The Rise of the Imperial Presidency

Robert Higgs documented what he called the "ratchet effect": during national crises, government power expands dramatically, but when the crisis passes, power never fully retracts to its pre-crisis level. Each emergency leaves the government permanently larger and more powerful than before. [4]

The 1913 changes provided both the fuel and the opportunity for this ratchet. The income tax gave the federal government effectively unlimited revenue to fund executive-branch expansion. World War I, just four years after the 16th Amendment's ratification, provided the first major crisis. The Wilson administration created new agencies, imposed censorship, drafted millions of men, and managed large sectors of the economy, all directed by the executive branch. [4] [1]

The pattern repeated with each successive crisis. The New Deal (1933-39) created dozens of executive agencies and asserted presidential authority over the economy. World War II further centralized power in the White House. The Cold War created the national security state: the CIA, NSA, and a permanent military-industrial establishment, all answerable to the president. Vietnam and Watergate briefly prompted reforms, but Andrew Rudalevige has shown how those reforms were systematically eroded within a generation. [2]

The Constitution gives Congress, not the president, the power to declare war. The Founders placed this power in the legislative branch deliberately: they wanted the decision to commit the nation to war to require broad deliberation and consensus, not the will of a single individual. [3]

The last time Congress formally declared war was 1941. Since then, presidents have committed American forces to major conflicts in Korea, Vietnam, Iraq, Afghanistan, Libya, Syria, and dozens of smaller operations, all without a congressional declaration of war. The War Powers Resolution of 1973 was Congress's attempt to reassert its authority, requiring presidential notification within 48 hours and withdrawal within 60 days without congressional authorization. Presidents of both parties have treated it as advisory at best. [3] [5]

Louis Fisher, who spent four decades at the Congressional Research Service studying war powers, concluded that this shift represents "the most dramatic and dangerous departure from the constitutional design." When a single individual can commit the nation to war, spending trillions of dollars and risking thousands of lives, without the consent of the people's representatives, the constitutional structure has fundamentally broken down. [3]

The imperial presidency was not inevitable. It required specific structural conditions that the changes of 1913 provided. The income tax gave the executive branch the revenue to build and sustain an enormous federal apparatus (military, intelligence, regulatory) answerable to the president. Without that revenue, the administrative state as we know it could not exist. [4]

The 17th Amendment removed the institutional body most likely to resist executive overreach. State-appointed senators had a structural incentive to push back against federal (and especially executive) expansion, because their appointing bodies (state legislatures) bore the costs of that expansion. Popularly elected senators face different incentives: they are more responsive to national media narratives, party leadership, and campaign donors than to state institutional interests. [1] [2]

Gary Lawson wrote in the Harvard Law Review that the post-New Deal administrative state amounts to "nothing less than a bloodless constitutional revolution," a fundamental restructuring of the government's architecture that happened without a formal amendment. The 1913 changes didn't cause the imperial presidency directly, but they removed the structural barriers that had prevented it. [4]