The National Constitution Center has posted this podcast: Article II and the Powers of the President (a discussion with me and Professor Christopher Schroeder (Duke), along with moderator Jeffrey Rosen). It's not a debate and we don't end up disagreeing on much (even thought there is plenty we disagree on as an academic matter) — it's mostly about whether the presidential candidates have an unduly expansive view of presidential power.
I had not thought specifically about that question previously, but as the discussion progressed I came to this conclusion: neither of the candidates has very many specific proposals that one can say are clearly contrary to Article II (mostly because most of their proposals are not very specific or rest on unclear sources of authority). But what seems especially troubling about the views of both candidates (and to some extent about the views of the current President) is more their rhetoric than specific proposals. They seem to view the President as the person who is charged with getting things done, and if Congress (or other actors) won't or can't act, the President will do it. That is not how our system is supposed to work (especially in domestic matters; foreign affairs is a bit different). The President carries out the law; nothing more. As Justice Black put it in the Steel Seizure case:
In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. . . ."
Posted at 6:51 AM