Let’s Build a New Consensus to Restrain Executive Power

It happened.

Don’t worry, our country is strong enough to deal with what might be coming. Unfortunately, however, our Constitution has some holes in it, many of which were created by the last two administrations, that allow presidents to assert shockingly broad powers. We will gladly welcome back to the fold our left-wing friends who have spent eight years cheering for executive power. They resisted executive power during the Bush administration, and it should be like riding a bike. We hope we will be joined by principled people on the right who understand the need for constitutional limits. Maybe, in the process, we can create a new consensus around limiting executive power.

Constitutionally limited government exists to protect the freedom of the citizens from the vicissitudes of democratic rule. The Framers of the Constitution knew that a person of George Washington’s caliber would not always be chosen president. They knew about demagoguery and populism. James Madison, in particular, was terrified of how voters in states could be swept up in waves of populist fury and, in the process, enact policies damaging to the long-term prosperity and freedom of the people.

Unfortunately, after a century or more of erosion, our Constitution doesn’t limit our government the way it once did. In particular, the president is incredibly powerful, and able to make significant decisions without proper checks and balances. Democrats wanted this power when President Obama was in office, but the powers of the executive, especially after President Obama, are now truly concerning when held by someone as unpredictable as Donald J. Trump.

Here’s a basic principle of good government: Don’t endorse a government power that you wouldn’t want wielded by your worst political enemy. Democrats will soon be learning that painful lesson.

Obama’s most concerning legacy was to use congressional inaction as a justification for sweeping executive orders. In the DACA and DAPA immigration cases, the president decided that, if Congress didn’t do something about immigration, then he would. This is a shocking argument for asserting unilateral power in a constitutional system that depends on checks and balances, and it should not matter whether you agree with the policy outcome. Nevertheless, Democrats, by and large, endorsed Obama’s action.

Obama also used congressional inaction as a justification for claiming the power to decide whether the Senate was in session. After his nominees to the NLRB and CFPB were blocked by the Senate, President Obama used his recess appointment power—which gives the president the ability to appoint executive officers during Senate recesses—to push his nominees through. In so doing, he essentially declared that the Senate’s pro forma sessions, which were sham sessions first used by Harry Reid to block President George W. Bush’s nominees, were not “real” sessions of the Senate. It was a bold, reckless, unprecedented, and dangerous move that was struck down unanimously by the Supreme Court. On many types of executive overreaches, however, the Court will not be able to similarly intervene. If Obama had the temerity to push through those appointments, imagine how far Trump might go on other matters.  

Finally, the Congress hasn’t declared a war since World War II. Korea, Vietnam, First Iraq, Second Iraq, and Afghanistan were all fought without obtaining the constitutionally required declaration of war from Congress. We currently have the Authorization of the Use of Military Force, signed a week after the September 11th attacks and subsequently used by two presidents to fight “terrorists” wherever they wanted. President Trump will have that power too, which should concern anyone.

Like nearly every president, President Obama defined a new baseline of executive power. Now that power will be handed over to Donald Trump, and left-wing groups like our friends at the Constitutional Accountability Center will probably be on our side when Cato inevitably files briefs opposing Trump’s forthcoming executive overreaches. I’ll try to restrain myself from saying, “I told you so.”