The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers
By Saikrishna Bangalore Prakash
The Belknap Press of Harvard University Press, 2020

Saikrishna Prakash’s book The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers was out of date a week before its publication.

After considering the different grounds on which presidents have claimed to “amend their own constitutional powers via practice” - and the bipartisan nature of such “presidential creep” – Prakash ends by assuring us that:

. . .no president ever admits that he has amended the Constitution by virtue of his election or otherwise. Likewise, no chief executive ever confesses that his constitutional office can be as big as he can make it, primarily because the assertion remains to this day jarring to the ear (how long that will remain so is unclear). Finally, contra Theodore Roosevelt, no sitting president has yet said that he can do anything he pleases unless there is a specific prohibition against it.

On April 13th President Trump was pressed (rather too lightly) during a press briefing about a tweet where he claimed to hold the power to reopen states during the coronavirus pandemic. Reinforcing his delusion, he responded saying that “when somebody’s the president of the United States the authority is total, and that’s the way it's gotta be. . .the authority of the president of the United States, having to do with the subject we’re talking about, is total.”

Prakash’s book is careful to stress that the expansion of presidential authority is not a proclivity restricted to one party, or its allowance to any one branch. Still an important takeaway from the book is that it really does matter what kind of person is president:

Where there was once a duty on the part of presidents to never trespass against the Constitution, there is now a presidential power to modify it. When modern presidents are the prime movers, pushing to reform constitutional conceptions and values, they are essentially calling for a change to the Constitution itself.

So when he writes that “[t]hough President Truman succeeded in starting a war on his own. . .he was rather disturbed by what his acts portended for the future. He admitted, ‘I sit and shiver. . .at the thought of what could happen with some demagogue in this office I hold’ And now, so do the rest of us,” it is unfortunate the wondering “what could happen” is an implicit denial of the obvious: the current occupant is a demagogue, a very dangerous demagogue, whose perniciousness is likely limited mainly by his intelligence and cognitive atrophy (certainly not by Republicans).

Prakash’s word choice and party-neutral approach is probably judicious insofar as it prevents the book from becoming too much an object of its time and assists in persuading those who are not so open to originalism.

That's not meant to imply the book is monotonous or unengaging. There was a threat of this in the initial chapters where the author details how and why presidents amend the constitution, but it becomes more arresting as it goes. Prakash refers to the presidential oath as a “beguiling promise” and a “bunkum” ceremony, his comments on war powers are instructive (“the legal question is whether the president can wage war without congressional authorization, not whether presidents have waged war without Congress using the phrase ‘declare war,” adding later that, for example, “the two Iraq Wars, and the war against Al-Qaeda, were constitutional successes. In each case, Congress decided to authorize military force.”), and his frustration with former Associate Justice Felix Frankfurter’s supplying of “a rather rough road map for presidential aggrandizement” in his ruling on Youngstown Sheet & Co. V. Sawyer and the view that presidential “practice makes perfect” is considerable.

In the same ruling, as Prakash quotes, Frankfurter as declaring “that ‘[d]eeply embedded traditional ways of conducting government cannot supplant the Constitution.’” Prakash follows up:

Although Frankfurter ruled against President Truman’s claim of authority in Youngstown, his theory clearly contemplated that had previous presidents taken more acts akin to Truman’s seizure, those “deeply embedded” practices would “supplant the Constitution.” Declaring that practice cannot change the Constitution while clearly admitting that it can is remarkable. It is the hypocrisy that one living constitutionalist – Frankfurter – paid to the virtues of constitutional fidelity and stability.

Saikrishna Prakash’s The Living Presidency is everything this sort of book ought to be: it is smart, clear, full of important distinctions and thought-inducing observations, and has an unambiguous vision for how we ought to approach our constitutional framework. He ends with a variety of proposals to “recage the executive lion,” yet one cannot help and think although “[a]t its best, congress solemnly resolves and enacts. At their best, federal judges carefully opine and judge. The executive vigorously acts. It does. That was true at the Founding and it remains so today,” they are too seldom at their best and acting vigorously is altogether too much doing in the first place.

—David Murphy holds a Masters of Finance from the University of Minnesota.