3 Takeaways Podcast Episode #283

Title: Presidential Power: How It Grows and What Comes Next
Date: January 6, 2026
Host: Lynn Thoman
Guest: Jack Goldsmith, Harvard Law Professor, co-founder of Lawfare, former head of the Office of Legal Counsel (George W. Bush administration)

Overview

Lynn Thoman speaks with Jack Goldsmith about the nature and growth of presidential power in the United States, how it has been expanded—sometimes dangerously—by leaders of both parties, and what limits, if any, truly exist on the modern presidency. They discuss historical precedents, present-day controversies (including the US invasion of Venezuela), the myth and realities of judicial supremacy, and why presidential authority grows over time.

Key Discussion Points and Insights

1. Why Do Presidents Push Constitutional Limits?

(02:00–03:12)

• The Constitution’s Ambiguity:
  The presidency is “really undefined in Article 2 of the Constitution. It doesn’t really have significant constraints…the President’s powers are phrased in open ended terms.” (Jack Goldsmith, 02:20)
• Incentives and Structure:
  Presidents are the only unitary (not decentralized) branch and can respond and act swiftly; Congress is slow and divided, courts are reactive.
• Reward for Aggression:
  History often rewards those who “tested constitutional limits.”

2. Historical Examples of Presidential Power Expansion

(03:12–04:08)

• FDR:
  Issued a record number of executive orders, threatened the Supreme Court, expanded the bureaucracy, attempted court-packing.
• George W. Bush:
  “Pushed the envelope on war powers.”
• Barack Obama:
  Used statutory authorizations in bold new ways on issues like immigration and healthcare.
• Donald Trump:
  Pushed boundaries on many fronts, seeking to assert “unprecedented” unitary control over the executive branch.

3. The President as “Prime Mover” in Government

(04:08–05:09)

• Separation of Powers:
  The system’s inefficiency empowers the president—”the only person who can say something and then have the branch act. And it’s the branch with the sword, the power to enforce.” (B, 04:14)
• Communication & Speed:
  The president can act decisively and set the agenda.

4. Judicial Supremacy — Reality Versus Myth

(05:09–06:57)

• What is Judicial Supremacy?
  The idea that “whatever the Supreme Court says the Constitution means is what it means, and that everybody else has to bow down to that.”
• History of Pushback:
  This view was controversial historically—presidents and Congress have, at times, interpreted the Constitution for themselves.
• Enforcement Limits:
  The Court “depends on the executive branch to do that”—the Court cannot enforce its judgments without the president’s cooperation.

“Ultimately, the Supreme Court, all it can do is issue opinions. It can’t enforce the opinions.” (B, 06:43)

5. Supreme Court Sensitivity to Politics

(06:57–09:16)

• Not “Political” Like Politicians, but the Court is highly aware of its own vulnerabilities.
• Historic Examples:
  • Marbury v. Madison: John Marshall strategically avoided directly confronting President Jefferson.
  • Congress can manipulate the Court (e.g., seat numbers, jurisdiction).
• Key Point: The Court sometimes “ducked” issues fearing non-enforcement by the president.

6. Departmentalism and the “Three Branches” Interpreting the Law

(09:16–10:38)

• Departmentalism:
  Each branch interprets the Constitution for itself in practice.
• Example:
  Trump’s Birthright Citizenship executive order challenged existing Supreme Court precedent.
• Legal Evolution:
  “This is one way the constitutional law changes.” (B, 09:50)

7. The Reconstructive President & Unitary Executive Theory

(10:38–12:39, 12:39–13:16)

• Reconstructive Ambition:
  Presidents like Trump seek not just to operate within the existing order but to “change the constitutional order.”
• Norms versus Laws:
  Trump disregards non-legal norms that previous presidents followed, pushing the boundaries of presidential authority.
• Unitary Executive:
  The “idea that the President has vertical control over the actions of the Executive branch because the executive power is vested in him alone.” (B, 12:43)

8. Who Ultimately Controls Federal Agencies?

(13:16–15:15)

• Independent vs. Non-Independent Agencies:
  Congress can restrict the president’s power to fire agency heads (e.g., FTC), but entities like the FBI or CIA are not independent.
• Ongoing Legal Fights:
  Where presidential power over the bureaucracy begins and ends is “definitely not clear right now.” There are pending Supreme Court cases and ongoing legal debates.
• Congress’s Role:
  Has the authority to define agency powers but tends to acquiesce.

9. The Accretion of Presidential Power

(16:18–17:37)

• Each President Builds on Precedents:
  Presidential power has grown “from Washington to Trump,” both domestically and in foreign affairs.
• Both Parties Contribute:
  “Presidential power has accrued over both Republican as well as Democratic presidencies.” (A, 17:18 / B, 17:26)

10. Presidential Power Over War & The Invasion of Venezuela

(17:37–22:21)

• Case Study: Venezuela (17:46–18:59):
  • Violated international law (UN Charter Article 2,4).
  • Under domestic law, likely considered legal—executive branch has built up a vast array of justifications for unilateral military action.
  • “The precedents for unilateral uses of power under domestic law have grown extravagant and have no practical limits.” (B, 18:41)
• Bombing Other Countries Under Trump, Obama, Biden (19:13–20:07):
  • U.S. interprets self-defense broadly under international law.
  • Domestically, president’s war powers have steadily expanded.
• Congress and Courts' Diminished Role (20:07–22:21):
  • Courts have largely abdicated oversight (“never, ever played a robust role” on the president’s war powers).
  • Congress is “completely missing in action” since the feeble War Powers Resolution of 1973.
  • Presidential reality: “What the president wants to achieve and what the president thinks he can get away with, and it’s what Congress will or won’t do to constrain him…in terms of legal constraints within the executive branch, there are very few.” (B, 21:41)

“Congress is supposed to have a robust role… but they have completely, as an institution, Congress has completely given away the store for a long time.” (B, 20:35)

11. Memorable Quote:

“That is so scary.” – Lynn Thoman (22:21)
“It’s scary, but it’s not new.” – Jack Goldsmith (22:23)

3 Key Takeaways (as given by Jack Goldsmith)

(22:26–23:52)

1. Many consequential presidents push constitutional limits.

   • “But I don’t want to leave anyone to think that pushing constitutional limits by itself makes a great or important president. It doesn’t.” (B, 22:34)

2. The Supreme Court is not the final word.

   • In reality, “presidents have a very important role… in devising constitutional meaning, largely through interactions with the court and sometimes with Congress.” (B, 22:47)

3. Presidential power grows, and grows, and grows.

   • “It tends to build over time… We’re certainly seeing the most expansive claims of presidential power we’ve seen basically ever in the aggregate. A lot of what Trump is doing, I would say most of what he’s doing builds on precedents of past presidents.” (B, 23:16–23:48)

Notable Quotes & Timestamps

• “The President is, as the Supreme Court has said, a branch of government. The executive power is vested in the president.” – Jack Goldsmith (04:22)
• “Presidents have been rewarded for acting aggressively and pushing constitutional limits.” – Jack Goldsmith (02:44)
• "The Court…depends on the executive branch to do that. [Enforcement of rulings]" – Jack Goldsmith (06:43)
• "Congress is supposed to have a robust role… but they have completely, as an institution, Congress has completely given away the store for a long time.” – Jack Goldsmith (20:35)

Flow and Tone

Jack Goldsmith's tone is measured, deeply informed, and at times sober—especially regarding the direction of American government. Lynn Thoman’s questions invite clarity and practical examples, making the discussion accessible to non-experts.

Recommended Segments with Timestamps

• Defining the President’s Power: 02:20–05:09
• Judicial Supremacy and Its Limits: 05:09–09:16
• War Powers and the Venezuela Invasion: 17:37–22:21
• Three Takeaways: 22:26–23:52

Summary

This episode provides a nuanced, historical, and practical tour of presidential power—its growth, challenges to its limits, and the ways in which both legal precedent and political inertia have enabled the executive branch to dominate domestic and foreign policy. Listeners will come away understanding why checks on the president are weaker than often assumed, why presidents habitually expand their powers, and why each extension of authority becomes the baseline for future officeholders.