Too Much Presidential Power? - Too Little Congress

A tyrannical George III still fresh on their minds, the Constitution's framers fashioned Congress as the dominant branch of government. To make sure he knew his place, it rejected kingly titles, so George Washington became just the "president." He initially respected this, believing for example that he should only veto a bill if he deemed it unconstitutional, not just because he didn't like it.

That didn't last. With the help of Alexander Hamilton and an increasingly liberal interpretation of the Constitution, Washington soon dominated foreign affairs, defense, and created a national financial system. The course of American history has led most presidents to want more power than the framers intended. Republican anger at President Obama and Democratic anger at President Trump for executive over-reach should be seen in this historical context. But how much presidential power is too much?

Those worried about an "imperial" presidency point to the use of Executive Orders. Until the mid-nineteenth century, presidents averaged just two a year. President Obama was criticized for over-use, at a rate of 34.6 per year. President Trump, critical of Obama for this, has a current rate of 68.7 per year, reversing many of Obama's with his own. As a matter of history, neither comes close to FDR (307.8) and Herbert Hoover (242).

Presidential "signing statements" are another concern. The first 39 presidents issued only 75. The next three (Reagan, Bush, Clinton) issued 247. By the start of his last year, George W. Bush had issued 157, challenging over 1,100 provisions of law, leading to accusations that he was selectively enforcing the will of Congress.

Federal regulation is another marker of executive power, as regulations assume the force of law. Between 1949 and 2005, the Federal Register grew seven-fold to over 134,000 pages. The executive branch has taken upon itself a large measure of legislative authority.

The near-constant state of heightened national security since 9/11 can also strengthen a president's hand. James Madison made that point in 1793, saying that war is "the true nurse of executive aggrandizement."

If modern presidents have more power than we are comfortable with, the courts are one antidote, as we have seen with President's Trump's attempted travel bans. But the courts are slow and sometimes inconclusive. A Congress jealous of its constitutional prerogatives is the other corrective. Presidential power becomes easier (and, presidents argue, more necessary) when Congress falters.

In recent decades, this has been cause for concern. For example, Congress has let Presidents take the lead on immigration, health care, and the environment. It has ceded much trade authority and has weakened its treaty powers by enabling presidents to create "executive agreements" and other vehicles that require less than a two-thirds vote - and in some cases no vote at all. In 1973, it passed the War Powers Act to limit a president's ability to go to war - but has failed to enforce it when ignored. The current Congress has allowed itself to be ridiculed via demeaning tweets. Perhaps not surprisingly, a 2015 Gallup Poll found only eight percent of Americans with "quite a lot" or "a great deal" of confidence in Congress, the lowest of 15 major U.S. institutions and a drop of 16 points from its historical average.

A diminished Congress weakens our republican government. For example, the rejection by the current president of the executive actions of his predecessor, who also overturned many of the actions of his predecessor, leads to incoherent domestic policy. An exceptionally deferential Congress leaves foreign policy - and potentially war - to the whims of one person, clearly not at all what the framers wanted in 1787.

Congress must fix itself. Increasing polarization and refusal to compromise; gerrymandering that encourages extremism by assuring the winner of a party primary wins an election; big money that comes with big payback expectations; failure to forge social ties to mitigate partisan tensions; public derision of those with opposing views; the use of "no" as a policy strategy; and a willingness to defer to the executive are some of its failures. With very few notable exceptions, such as Senator John McCain, individual members have also lacked the moral courage to confront the president of their own party and call both to a higher purpose.

The framers did understand human nature would lead each branch of government to seek power at the expense of the others. Their solution, explained by Madison in Federalist #51, was that "[A]mbition must be made to counteract ambition." It "consists in giving those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others." Congress does the nation a disservice when it fails to faithfully execute its constitutional role. Presidents go too far when Congress does not go far enough. Fixing the latter is the best way to constrain the former.