The American presidency is too powerful. That is what the Senate impeachment trial and the 2020 presidential election should be about. Instead, masking this deeper constitutional problem is Donald Trump and his personal abuses of power.
Yet these abuses of power are not simply the product of one errant person, but part of a longer and deeper pattern of congressional delegation and acquiescence of power to the president that needs to be reversed, especially by the next president of the United States.
The American Revolution was a product a fear of abuse of executive or royal power. Americans are familiar with the first lines of the opening paragraphs of the Declaration of Independence which begin with “When in the course of human events” and “We hold these truths to be self-evident.” But the second half of the Declaration is a bill of particulars against the excesses and abuses of power British King George III inflicted upon the colonies. They included his refusal to “Assent to Laws,” and “obstructed the Administration of Justice.” Our independence and revolt against the king were a continuation of a centuries long battle between parliamentary supremacy and monarchical authority that begin in 1215 with the Magna Charta.
So great was the fear of executive authority that in America’s first constitution, the Articles of Confederation, presidential power was vastly limited by a Congress that chose him. In adopting our present constitution in 1787, while some such as Alexander Hamilton urged for a very powerful presidency, most of the framers sought to limit this office through narrowly defined powers, impeachment, and the concepts of checks and balances and separation of powers. Constitutional framer Charles Pinkey feared giving the president too much military power would “render the Executive a monarchy.” Edmund Randolph feared similar monarchical tendencies in the president if the executive branch were treated as unitary under one person. James Madison said it had to be clear that the president did not have either legislative or judicial powers.
As originally designed, the presidency was not, as some wrongly contend today, to be a co-equal branch with Congress and the judiciary. Constitutional Convention delegate Roger Sherman said that the president ought to be “nothing more than an institution for carrying the will of the Legislature into effect.” James Madison declared in Federalist Paper 51: “In republican government, the legislative authority necessarily predominates.” The consensus of the Framers and by constitutional design, was that the presidency was envisioned to be a far weaker institution compared to Congress than it has become. Yet even with the checks imposed on it, some, such as Patrick Henry, feared the new presidency which was given “Extreme Powers; the powers of a king.”
Multiple factors changed the balance of power between Congress and the presidency. One, emergencies, such as wars, pushed the presidency in a more powerful direction, such as with Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, and Lyndon Johnson. Two, the constitutional framers never envisioned the rise of a large administrative bureaucracy under the control of a president which would augment executive authority. Three, Congress over time delegated or acquiesced significant rule making authority and discretion to the president and the executive branch to make rules or issue executive orders that carried the force of law. All this produced by 1973 as Arthur Schlesinger, Jr. aptly described, an imperial presidency that needed to be constrained.
As an immediate result of Richard Nixon’s abuses of power Congress enacted, often over presidential vetoes, several pieces of legislation. The 1973 War Powers Act aimed to limit presidential authority to deploy military force without congressional ascent. The 1974 Budget and Impoundment Act sought to limit the ability of the president to withhold and divert congressionally authorized funds. The 1976 National Emergencies Act repealed all existing presidential declarations of emergencies and purportedly circumscribed future orders. The 1978 Ethics in Government Act required disclosure of financial interests of many executive branch employees. It also included a provision for the creation of a special prosecutor to investigate the executive branch, addressing concerns stemming from Richard Nixon firing his self-appointed prosecutor Archibald Cox in the famous 1973 Saturday Night Massacre. Other laws, several hundred by estimate, while delegating power to the executive branch, sought to constrain his discretion by giving Congress a one or two-house veto of decisions made.
At the time these laws looked like limits on presidential authority, but they failed for many reasons. One, as with the Ethics in Government Act, they exempted the president from many requirements. Two, Supreme Court decisions favored executive branch power. In Immigration and Naturalization Service v. Chadha, 462 U.S.919 (1983) the Supreme Court declared the legislative veto unconstitutional. In N.R.D.C. v. Chevron, 467 U.S. 837 (1984), the Court said that disputes over the meaning of congressional statutes would be resolved in favor of executive branch interpretations. Three, Congress, in the case of the special prosecutor, let the law expire.
Four, all of these laws still assumed the president would voluntarily comply with invoking the law, such as with the War Powers Resolution, or continued to grant him broad discretion to act. For example, the National Emergencies Act never defined what a national emergency was. Finally, collectively all of these laws assumed there would be unwritten norms or conventions that would simply constrain presidential power and that the White House would voluntarily comply with the law.
Nearly a half-century later, these post-Watergate limits have faded with memory. The events of 9/11, the financial crisis of 2008, and partisan polarization have all eviscerated the institutional balance of checks and balances of the Constitution. President’s unable to get their way with Congress, govern by executive order, relying in large part on authority granted to them by Congress. No longer is easy to contend, as Madison argued, that the legislature predominates, we may have the new imperial presidency.
What is scary is how the impeachment process and Democratic presidential candidates simultaneously attack Trump’s abuse of power but at the same time pledge that if elected would issue a host of executive orders within their first hundred days in office. For example, Elizabeth Warren has proposed executive orders that cover 21 policy areas. Amy Klobuchar pledged a list of 100 executive orders she would issue. What would be better to see is a promise among Democratic presidential candidates that if elected that would work to limit presidential power.
What might some of those new limits be?
Reauthorize the special prosecutor law to investigate the executive branch.
Amend the National Emergencies Act to define what constitutes a national emergency and make it clear here and in a new budget act that no national emergency authorizes a president to divert money unless explicitly authorized by Congress.
Adopt a new War Powers Act that limits presidential authority to initiate first use of nuclear weapons and which requires presidential authority to deploy troops short of congressional declarations of war.
Amend the Ethics in Government Act to require presidential disclosure of financial interests and taxes, and impose tighter requirements on conflicts of interests, including mandatory blind trusts and absolute bans on personal use of private investments or holdings that conflict with government duties.
Adoption of a law facilitating and simplifying Congress’s ability to prosecute executive branch officials for failure to comply with document production or appearing to testify.
As president, direct the Office of Legal Counsel and Justice Department, to reconsider past opinions claiming sitting presidents cannot be indicted for a crime, and urge the Supreme Court to modify its Chevron decision so that disputes in legislative interpretation give priority to congressional intent and meaning.
Overnight it will not be possible to reassert the balance between Congress and the president. The impeachment trial in the Senate, as well as the 2020 elections, are a good opportunity to do this. Yet to do this one needs to realize that the problem is not simply Donald Trump but a larger gravitation of authority from Congress and to the president that needs to stop.