3 Takeaways™ Presidential Power: How It Grows and What Comes Next (#283)
Jan 6, 2026
Jack Goldsmith, a Harvard Law professor and former head of the Justice Department's Office of Legal Counsel, explores the nuances of presidential power. He discusses why presidents often test constitutional limits, drawing on historical figures like FDR and Trump. Goldsmith explains the concept of departmentalism and its implications for the separation of powers. He raises pivotal questions about the legality of military actions, like the Venezuela invasion, and critiques Congress's failure to assert its war powers, emphasizing that politics, not just law, shapes presidential authority.
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Why Presidents Lead Constitutional Change
- The presidency is phrased in open-ended terms, making the president the prime mover in government.
- Unitary, politically responsive presidents take initiative where courts and Congress are limited.
FDR's Transformative Presidency
- Franklin Roosevelt vastly expanded executive action with controversial measures like the bank holiday and Court-packing efforts.
- FDR used executive orders and threats to reshape the bureaucracy and constitutional practice.
Judicial Supremacy Is Norm-Based
- Judicial supremacy is as much a political norm as a constitutional rule and can be resisted by other branches.
- The Court's rulings rely on the political branches for enforcement and legitimacy.
