By Lily Gold­blatt
UConn Jour­nal­ism

Read here to learn more about expan­sions of exec­u­tive pow­er in the 2000s by Pres­i­dents George W. Bush, Barack Oba­ma and Don­ald Trump dur­ing his first term.

George W. Bush (2001–2009)

The War on Ter­ror and the uni­tary exec­u­tive the­o­ry

While not the first pres­i­dent to wield his exec­u­tive pow­er so expan­sive­ly, George W. Bush used it in a way that was unprece­dent­ed.

A major turn­ing point came after the Sept. 11, 2001 ter­ror­ist attacks on New York and Wash­ing­ton, D.C. Bush used these attacks as the basis for sev­er­al res­o­lu­tions and gov­ern­men­tal actions that would cause expo­nen­tial increas­es in exec­u­tive pow­er. 

Howard Ball, a polit­i­cal sci­en­tist and for­mer pro­fes­sor at the Uni­ver­si­ty of Ver­mont, argued in his book “Bush, the Detainees, and the Con­sti­tu­tion,” that Bush used two sig­nif­i­cant res­o­lu­tions after Sept. 11 to expand his mil­i­tary pow­ers uni­lat­er­al­ly.  

The first res­o­lu­tion, passed one week after the attacks, allowed for the pres­i­dent to use mil­i­tary force against any enti­ty or per­son that he believed was involved in the attack. The oth­er was a joint res­o­lu­tion that allowed the pres­i­dent to send armed forces to Iraq in the fol­low­ing year.  

Accord­ing to Ball, with the mil­i­tary force res­o­lu­tion, the admin­is­tra­tion relied on pow­er that the pres­i­dent is not explic­it­ly giv­en in the Con­sti­tu­tion but can argue are nec­es­sary for the nation­al inter­est, to cen­tral­ize deci­sion-mak­ing in  the exec­u­tive branch.  

“As passed and imple­ment­ed by the Bush White House, the res­o­lu­tion grant­ed Bush the broad­est author­i­ty to do bat­tle against any nation, orga­ni­za­tion, or per­son he deter­mined to have been involved in 9/11 or to be part of plan­ning future ter­ror­ist actions against the Unit­ed States,” Ball wrote.  

The USA Patri­ot Act, a 342-page bill which passed Con­gress 45 days after the ter­ror­ist attacks, gave the exec­u­tive branch the pow­er to sus­pend due process and habeas cor­pus in the case of sus­pect­ed ter­ror­ists or those sus­pect­ed to be involved with ter­ror­ism.  

In a Sen­ate Judi­cia­ry Com­mit­tee on the over­sight of the USA Patri­ot Act, George­town Uni­ver­si­ty con­sti­tu­tion­al law pro­fes­sor David Cole tes­ti­fied on the con­sti­tu­tion­al and civ­il lib­er­ty con­cerns that came with the act.   

“Sec­tion 412 of the Patri­ot Act allows the Attor­ney Gen­er­al to lock up for­eign nation­als with­out charges for sev­en days, and indef­i­nite­ly there­after if they are charged with an immi­gra­tion vio­la­tion,” wrote Cole. “The law does not require any show­ing that the for­eign nation­al pos­es a dan­ger to the com­mu­ni­ty or a risk of flight — the only two con­sti­tu­tion­al­ly valid rea­sons for pre­ven­tive deten­tion.” 

Bush used the uni­tary exec­u­tive the­o­ry to argue for expand­ed exec­u­tive pow­er. The the­o­ry holds  that “the Con­sti­tu­tion man­dates an inte­grat­ed and hier­ar­chi­cal admin­is­tra­tion — a uni­fied exec­u­tive branch — in which all offi­cers per­form­ing exec­u­tive busi­ness are sub­or­di­nate to the Pres­i­dent, account­able to his inter­pre­ta­tions of their charge, and remov­able at his dis­cre­tion,” explained Stephen Skowronek, a pro­fes­sor of polit­i­cal and social sci­ence at Yale, in an essay for Har­vard Law Review.  

Polit­i­cal sci­en­tists Mark Rozell and Mitch Sol­len­berg­er of George Mason Uni­ver­si­ty and Uni­ver­si­ty of Michi­gan-Dear­born, respec­tive­ly, point to the Bush administration’s claim of exec­u­tive priv­i­lege to keep from releas­ing doc­u­ments or allow­ing aides to tes­ti­fy before Con­gress about his deci­sion to force the res­ig­na­tions of sev­er­al U.S. attor­neys. The U.S. Court of Appeals sug­gest­ed the case would become moot because sub­poe­nas would expire at the end of that Con­gress.  

Rozell said that Bush employed a strat­e­gy of delay and non-com­pro­mise with Con­gress when they attempt­ed to exer­cise over­sight on his exec­u­tive actions and that this set a prece­dent for future pres­i­dents. 

“Pres­i­dents after George W. Bush, I think, saw the util­i­ty of adopt­ing a kind of no-com­pro­mise posi­tion in some of these inter-branch con­flicts and ulti­mate­ly win­ning bat­tles through a process of delay and non-coop­er­a­tion with those who have com­pul­so­ry pow­er,” Rozell said in an inter­view.  

Sol­len­berg­er said that Bush also expand­ed his exec­u­tive pow­er through the use of sign­ing state­ments, which the pres­i­dent issues when he signs a law passed by Con­gress to clar­i­fy or give his own inter­pre­ta­tion of the law. 

 “Where Bush was aggres­sive was using these sign­ing state­ments to pro­vide a uni­tary exec­u­tive the­o­ry inter­pre­ta­tion of the pres­i­den­cy,” Sol­len­berg­er said in an inter­view. “Basi­cal­ly, any kind of restric­tions on the exec­u­tive branch, on the pres­i­den­cy, that were in laws that Con­gress duly passed, Pres­i­dent Bush would con­sid­er them to be null and void.” 

While Bush was not the first pres­i­dent to do this, Sol­len­berg­er said he was one of the most aggres­sive.

Barack Obama (2009–2017)

Con­tin­u­ing his pre­de­ces­sor’s expan­sion in for­eign pol­i­cy pow­er

Barack Oba­ma cam­paigned on a promise to stay true to the Con­sti­tu­tion in con­trast with the Bush admin­is­tra­tion. Despite this, he also makes uni­lat­er­al pres­i­den­tial actions in terms of sign­ing state­ments and mil­i­tary pow­er. 

“I think pres­i­den­tial pow­er, there’s no ratch­et­ing down, it’s always ratch­et­ing up,” Mitchel Sol­len­berg­er, of Uni­ver­si­ty of Michi­gan-Dear­born, said in an inter­view. “Demo­c­ra­t­ic pres­i­dents have been cer­tain­ly will­ing to uti­lize the increased pres­i­den­tial pow­er and expand it.” 

In a 2013 essay for Pres­i­den­tial Stud­ies Quar­ter­ly, a peer-reviewed polit­i­cal sci­ence jour­nal, Sol­len­berg­er and co-authors Mark Rozell and Jef­frey Crouch point to two con­tro­ver­sial sign­ing state­ments at the end of Obama’s first term that expand­ed exec­u­tive pow­er.  

The first one, attached to an omnibus year-end spend­ing bill, object­ed to sev­er­al pro­vi­sions that he believed vio­lat­ed, “his con­sti­tu­tion­al duty to super­vise the exec­u­tive branch.” The sec­ond one came when he signed the Nation­al Defense Autho­riza­tion Act for Fis­cal Year 2012, where he argued that cer­tain pro­vi­sions in the bill went against his “con­sti­tu­tion­al for­eign affairs pow­ers.” 

Sign­ing state­ments are often object­ed to by mem­bers of Con­gress because they sig­nal an attempt by the admin­is­tra­tion to bypass leg­isla­tive input in a pol­i­cy debate. 

“What the pres­i­dent could not achieve through lengthy nego­ti­a­tions with Con­gress, he believed he could man­date uni­lat­er­al­ly in his sign­ing State­ment,” Sol­len­berg­er and co-authors wrote. 

Sol­len­berg­er said Oba­ma expand­ed pres­i­den­tial pow­er through using drone strikes to kill peo­ple in the Mid­dle East, and he was the first pres­i­dent to “kill a U.S. cit­i­zen in a non-war set­ting and dou­ble down on it.” 

In 2011, Oba­ma ordered the killing of Anwar al-Awla­ki, an Amer­i­can cit­i­zen liv­ing in Yemen who was asso­ci­at­ed with the ter­ror­ist group Al-Qae­da. Two weeks lat­er, al-Awlak­i’s 16-year-old son was also killed in a drone strike that offi­cials said was a mis­take, accord­ing to the Nation­al Secu­ri­ty Archive, a site by jour­nal­ists and schol­ars to check ris­ing gov­ern­ment secre­cy. Awla­ki was the first U.S. cit­i­zen since the Civ­il War to be hunt­ed down and killed with­out tri­al by his own gov­ern­ment. 

At a 2011 con­gres­sion­al hear­ing on a res­o­lu­tion autho­riz­ing lim­it­ed use of armed forces in Libya, U.S. Rep. Jer­rold Nadler, a Demo­c­rat from New York, said: “We have been slid­ing for 70 years to a sit­u­a­tion where Con­gress has noth­ing to do with the deci­sion about whether to go to war or not, and the pres­i­dent is becom­ing an absolute monarch. We must put a stop to that right now, if we don’t want to become an empire instead of a repub­lic.” 

In 2012, the House Judi­cia­ry Com­mit­tee met to dis­cuss the Oba­ma admin­is­tra­tion’s abuse of exec­u­tive pow­er, specif­i­cal­ly ref­er­enc­ing the recent “fast and furi­ous” scan­dal in which Oba­ma claimed exec­u­tive priv­i­lege over cer­tain doc­u­ments sought by the Con­gres­sion­al over­sight com­mit­tee. 

“Pres­i­dent Oba­ma has to an unprece­dent­ed extent failed to ‘take care that the laws be faith­ful­ly exe­cut­ed,’” said Rep. Lamar Smith, a Repub­li­can from Texas and chair­man of the com­mit­tee. “Instead he, has repeat­ed­ly issued blan­ket waivers that exempt large class­es of the pop­u­la­tion from duly enact­ed laws.” 

In 2014, House Repub­li­cans vot­ed to sue the Oba­ma admin­is­tra­tion for alleged­ly fail­ing to imple­ment sev­er­al pro­vi­sions of the Afford­able Care Act.  

House Speak­er John Boehn­er led the law­suit and said that Oba­ma chang­ing the health­care law with­out a vote from Con­gress was essen­tial­ly Oba­ma try­ing to make his own laws.  

“That’s not the way our sys­tem of gov­ern­ment was designed to work. No pres­i­dent should have the pow­er to make laws on his or her own,” said Boehn­er in a state­ment to the LA Times. 

Donald Trump (2017–2021)

Using exec­u­tive pow­er for per­son­al polit­i­cal gain

Don­ald Trump’s first term saw him con­tin­u­ing the trend of exec­u­tive pow­er increas­es seen with his pre­de­ces­sors.  

One week into his pres­i­den­cy, Trump issued Exec­u­tive Order 13769, which imposed a three-month trav­el ban on immi­grants from all major­i­ty Mus­lim coun­tries and stopped refugees from enter­ing the Unit­ed States for four months. 

This order was upheld in the case of Trump v. Hawaii, in which the Supreme Court ruled in a 5–4 deci­sion that “the pres­i­dent has ‘broad dis­cre­tion’ under the law to sus­pend entry into the Unit­ed States of cer­tain class­es of indi­vid­u­als when detri­men­tal to the nation­al inter­est.” 

 In May 2017, Trump ter­mi­nat­ed then FBI direc­tor James Comey after Comey con­firmed that the FBI would be inves­ti­gat­ing pos­si­ble Russ­ian inter­fer­ence in the 2016 pres­i­den­tial elec­tion.  

Trump said that he did not believe Comey was able to “effec­tive­ly lead the Bureau” in his let­ter dis­miss­ing him.  “It is essen­tial that we find new lead­er­ship for the FBI that restores pub­lic trust and con­fi­dence in its vital law enforce­ment mis­sion,” he wrote  

The Bren­nan Cen­ter for Jus­tice at NYU Law released a state­ment  call­ing Comey’s ter­mi­na­tion an assault on the rule of law.  

“The pres­i­dent has dis­missed the chief law enforce­ment offi­cer prob­ing whether the president’s advi­sors col­lud­ed with a hos­tile for­eign gov­ern­ment to influ­ence our elec­tions,” the Bren­nan Cen­ter wrote.  

In Jan­u­ary 2020, Trump launched a drone strike that killed Iran­ian gen­er­al Qasem Soleimani near an air­port in Bagh­dad. In a report for the Unit­ed Nations, French human rights activist Agnes Calla­mard found that “the US had pro­vid­ed no evi­dence that showed Soleimani specif­i­cal­ly was plan­ning an immi­nent attack against US inter­ests, par­tic­u­lar­ly in Iraq, for which imme­di­ate action was nec­es­sary and would have been jus­ti­fied.” 

Dur­ing his first term, Trump became the first pres­i­dent to be impeached twice. In Decem­ber 2019, the House vot­ed to bring charges against Trump after a whistle­blow­er filed a com­plaint that dur­ing a phone call with Ukraine’s new­ly elect­ed pres­i­dent, Volodymyr Zelen­skyy, Trump had attempt­ed to solic­it Ukraine to inter­fere with the upcom­ing 2020 elec­tion. 

Accord­ing to the let­ter from the whistle­blow­er, White House offi­cials attempt­ed to lock down records of the phone call and White House lawyers direct­ed offi­cials to remove the elec­tron­ic tran­script from the com­put­er sys­tem.  

The let­ter said that a White House offi­cial called this an “abuse” of the elec­tron­ic sys­tem because “the call did not con­tain any­thing remote­ly sen­si­tive from a nation­al secu­ri­ty per­spec­tive.” 

Trump’s sec­ond impeach­ment regard­ed the events of Jan. 6, 2021, in which a mob of Trump sup­port­ers stormed the U.S. Capi­tol build­ing fol­low­ing a ral­ly held to protest the results of the elec­toral col­lege vote, which, like the pop­u­lar vote, was won by Trump’s oppo­nent Joe Biden. Dur­ing the ral­ly, Trump espoused false claims that the elec­tion had been stolen and that he had actu­al­ly won.  

Trump made pri­or efforts to sub­vert the elec­tion results when he made a phone call to Geor­gia Sec­re­tary of State Brad Raf­fensperg­er in which he told him to “find” enough votes to over­turn the Geor­gia pres­i­den­tial elec­tion results, accord­ing to the House Res­o­lu­tion to impeach. 

Jonathan Alter, a jour­nal­ist and author who has cov­ered Amer­i­can pol­i­tics exten­sive­ly, said that the Jan. 6 insur­rec­tion was Trump’s biggest and most dan­ger­ous assault on democ­ra­cy.  

“The peace­ful trans­fer of pow­er was not just enshrined in our Con­sti­tu­tion, but was respect­ed and under­stood and in some ways tak­en for grant­ed until Jan­u­ary 6th, 2021,” Alter said in an inter­view. “We had a pres­i­dent who did­n’t believe in the Con­sti­tu­tion who was vio­lat­ing the oath that he had sworn to uphold.”