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By abdicating their authority, Congress has enabled the imperial presidency.
Since returning to the White House, Donald Trump has been on a tear, issuing executive orders and directives to federal agencies to fulfill campaign promises. As of January 29, Trump signed 38 executive orders in less than two weeks, more than any president in modern history. He’s on pace to surpass President Harry Truman, who signed over 50 executive orders in his first 100 days.
Few would dispute that the Executive Branch wields considerable power. However, much of this power arises from Congress delegating its lawmaking responsibilities.
At least some of those executive orders are testing the bounds of the Constitution and statutory law, if not outright unlawful. For example, a second federal judge ruled that the executive order redefining birthright citizenship violates the Citizenship Clause of the Fourteenth Amendment and conflicts with the intent of Congress and Supreme Court precedent.
Of course, there are other actions taken by the administration, such as the Office of Management’s memo to freeze federal spending (excluding Social Security and Medicaid, which may be unlawful). Although that memo has been rescinded, the White House has indicated that it intends to continue implementing it, and federal courts are actively considering temporarily blocking the White House’s plans while litigation continues.
No one can say that Trump isn’t doing exactly what he promised. However, this raises questions about constitutional authority and the powers of the Executive Branch. It’s clear that if the early days of Trump’s second and last term in the White House are any indication, we can expect frequent clashes with Congress and the federal courts.
The Constitution Provides a System of Check-and-Balances
A feature of the constitutional system established by the Framers is that the three branches of the federal government have distinct powers and functions, each designed to act as a check on the power of the other branches.
The Legislative Branch: The powers of the Legislative Branch are outlined in Article I of the Constitution, which vests all lawmaking powers in the Congress. Article I, Section 8 defines the specific powers that Congress has. Those powers include laying and collecting taxes, borrowing money, regulating commerce with foreign nations, and establishing post offices and post roads. Additionally, Article I, Section 9 also notes that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Each year, Congress performs this function by passing appropriations bills.
The Executive Branch: The responsibilities and powers of the Presidency are defined in Article II of the Constitution. The person who serves in this office is the commander-in-chief of the Armed Forces of the United States, although the power to declare war is in the purview of Congress. He or she also has the power to make treaties and fill posts delegated by Congress, with the “advice and consent of the Senate.” The President signs and vetoes bills presented to him or her by Congress. The President is also responsible for " taking care that the Laws be faithfully executed.” One specific aspect of Article II is that it states, “The executive Power shall be vested in a President of the United States of America.” We’ll circle back around on that in a moment.
The Judicial Branch: The power of the Judicial Branch is defined in Article III. The Judiciary was the least defined branch. Writing in Federalist No. 78, Alexander Hamilton explained that the Judiciary “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” Thomas Jefferson disagreed with that view, noting in various correspondence his concerns about judicial overreach and the lack of accountability that judges could face. According to Article III, federal courts are expected to address cases and controversies that arise under the Constitution. However, the concept of judicial review–through which the Supreme Court may strike down laws that conflict with the Constitution–was established extra-constitutionally in Marbury v. Madison (1803). More than 200 years after Marbury, few seriously question the Court’s power of judicial review today.
Each branch has its own way of checking the power of others. Here are some examples of those checks:
- Congress can override a presidential veto with a two-thirds vote of each chamber.
- The House has the power to impeach any federal official, including the President, for high crimes and misdemeanors, while the Senate has the power to try impeached public officials.
- The President can veto legislation and issue directives to federal agencies through executive orders.
- Federal courts hear cases related to controversies over federal laws and executive orders, with the Supreme Court having the final say over whether a law or executive order violates the Constitution.
- The Senate confirms judges and many federal officials nominated to posts or doesn’t confirm them if the nominees aren’t qualified or not fit for the office to which they’ve been appointed.
- Congress set the jurisdiction of federal courts, deciding whether or not courts can hear cases in specific areas.
No branch of the federal government was supposed to be “greater” than the other. The Founding Fathers and Framers of the Constitution were concerned about too much power being concentrated in any one branch, especially the Executive Branch. The Founding Fathers were children of the Enlightenment Age, which is, in part, defined by its emphasis on republicanism, separation of powers in government, secularism, rationalism, and skepticism of monarchial authority. Naturally, each of these elements of the Enlightenment show themselves in our founding documents–the Declaration of Independence, the Constitution, and the Bill of Rights.
But the Republic left for us only works if the people in it consent to be governed and the representatives they choose are willing to safeguard it.
Congress Has Given Far Too Much of Its Power to the Executive Branch
Article I, Section 1 of the Constitution states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Although the Constitution is silent about delegation, the plain text suggests that Congress may not delegate its power to another branch of government. This is commonly known as the “nondelegation doctrine.”
Unfortunately, over time, Congress has delegated its power on various matters to the Executive Branch. There are cases where it’s a matter of convenience. The argument is that Congress acts too slowly, mainly when there’s a need to build consensus around legislation, which takes time. However, federal agencies in the Executive Branch can act more swiftly and decisively.
Another often lesser argument is that Congress frequently wants to avoid bigger, more controversial questions around a piece of legislation and delegates its authority to federal agencies as a matter of political expediency. In other words, if Congress gets too specific regarding the details, it could put members of the House or the Senate in political jeopardy.
Congress delegated its legislative authority to federal agencies in the Administrative Procedures Act of 1946 (Chapter 5, Part I, Chapter 5 of U.S. Code), which is the primary framework for the modern administrative state. Because federal agencies are within the Executive Branch, the President has tremendous influence over the rules and regulations promulgated and ultimately published by federal agencies.
In Mistretta v. United States (1989), the Supreme Court determined that Congress can delegate its authority under general directives in legislation. Writing for the majority, Justice Harry Blackmun wrote, “Applying this ‘intelligible principle’ test to congressional delegations, our jurisprudence has been driven by a practical understanding that, in our increasingly complex society, replete with ever-changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”
Still, there are constitutional questions beyond the administrative state. Other issues where the constitutional lines between Congress and the Executive Branch have been blurred include war powers, emergency powers, trade, and immigration.
We’ll use tariffs as an example. We’ve already noted here at the Independent Center that the President can unilaterally impose tariffs through Section 232 of the Trade Expansion Act and Section 301 of the Trade Act. The current administration also claims the power to unilaterally impose tariffs through the International Emergency Economic Powers Act (IEEPA). The tariffs proposed against Canada and Mexico are being imposed through IEEPA. Although IEEPA has been used to impose sanctions against hostile nations and individuals involved in human rights abuses, imposing tariffs through IEEPA is unprecedented.
The Imperial Presidency Is a Threat to America’s Standing in the World, Our Economy, and Our Civil Liberties
Although the scope of executive power hasn’t been clearly defined, there are few areas where the President has absolute, unchecked power. One is the power to provide clemency or pardons for federal offenses. Other powers are constrained either by the Constitution or Congress. Federal courts can also limit executive power.
Few dispute that the President oversees the Executive Branch and has the power to implement his or her agenda, but the scope of that power is not without limitations. For instance, the President cannot reallocate funds appropriated by law for one purpose to another purpose. Nonetheless, the courts must clearly define the extent of this power. Advocates of a strong executive promote a doctrine known as the “Unitary Executive Theory.”
The Unitary Executive Theory represents a scope of unchecked power that ranges from total control of the Executive Branch to broad war powers. The scope of presidential power has, of course, been a subject of debate since the Constitution was established. Alexander Hamilton was the first and most prominent advocate for the presidency. Although Hamilton recognized the President as having significant authority, he did not believe that power was unchecked, nor did he view the President as unaccountable to the other branches of the federal government.
Obviously, President Richard Nixon pushed executive power to its constitutional limits. Fortunately, he was checked by Congress and the Supreme Court. However, the Unitary Executive Theory gained new prominence during George W. Bush's presidency, especially during the War on Terrorism. This irony is evident in the early Trump administration. Despite the rhetoric against neoconservatives that Trump and far-right populists use, the Trump administration's strategy is rooted in the Unitary Executive Theory.
Regardless of an administration's agenda, the Unitary Executive Theory threatens Americans on various fronts. During the Bush administration, for instance, detained American citizens–José Padilla and Yaser Esam Hamdi—were labeled as “enemy combatants” in the War on Terrorism. Padilla was eventually convicted and is currently serving his sentence at ADX Florence in Colorado, while Hamdi was released in Afghanistan on the condition that he renounce his American citizenship. Although it may be difficult to sympathize with these individuals, given the nature of their offenses, they were still entitled to the due process protections guaranteed by the Constitution.
The Bush administration also established a surveillance apparatus to monitor the phone and internet activities of individuals, including American citizens. This surveillance was conducted without a warrant and eventually overseen by the Foreign Intelligence Surveillance Court (FISC). It raised so many constitutional concerns that in 2004, James Comey, acting Attorney General at the time, nearly resigned.
President Barack Obama reportedly maintained a “kill list” of individuals worldwide who might pose a threat to the United States. The issue with this list is that it included (and may still include) American citizens. One person targeted during the Obama administration was Anwar al-Awlaki. Few dispute that al-Awlaki was involved in al-Qaeda, but he was born in the United States and had due process rights under the Constitution at the time he was killed in a drone strike. He was never tried or convicted. More perplexing is the targeting of his 16-year-old son, Abdulrahman, an American citizen who, at least publicly, wasn’t known to be involved in any terrorist activity. In this instance, the son seemed to pay for the sins of the father.
The Second Trump administration
With the zeal of a convert, President Trump expanded the Unitary Executive Theory left by his predecessors and pushed it to new limits in his second term. The executive orders from the last three weeks have aimed to reshape the federal government to operate like the Trump Organization, which lacks effectiveness and is driven solely by the whims of one Donald J. Trump.
Presidents have reorganized the government in past years. Roosevelt signed the first Reorganization Act in 1939, Truman signed the Reorganization Act of 1949, and Carter signed the Reorganization Act of 1977. George W. Bush created the Department of Homeland Security after 9/11, which also reorganized parts of the executive branch. The primary difference here is that these are acts of Congress signed by a President, not executive orders attempting to bypass Congress.
Trump's executive actions regarding the impounding of congressionally appropriated funds disregard traditional, statutory, and constitutional limits. Even Senator Thom Tillis (R-NC) has acknowledged, “That runs afoul of the Constitution in the strictest sense,” he said. However, “it’s not uncommon for presidents to flex a little bit on where they can spend and where they can stop spending.” The United States Agency for International Development (USAID) is a statutorily created agency with funds authorized and appropriated by Congress. For Tillis and other Republicans to lack even a passing concern about the erosion of the balance of power suggests that the Unitary Executive Theory has gained traction in Congress, and that they are willing further to relinquish their constitutional authority to the Executive Branch.
USAID has a history dating back to the Kennedy administration's building of American soft power worldwide. Soft power refers to the intangible goodwill and reputation the U.S. holds as an ally, in contrast to the hard power of military strength. George W. Bush, with Congress's support, launched the U.S. President's Emergency Plan for AIDS Relief (PEPFAR). This initiative has significantly impacted by saving over 26 million lives in more than 50 countries.
As one Congressionally created organization, USAID, faces dismemberment like a pig at the slaughter, this leads to the question, “what is next?” The Unitary Executive Theory and Congress abdicating its constitutional responsibilities set an incredibly dangerous precedent for other congressionally established departments. Trump has voiced his disdain for those involved in prosecuting him and for those working on the January 6th prosecutions as a whole.
The Department of Justice has already undergone some restructuring, but what unifying action might President Trump take next? A dissolution of the Department of Justice Civil Rights Division? Or perhaps altering the function of the Foreign Intelligence Surveillance Act to permit greater collection of sensitive data on American citizens or even encouraging the FBI to query the Section 702 database without just cause or adequate oversight? Only time will tell, but we are wading into perilous waters.
