in class.

Quick Check

Provide students with a brief scenario describing a hypothetical presidential action (e.g., directing an agency to halt a specific regulation). Ask them to identify whether the action is most likely an executive order, executive agreement, or an exercise of executive privilege, and to briefly explain their reasoning based on the definition.

Exit Ticket

On an index card, have students write one factor that has contributed to the expansion of presidential power and one potential democratic implication of increased unilateral presidential action.

Frequently Asked Questions

What is an executive order and can Congress override it?

An executive order is a directive from the President to federal agencies about how to exercise their existing authority. Congress can override it by passing legislation that specifically prohibits the action the order directs, though the President can veto such legislation. Courts can invalidate executive orders that exceed constitutional authority or contradict existing statutes.

What is the difference between an executive agreement and a treaty?

Treaties require approval by two-thirds of the Senate; executive agreements do not. Presidents have used executive agreements for most significant international commitments since WWII, partly because they avoid the Senate ratification hurdle. Executive agreements are binding under international law but arguably easier for future presidents to reverse than Senate-ratified treaties, which creates questions about reliability in long-term diplomacy.

What is the War Powers Resolution and has it been effective?

The War Powers Resolution of 1973 requires the President to notify Congress within 48 hours of committing forces to armed conflict and limits deployments to 60 days without congressional authorization. Every president since Nixon has argued it is unconstitutional, and it has rarely constrained actual military action. Most scholars consider it largely ineffective at limiting executive war-making authority as a practical matter.

How does active learning help students understand the expansion of presidential power?

The constitutional questions around presidential power involve genuine interpretive disagreements, not just facts to memorize. When students analyze actual executive orders using Justice Jackson's framework, argue competing positions in structured debates, and reason from constitutional text to current cases, they build the kind of constitutional thinking that transfers to new situations rather than producing only memorized conclusions.