Summary of Freakonomics Radio Episode: "Has the U.S. Presidency Become a Dictatorship? (Update)"

Introduction

In the October 10, 2024 episode of Freakonomics Radio, host Stephen Dubner engages in a compelling discussion with legal scholar Eric Posner from the University of Chicago Law School. The episode, titled "Has the U.S. Presidency Become a Dictatorship? (Update)", serves as a follow-up to their 2016 conversation, delving deeper into the expansion of presidential power in the United States. This summary captures the essence of their discussions, key points, notable insights, and conclusions drawn throughout the episode.

Background: Revisiting 2016 Conversation

The episode begins with Dubner referencing their initial 2016 conversation conducted towards the end of President Obama’s second term, just before Donald Trump's election. The focus then shifts to evaluate how presidential power has evolved since then, especially in the context of Trump's presidency and the subsequent term of President Joe Biden.

Expansion of Presidential Power

Historical Context and Founders' Intentions

Eric Posner articulates that the Founding Fathers aimed to establish a strong yet constrained executive branch. "We want a powerful government that will protect us and allow commerce to flourish, but we don't want a government that becomes so powerful that it would abuse its power and interfere with our liberties." (04:24). However, Posner argues that modern presidencies have strayed significantly from these foundational intentions.

Transformation Over Time

Posner outlines how presidents have progressively amassed more power, particularly through the growth of the administrative state. From George Washington setting initial precedents to Abraham Lincoln's wartime expansions of executive authority, each subsequent president has redefined the scope of presidential power. Theodore Roosevelt, Woodrow Wilson, Franklin Roosevelt, and Ronald Reagan are highlighted as presidents who significantly expanded executive authority, often pushing constitutional boundaries to achieve their agendas.

Case Studies: Presidents and Power Expansion

1. George Washington: Tasked with defining the presidency without clear constitutional guidelines, Washington set precedents that future presidents would follow.

2. Thomas Jefferson: Known for the Louisiana Purchase, Jefferson exercised presidential discretion even when actions were deemed unconstitutional by some, emphasizing the irresistible nature of certain executive decisions.

3. Abraham Lincoln: During the Civil War, Lincoln took extraordinary measures such as suspending habeas corpus, demonstrating how crises can lead to significant expansions of presidential power.

4. Theodore Roosevelt and Woodrow Wilson: Both presidents elevated the role of the president in setting policy agendas and strengthening the administrative state, thereby increasing executive influence over domestic and foreign policies.

5. Franklin Roosevelt: His New Deal policies and wartime leadership showcased an unprecedented expansion of executive authority, setting lasting precedents for future administrations.

Constraints on Presidential Power

Despite the significant accumulation of power, Posner identifies inherent constraints on the presidency:

1. Political Support: Maintaining popularity and support from both the public and the president’s political party is crucial for sustaining executive initiatives.

2. Executive Branch Subordinates: Presidents rely on their administration's cooperation to implement policies, serving as a check on unilateral actions.

3. Judicial Oversight: While courts can challenge executive actions, they have often remained deferential, especially on significant issues, thereby offering limited restraint.

Obama’s Presidency: A Case Study in Executive Power

Accomplishments Through Statutes and Administrative Actions

Posner discusses President Obama's use of both congressional statutes and administrative powers to achieve policy goals. While Obama successfully passed significant legislation like the Affordable Care Act (ACA) and Dodd-Frank Financial Reform, he also expanded his authority through administrative actions, particularly when faced with a hostile Congress.

Challenges and Judicial Pushback

Obama's attempts to implement comprehensive immigration reform through executive actions, such as Deferred Action for Childhood Arrivals (DACA), faced legal challenges. "Our immigration law says that if you come into our country without papers, you're here illegally and you're going to get kicked out. President Obama has made it clear... he doesn't think he should kick out certain classes of people." (34:42). The Supreme Court ultimately blocked some of these initiatives, reaffirming the limitations of executive power.

Implications for Future Presidencies

Posner warns that the precedents set by Obama could enable future presidents to further expand executive authority, potentially leading to actions that push the boundaries of constitutional norms. However, he also notes the importance of political backlash and institutional constraints that can curtail excessive presidential overreach.

Presidential Primacy vs. Dictatorship

While addressing whether the modern presidency equates to a dictatorship, Posner is cautious about using the term "dictator." Instead, he prefers "presidential primacy" to describe the trend of increasing executive dominance. He acknowledges that while the presidency wields more power than the Founders envisioned, various checks—such as political support, judicial oversight, and the need for administrative cooperation—prevent it from descending into true dictatorship.

Conclusion

The episode concludes with Posner affirming that the U.S. presidency has indeed seen a substantial and cumulative expansion of power, diverging from the Founders' original vision. However, he emphasizes that this growth does not necessarily equate to a dictatorship due to existing political and institutional constraints. The conversation sets the stage for the upcoming second part of the series, where Posner updates his views based on the events following the 2016 election, including the Trump administration and the Biden presidency.

Notable Quotes

• Eric Posner (04:24): "We want a powerful government that will protect us and allow commerce to flourish, but we don't want a government that becomes so powerful that it would abuse its power and interfere with our liberties."

• Stephen Dubner (08:03): "You'd think that most presidents... can make just about anything happen just by willing it."

• Eric Posner (10:06): "Python, the founding system seems pretty nutty." (Note: This appears to be a misstatement in the transcript and likely intended to be "with the benefit of hindsight, the whole constitutional system seems pretty nutty.")

• Eric Posner (16:07): "The Madisonian checks and balances view is that we don't want a single person or a small group of people to have all the power."

• Eric Posner (49:16): "Yes, I think that is happening. Although dictatorship is such a freighted term."

Implications for Listeners

This episode serves as a critical examination of the evolution of presidential power in the United States, challenging the traditional perceptions of presidential constraints. Listeners gain insight into how historical precedents, administrative growth, and political dynamics have reshaped the executive branch, raising important questions about the future trajectory of U.S. governance.

Upcoming Episode Teaser

Dubner hints at Part Two of the series, promising an update on the presidency's evolution over the subsequent years, including perspectives on election betting markets and their impact on democracy. This continuation aims to provide a comprehensive understanding of the presidency's current standing and future prospects.