The growing imperial presidency and how Congress can stop it

It was St. George Tucker who issued the first warning about the threat of a powerful executive.

“The limitations which the constitution has provided to the powers of the president, seem not to be sufficient to restrain this department within its proper bounds, or to preserve it from acquiring and exerting more than a due share of influence,” the noted jurist wrote in 1803 in his View of the Constitution of the United States. “To this cause it may be attributed, that in addition to the very extensive powers, influence, and patronage which the constitution gives to the president of the United States, congress have, from time to time, with a liberal hand, conferred others still more extensive; many of them altogether discretionary, and not infrequently, questionable as to their constitutionality.”

George’s concern was that the president could become almost monarch-like in his or her policy decisions. Or to use a phrase by former president Barack Obama in 2014, “I’ve got a pen and I’ve got a phone…and I can use that pen to sign executive orders and take executive actions and administrative actions.”

It took over a century for George’s warning to come true, however, the extent to which the executive has usurped power from Congress cannot be ignored. History shows Theodore Roosevelt was the first president to assert executive authority through trust-busting, while the Environmental Protection Agency was created via executive order. However, Thomas Jefferson shares a pivotal role in the establishment of supreme executive power with the Louisiana Purchase. Congress originally approved the buy for $X amount, while Jefferson told James Monroe to tell the French the sum was $Y amount. Monroe ended up telling Napoleon the price was $Z, and the deal was struck. The purchase may have been worth it, but it set the standard for other presidents.

FreedomWorks recently documented the growing imperial presidency in their paper entitled Restoring the Balance of Powers pushing the legislative branch to exert its constitutional duty in policy decisions. It’s a relatively depressing document because it sheds light on the failure of the federal government to follow its own rules.

“Many in Congress realize the problem, but too few are willing to take steps to address it systematically,” authors Jason Pye and Joshua Withrow write while pointing out both major parties are to blame for not following the Constitution. “But overall, members of Congress often find it politically safer to not have to address and vote on tough issues, and outside interest groups often find it easier to lobby (privately) a few key people in the Executive Branch than 535 unruly elected officials in Congress. This result favors those with connections and resources at the expense of the rest of us.”

This is a completely unsurprising development despite its disturbingness. It is easier to let unelected bureaucrats come up with regulations because it allows incumbents to skirt tough questions about their votes during campaigns. Congress is essentially turning itself into elected advisers of the president where the essential question in elections becomes, “Do you support the president or not?”

Not exactly what the Constitution means when it says, “To make rules for the Government.”

A part of this problem is how laws are written. Pye and Withrow note Congress tends to provide the framework but lets federal agencies fill in the blanks like some kind of government version of Mad Libs. It also lets Congress complain about the regulations without admitting they were the ones who enabled the bureaucrats to begin with.

It would also be unwise to discuss the growing presidential power usurpation without mentioning foreign policy. Both Republican and Democrat administrations have put U.S. military members into harm’s way without congressional authorization (War Powers Act be damned!). Libya, Syria, and Yemen are all conflicts the United States entered without authorization from Congress. It’s time for Congress to repeal the AUMFs involving Iraq and Afghanistan and either replace them with something new or, more preferably, end the wars and bring the troops home.

These are just some of the problems Congress needs to address to rein in the executive, and it may not be feasible in my lifetime. The rise of populism in American politics where it’s likely we’ll see a populist Republican (Donald Trump) vs. a populist Democrat (Bernie Sanders) in the November election is frightening. It only enables the president to take more steps towards implementing the “pen and phone” policy instead of the usual method of following the rules established at the formation of the Republic.

It is possible we’re too far down the proverbial road of no return. However, it does not mean those who believe in smaller, weaker government should give up and either go home or, worse, join those pushing for an even more powerful executive.