And, of course, we all remember President Obama’s assertion that he could bypass Congress as long as he had “a pen and a phone.” Obama used that pen and phone not only to implement DACA but to rewrite parts of the Affordable Care Act, to circumvent the constitutional requirement that Congress approve treaties, and to target US citizens with drone strikes. In fact, DACA may turn out to be the most defensible of Obama’s presidential power grabs.
Some 20 years ago, Paul Begala, then an adviser to President Bill Clinton, expressed his marvel at the ability of the president to act unilaterally. “Stroke of the pen. Law of the land. Kinda cool.”
In between, President George W. Bush declared unilateral presidential authority to “nullify statutes and court judgments” by refusing to enforce them, acting on the basis of his independent legal judgment. Perhaps most notoriously, when Congress passed an amendment to an emergency defense‐appropriations bill prohibiting torture during the interrogation of suspected terrorists, President Bush issued a signed statement asserting that he was not bound by it. And while the War on Terror was the biggest impetus for Bush’s accretion of presidential power, he also asserted the unilateral power to act on issues ranging from Medicare to whistleblower protections to affirmative action.
Now, we have President Trump claiming the authority to reallocate funds that Congress had (a) specifically appropriated for other purposes, and (b) specifically refused to appropriate for the uses the president wants.
The legal arguments around Trump’s declaration are unclear. The president’s actions certainly appear to contravene Article I, Section 9 of the Constitution, which says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law …” On the other hand, the National Emergencies Act does give the president a great deal of unilateral discretion. Other presidents have used it at least 59 times to trample on congressional power (though most often for imposing sanctions on foreign companies or individuals, or wartime military projects).
Trump’s use of the statute might be more egregious than most, but it’s neither completely unprecedented nor without foundation. Congress may actually have voluntarily surrendered its authority. And therein lies the bigger problem. For decades, Congress has been abdicating its role in our constitutional structure, ceding more and more power to a monarchical presidency. The Founding Fathers, justifiably wary of a king, intended the legislative branch to be preeminent. As Article I says, “All legislative powers herein granted shall be vested in a Congress of the United States.”
The job of the presidency is to see that the laws that Congress has passed “are faithfully executed.” And as Chief Justice Jackson wrote in the 1952 case of Youngstown Sheet & Tube Company v. Sawyer, “In the framework of our Constitution, the President’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker … The Constitution is neither silent nor equivocal about who shall make laws which the president is to execute.”
But increasingly, that’s been flipped on its head, with the complicity of presidents of both parties and of Congress itself.
It’s easy to understand why presidents would want to try to seize more power. But it’s less clear why Congress would so cravenly surrender its prerogatives — if not cowardice. After all, if Congress has no responsibility for anything, congressmen can’t be held responsible for anything that voters might not like.
Congress might grumble when a president unilaterally imposes tariffs, for example. But grumble is all that it will do. When Congress does actually pass legislation, it still leaves the real authority to the president and executive agencies. All too often, Congress simply expresses its desire for vague (and popular) goals like “clean air,” then leaves the actual hard choices to others.
Even on matters as basic as war and peace, Congress is AWOL. Article I, Section 8, Clause 11 of the Constitution gives Congress the exclusive power to declare war. Yet, US troops are currently fighting in more than a dozen countries without no such declaration from Congress. This Congress refuses to even debate updating an Authorization for the Use of Force that was intended for Afghanistan 18 years ago and is now used to justify interventions from Somalia to the Philippines.
We’ve reached the point where presidents can go to war, appropriate funds, impose revenue measures, and far more, all without Congressional approval. As James Madison warned in Federalist No. 48, “An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by others.”
Congress could restore those checks and restraints by reclaiming its authority. That should start by disapproving Trump’s power grab. It’s telling, though, that no one really believes that they will do this.
That’s not so cool after all.