DUBNER: So I wanted to speak with you today about a new essay that you’ve written that was published in the American Academy of Arts and Sciences Journal Daedalus. Your essay was called “Presidential leadership and the separation of powers.” You argue that the presidents that generally judged as great — Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, and Ronald Reagan, you name — are generally the “presidents who most frequently tread on constitutional norms.” And you ask, “How can our top presidential leaders also be major lawbreakers?” OK, so how can they?
POSNER: The law actually prevents presidents from doing great things. That, in a nutshell, is the problem. The law, constitutional law in particular, but also laws passed by Congress, set down a long time ago, and people are imagining that the President should do one thing but not necessarily other things. And then there’s a huge convulsion. Times change. There’s a war. There’s a depression. These old laws are in place, and a very sort of modest president might obey them and not solve the problems, but the great presidents are the ones who basically push it aside so that they can do something great.
Something great in their eyes, at least. But also: something unilateral. Indeed, if you didn’t know any better, you’d think that most presidents – and especially the two main candidates running for the position this year – can make just about anything happen, just by willing it so.