OP-ED Stroke of a Pen, Law of the Land, NOT Cool
The U.S. president’s power has been consistently growing since our country was founded. The executive branch, which presidents have almost complete control over, has significantly expanded to accommodate for the industrialization and development of a world superpower. The president’s role of commander in chief has expanded with every military action issued. Today, military commands and operations can and do happen without meaningful congressional oversight.
Facing a partisan and deeply divided Congress, presidents have recently picked up a new power: lawmaking. Executive orders have become an easy substitute to finding a compromise in Congress. In Clinton aide Paul Begala’s words, “Stroke of a pen. Law of the Land. Kind of cool.” But is this really cool? Is it in America’s best interest to have a Unitary Executive, essentially a king, run the country?
National Guard arriving in Washington DC ahead of Joe Biden’s presidential inauguration. (Kent Nishimura | Getty Images)
When we let one person act as both legislator and executive, we stray dangerously close to a dictatorship. As Trump’s failed insurrection demonstrated, the United States is not immune to coups. We have to constantly work at all levels of our government and society to prevent a slide into authoritarianism. I believe that a republic is truly in the people’s best interest, not an authoritarian regime. To correct this trend, Congress needs to reassert its checks over the executive office through passing bipartisan legislation to affirm what is in the constitution or make amendments to the constitution itself.
Historically, Congress has successfully reprimanded the executive branch and reasserted its authority as an equal branch of government. They need to do so again. In 1973, Congress passed the War Powers Resolution that drastically limited the president's war-making power. The bill limits presidents allowing only sixty to ninety days of military action without a congressional declaration of war. Congress had to override President Nixon’s veto and in a show of bipartisan agreement passed the bill with the required supermajority. This check on presidential war-making powers prevents extended wars from being started by one person. Similarly, the Tenure of Office Act of 1867 was a significant check on the president’s power. The act limits who the president can fire from agencies controlled by the executive branch. In addition to bringing stability to these agencies, this ensures that bureaucrats can advance U.S. interests in a nonpartisan way. This also severely limits the president’s ability to drastically change government agencies and allows the bureaucracy to keep working in the people’s best interest.
As significant as those checks are, the modern president's true power comes from the least explicit parts of the constitution, or in its silences. In the Vesting Clause of Article II of the constitution, “The Executive power” is given to one person, The President of the United States of America. That power is never defined or expanded upon. In fact, it is left to interpretation. In practice, this has given free rein to the president so long as they do not act in direct conflict with a law passed by Congress or against the ruling of the courts, and sometimes even then the president has gotten their way.
Donald Trump repeatedly cited Article II as the reason for his ultimate power to do almost anything without any possibility of accountability. He most famously used it to try to end the Mueller investigation and fire Mueller himself. His unique speech pattern made these claims somewhat incoherent, but he and his administration used Article II as reasoning for expanding the executive power.
However, presidents have consistently used the ambiguity of the executive power to combat crises while simultaneously centralizing more power in the hands of the president. For example, when Lincoln raised troops at the start of the civil war it was a necessary action to defend the nation, but this power had belonged to Congress before he acted. Another example is found in some of FDR’s New Deal policies, which greatly enhanced the president’s role in regulating the economy. A necessary step in preventing a worsening crisis, but one that still enriched the president’s capabilities. As successive presidents inherit a more powerful office they continue to expand their capabilities, without ever relinquishing the powers gained by themselves or their predecessors.
Congress needs to have more of a hand in the “silences” of the constitution. When Vietnam demonstrated the destruction that unchecked presidential authority brings, Congress responded with the War Powers Act. Today, they need to respond again to the newfound lawmaking powers of the president. We need to stop the consolidation of power in one person’s hands, lest we slowly slip into authoritarianism.
