COMMENTARY: Recognizing the constitutional imperative

Constitution Park on South Street in Dover. Today is Constitution Day. (Submitted photo/Weston Williams)

The U.S. Constitution’s flexibility and adaptability is demonstrated by its record and resilience. However, extra or non-constitutional policies and procedures threaten the respect afforded to the venerable document and the rule of law it represents.

For instance, some current laws masquerade as legitimate authority for presidential action, while others from decades past are used to justify present actions, while still others are almost completely ignored by American chief executives. An example of the latter is the War Powers Act, passed into law in late 1973 over President Richard Nixon’s objections. When both Congress’ sole power to declare war and that substitute are ignored, you get the kind of mission creep which Sen. Rand Paul (R-KY) just called out dealing with Afghanistan policy.

Other tools and techniques have no base in the Constitution. In reference to Congress, the legislative veto was initiated in 1933 and used to block presidential actions for a half-century before being declared unconstitutional by the U.S. Supreme Court in 1983. Yet, Congress still finds ways to stifle presidential actions in ways not intended nor sanctioned by the Constitution. Alternatively, presidents since Ulysses Grant called for line-item veto authority rather than having to say yes or no to an entire bill. But when Congress passed a line-item veto bill — trying to do what is necessary by amendment — the Supreme Court negated the legislation.

Unfortunately, political divisions and extreme partisanship have exacerbated tension between branches of government, leading contemporary American presidents to create ways to act outside of normal constitutional bounds.

For example, recent presents have tapped memorandum and national security directives to establish policies which should be authorized by Congress as well. Further, presidents have used signing statements to furnish the White House interpretation to a new law, often adding caveats or exceptions to the content of the law.

Dr. Samuel B. Hoff

Certain presidential tools have both benefits and drawbacks. Chief executives like Abraham Lincoln employed proclamations to announce policies in advance of laws, but presidents have recently been just as quick to issue proclamations in place of laws.

Executive orders — traditionally directives to departments and agencies regarding implementation of an already-passed law — have instead been utilized by presidents to create or change policies. Presidents Harry Truman and John Kennedy used executive orders to further civil rights in advance of laws doing the same.

Other orders have existed for too long without being codified into law. One such case is the Mexico City Directive, a policy enacted unilaterally by the Ronald Reagan administration to ban foreign aid to clinics counseling about or performing abortions. That executive order was reversed often by ensuing chief executives: Bill Clinton changed Reagan’s order; George W. Bush revised Clinton’s order; Barack Obama reversed Bush’s order; and Donald Trump changed Barack Obama’s order back to the original intention of the action.

Of course, President Trump has also acted to alter the direction of other Obama administration policies. Most of those were taken independent of Congress in the first place and in reaction, including Cuba policy, transgenders in the military, the Pacific Rim trade deal, and the Paris Climate Change Accord among others.

Commenting about the deal which funds the government and extends the debt limit, President Trump stated that “some of the most successful laws have enjoyed bipartisan support.” He is right in that laws passed consistent with the procedures delineated in the Constitution are generally more popular and accepted than not. Certainly, laws which pass muster with the Constitution have a longer shelf life than extra-constitutional tools.

Supporters of those informal, independent techniques for running government must realize that the Constitution provides a clear, if challenging, process for change in the amendment process, which guarantees sustained majority backing not found in the aforementioned.

Too, we must acknowledge that instances of unclear language in the Constitution or the claim of certain inherent powers possessed by the chief executive or Congress have been accepted by courts and citizens alike. Given the wide discretion which already exists in legitimate authority, it is time to stop perpetually looking for a path around the Constitution.

The rule of law cannot and should not be parsed to suit the preferences of individuals or branches of American government.

Dr. Samuel B. Hoff is George Washington Distinguished Professor of History and Political Science and Law Studies Director at Delaware State University. He serves as DSU’s coordinator of Constitution and Citizenship Day activities. Dr. Hoff teaches and publishes often on constitutional law issues.

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