COMMENTARY: Presidential power and the Constitution – Back to future?

The challenges which the Donald Trump administration presents to the rule of law as it pertains to presidential power are not new; they are the cumulative product of American history, congressional acquiescence, emergencies, and executive aggrandizement. However, there are hazards facing our political system when the pendulum swings too far toward the president relative to the other branches.

The early history of America was clearly dominated by the executive branch: most colonies had governors selected either directly or indirectly by the British monarch. Those governors served life terms, enjoyed absolute veto power, and controlled the British military as commander-in-chief.

Following the American Revolution, states established governments with the legislative branch in charge and with feckless governors, an understandable if unfortunate overreaction to executive abuses during the colonial period. Meanwhile, the Articles of Confederation at the national level only had one branch, a one-chamber legislature.

Dr. Samuel B. Hoff

It would be up to delegates at the 1787 Constitutional Convention to both add branches which weren’t present in the previous government and simultaneously balance the authority between them.

The final composition of Article II of the Constitution was a result of the tug-of-war between plans for the new government at the latter event. The Virginia and Pinckney plans proposed a single president chosen by Congress who would have a single term and few powers.

The New Jersey plan argued for yet a weaker executive by leaving the number of individuals open. Conversely, the plan advanced by Alexander Hamilton was almost the complete opposite: a single president selected by electors who would serve for life and have an absolute veto. While the presidency was viewed as secondary to Congress by most, the executive branch emanating from the Constitution was much closer to Hamilton’s ideas than the other coordinated plans.

Up to the Civil War, the president’s use of powers was rarely challenged by Congress because it wasn’t seen as a threat. Subsequently, congressional delegation of authority to the executive served to expand such authority, particularly in the 20th century.

The 1921 Budget Act brought the president directly into the federal budget process for the first time. In 1939, Congress authorized the establishment of the Executive Office of the President, the highest tier within the executive branch.

The 1947 National Security Act broadly expanded executive influence in foreign policy and intelligence areas.

National emergencies have unquestionably augmented presidential power. Whether wars, national disasters, or serious economic crises, these occasions call for executive leadership.

When the urgency for action passed, the extraordinary measures employed to fix the dilemma often remained on the books and became part of the president’s arsenal for the future.

While not usually feared in time of peril, these extra-constitutional moves have been frequently criticized in peacetime. Efforts to rein in such authority have largely failed, though laws such as the 1973 War Powers Act at least led ensuing presidents to look over their shoulder before deploying the military.

When U.S. presidents have taken actions not clearly authorized by the Constitution, they have often met resistance. Such is the case with removal and treaty powers to the president. Because the document is silent on the president’s power to fire underlings within the executive branch, controversies often developed. The president largely had a free hand to fire in the late 19th century, but was limited by a series of court rulings in the 20th century. Still, that hasn’t stopped executives from attempting to expand the parameters of removal authority.

Similarly, although the Constitution imbues the president with authority to propose treaties, it says nothing about the opposite: terminating them. When the Jimmy Carter administration sought to cancel a treaty with Taiwan in order to normalize relations with China, it was sued by members of Congress. The Carter administration prevailed in the court case that followed.

Finally, the prevalence of unilateral tools of the president — executive orders, executive privilege, signing statements, findings, and rescission authority — have increased in use and have taken on the force of law despite recurrent congressional objections.

We now find ourselves at a juncture of American history not unlike the colonial period, with an executive whose personal view of power combined with the aforementioned circumstances endangers limits and checks imposed by the Constitution’s framers.

Ironically, the elimination of unlimited terms by the 22nd Amendment has had the opposite effect than intended, serving to heighten executive-legislative acrimony and partisanship.

Getting rid of Donald Trump won’t cure these ills, though repealing the latter amendment could alleviate some. Electing more members of Congress who are intent on guarding the institutional authority of the legislative branch regardless of which party is in charge will likewise help.

Appointing Supreme Court justices who are not blindly in the president’s corner is a must. In the end, it is up to the American people and those entities which can apply pressure to the executive branch to restore the spirit of the Constitution consonant with the intention of those who wrote it.

Dr. Samuel B. Hoff is George Washington Distinguished Professor of History and Political Science and Law Studies Program Director at Delaware State University. He teaches and publishes extensively in the area of constitutional law. Dr. Hoff thanks students in his American Presidency course for contributing ideas for this article.

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