New Books Network Executive Power and the President Who Would Not Be King: A Conversation with Michael McConnell
May 21, 2025
Michael McConnell, a renowned constitutional scholar and Stanford Law professor, dives into the evolution of executive power in America. He critiques the gap between the Founders' vision and today's presidency, highlighting the challenges of presidential authority and the implications of unilateral actions. The conversation spans key historical moments, including the Nixon and Roosevelt administrations, and explores the Take Care Clause as a vital restraint. McConnell also discusses the emergence of the 'imperial presidency' and what it means for democracy today.
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Justice Jackson's Three-Tier Test
- Justice Jackson's three-tier test classifies presidential authority into aligned with Congress, opposed to Congress, or in a "zone of twilight."
- The Supreme Court nominally uses this but often ignores the strict categories in practice.
Problems with Three-Part Framework
- The three-part test causes confusion because statutory interpretation is complex and the "twilight zone" lacks clear guidance.
- Courts should decide authority, not policy outcomes influenced by political or situational imperatives.
Founders Shocked by Modern Presidency
- Founders would be shocked by how modern presidents act unilaterally without regard for Congress.
- Madison feared Congress would dominate, but instead the executive power has expanded beyond original expectations.