3 Takeaways™ Presidential Power: How It Grows and What Comes Next (#283)
Jan 6, 2026
Jack Goldsmith, a Harvard Law professor and former head of the Justice Department's Office of Legal Counsel, explores the nuances of presidential power. He discusses why presidents often test constitutional limits, drawing on historical figures like FDR and Trump. Goldsmith explains the concept of departmentalism and its implications for the separation of powers. He raises pivotal questions about the legality of military actions, like the Venezuela invasion, and critiques Congress's failure to assert its war powers, emphasizing that politics, not just law, shapes presidential authority.
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Judicial Supremacy Is Norm-Based
- Judicial supremacy is as much a political norm as a constitutional rule and can be resisted by other branches.
- The Court's rulings rely on the political branches for enforcement and legitimacy.
Court Decisions Depend On Political Backing
- The Supreme Court is aware of political realities and sometimes ducks cases to avoid confrontation with the president.
- Its authority depends on the willingness of Congress and the president to let it decide issues.
Each Branch Interprets The Constitution
- Departmentalism means each branch interprets the Constitution for itself, especially the president when enforcing laws.
- Presidents and Congress can challenge Supreme Court precedents, driving constitutional change over time.
