The Framers of the U.S. Constitution gave the president limited powers, but they likely would have limited those powers even more had they not so thoroughly trusted George Washington.
When I took a trip around the world in 1988 — a moment just before dramatic changes in many parts of the world — one of my stops was Hong Kong, where everyone knew that authority over the city would be transferred from the United Kingdom to the People’s Republic of China in 1997. Libertarians there were trying to persuade the British rulers to implement democracy in the colony before it became part of China.
Although some moves in that direction were made, ultimate power remained with the chief executive and his cabinet, appointed previously by the UK and later by the Communist government of China. We have seen the results.
Here in the United States, my Cato Institute colleagues and I have repeatedly warned both Democrats and Republicans that new agencies and new powers will sooner or later be in the hands of members of the other party. We ask, do you really want that agency run or those powers exercised by your political opponents? And they never listen.
In recent decades, politicians had plenty of reason to do so. Every modern president has left his successor a more powerful presidency. And it’s not like presidential abuse of power goes unnoticed. Three of our past 10 presidents have been impeached, and others were sharply criticized for overreach.
As Alex Emmons wrote at The Intercept just after the 2016 election, “When Donald Trump becomes commander in chief in January, he will take on presidential powers that have never been more expansive and unchecked.” That’s why Conor Friedersdorf had begged Obama in March 2016, as the Donald Trump‐Hillary Clinton faceoff loomed, “Tyrant‐Proof the White House — Before It’s Too Late.”
“Your successor is highly likely to be less trustworthy and more corruptible than you were,” wrote Friedersdorf. “Insofar as you can, limit his or her ability to violate liberties or hide atrocities before you go.”
He also asked members of Congress, “why not begin reining in the power of the executive branch now, when the possibility of bipartisan cooperation on such a project is at its height?”
President Biden will be remembered for denying a second term to a president who claimed that “when somebody’s the president of the United States, the authority is total,” and who subsequently tried to overturn the election he lost. History will rate Biden more highly if he uses the remaining two years of his term to work with Congress to restore the checks and balances envisioned in the Constitution.
He’s not off to a good start. Biden acknowledged that his plan to extend an eviction moratorium in 2021 was “not likely to pass constitutional muster,” but he did it anyway. When a student loan cancellation was proposed, Speaker of the House Nancy Pelosi said, “People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.” But Biden did it anyway. Pelosi and congressional Republicans should act to ensure that presidents cannot circumvent Congress with lawmaking by edict.
For much of the past century we have seen a shift of power from the states to the federal government and from Congress to the White House. It’s time for Congress, the body to which the Constitution delegates “all legislative powers herein granted,” to assert its authority. Congress and President Biden should work together to rein in presidential powers over war, emergencies, international trade, and other areas and the use of executive orders in lieu of legislation.
Of course, a smaller federal government — one that didn’t claim authority over everything from health care and retirement to high school bathrooms to military conflicts on the other side of the world — would be less vulnerable to abuse of executive authority. But Congress can still insist on its authority over federal decision‐making.
The great historian Lord Acton warned, “Power tends to corrupt, and absolute power corrupts absolutely.” That’s the problem the Framers set out to confront with a constitution of divided and limited powers.
Even if you have confidence in Joe Biden, ask yourself this: Will you feel comfortable one day when the powers of today’s presidency are in the hands of, say, Ron DeSantis, Kamala Harris, Gavin Newsom, or a second round of Donald Trump?
