On September 17th, the United States celebrates Constitution Day with a marvelous display of unawareness and indifference. This affect is compounded by the proximity of the 2020 election, leading voters to be sucked into the vortex of populism, pandering, grand promises, and outright lies. With all of that in mind, let’s use this Constitution Day to remind ourselves what the President is and is not.
Presidential Powers
The President, whose only requirements for office be that he or she is at least thirty-five years of age, a natural-born citizen, and have lived in the United States for a period of at least fourteen years, is remarkably limited when considering a plain-text reading of the Constitution. These powers are especially limited when you take into consideration the level of involvement that Congress has in most matters.
- The President is Commander in Chief of the United States Military, as well as the Militia, when its service is called upon under law. Only Congress, however, has the ability to declare war.
- The President may grant pardons or reprieves for offenses committed in the United States, with the exception of impeachments (really, impeachments are explicitly excluded).
- The President may make treaties, but a two-thirds majority vote in the Senate is required. The Senate has the right to advise the President on such treaties.
- The President may “appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States,” with the advice and consent of the Senate. Congress may dictate how lower positions and subordinates are appointed.
- The President may make appointments when the Senate is in recess, but those appointments expire at the end of the following session.
- The President may inform Congress on any number of issues or concerns and he or she may make recommendations for consideration. While now in the form of the State of the Union Address, a letter is sufficient (and personally preferable).
- The President may convene or adjourn both houses of Congress on “extraordinary Occasions” or in “Case of Disagreement.”
- The President will be presented with each bill that is passed by both houses of Congress and may either sign such bills into law or veto it and send it back for reconsideration. Congress may override a veto with a two-thirds majority vote in both houses, making it law.
Given that the President is considered by many to be the most powerful office in all the land, the powers granted to that office are few and greatly limited by Congressional oversight. While the President may make decisions that could have lasting impacts on the country, most of these decisions must be approved by at least the Senate.
The primary purpose of the President is to ensure, in good faith, that the laws of the country are carried out, act as our chief diplomat to the world, and command the military when Congress declares that we are in a state of war. So, if you will indulge me, what the hell happened?
Expansion of Executive Powers
The easiest manner by which Presidents have expanded their power has been to simply try and see if anyone notices or cares. If it is not explicitly prohibited by the Constitution, why not take a shot? By establishing a precedent, it cannot be rolled back unless a future President does so or Congress and the Courts explicitly go after such new standards. As Jay Cost wrote for the Hoover Institution,
An interesting quirk of our constitutional system is how it can be altered without amendment. If a leader — usually the president — takes power for himself that is not strictly within the boundaries established by the Constitution, and the people do not complain loudly and long enough, then the founding document is effectively amended, as a new precedent is established. This is the primary way that the country has developed an immensely powerful commander in chief, despite the fact that the Constitution dedicates less than 1,000 words to the executive branch.
It has been in this manner that, over the last 100 years, the scope of the presidency has grown: Enterprising chief executives innovate new pathways of power, are met with little resistance, and thus the innovations soon become norms. Most presidents since have contributed to this process, regardless of party or ideology. No president or political movement has ever reversed the trend, nor really ever tried.
Another contributor has been our two-party system, which has effectively eliminated the separation of powers between the Legislative and Executive branches. The primary goal of both the Democratic and Republican Parties is to control both Congress and the White House. Doing so eliminates the need to work with the opposition and legislation can easily pass without much debate or oversight. An opposition Congress may just be the best thing that could happen after an election, regardless of your political affiliation.
Emergency Powers
Congress has also granted a number of powers to the President, particularly when it comes to emergencies. The National Emergencies Act of 1976 and the International Emergency Economic Powers Act of 1977 allow for a much broader scope of Executive powers, within the context of a national emergency.
The NEA allows for a significantly large number of actions that the President may take under such conditions, including the order of military construction and necessary appropriation. The IEEPA allows for greater regulation of commerce, particularly on an international scale, such as freezing assets or blocking trade. For instance, Trump’s declaration of a national emergency on the southern border allows him to direct funding and construction of a wall and impose tariffs on Mexico for allowing the continued migration of people to continue.
To end a national emergency, it requires a joint resolution between the House and the Senate, which the President must sign (or veto). Given the President’s veto power, it would most likely be necessary to have a two-thirds majority to override such actions. If the national emergency is not redeclared after a year, it expires. Otherwise, it can just be redeclared over and over.
For reference and perspective, fifty-nine emergencies have been declared 1976. Thirty-three remain active. Of those thirty-three, five belong to Donald Trump, ten belong to Barack Obama, eleven belong to George W. Bush, six belong to Bill Clinton, and one belongs to Jimmy Carter.
Who Cares?
Well, I do and so should you. Without any expectations for Congress to reign in the Executive and subject it to the necessary scrutiny that prevents a de facto monarchy, we can only expect the powers of the President to grow.
A number of presidential candidates have touted emergency powers and executive orders to carry out parts of their agenda, including firearm confiscation and environmental regulations, while criticizing President Trump for the same tactics. Every time further precedent is established, it can then be utilized by the next administration, essentially a continuous escalation.
What Can We Do?
A fair amount, actually, but its effectiveness depends entirely on our willingness to drag the fight out for as long as possible, winning as many hearts and minds as we can. As I mentioned, one of the greatest threats to the separation of powers is our two-party system. We cannot eliminate political parties, as that would violate the First Amendment, but we can introduce new parties and old parties that are heavily restricted from participation. Voting third-party is one of the best things we can do to prompt change. If you cannot bring yourself to vote third-party, there is no shame in simply abstaining from voting.
Another option is to simply make noise. If you disagree with actions taken explicitly by the President, or Congress, for that matter, let them know that you are displeased. Not just with a single tweet, but with a continuous rabble that never ceases until change is brought about.
Finally, recognize and end your hypocrisy. Every time the White House changes parties, I have to listen to the opposition complain about the actions being taken, as if it were something new or unprecedented. In reality, every new administration learns from its predecessors and expands on the practices they witnessed. Ask yourself, would you be willing to let the precedent set by your preferred administration to fall into the hands of your opposing party? In other words, would you allow your own weapon to fall into the hands of your rival? Probably not. But it always does, and it is our fault.
The Tyranny of 536
Limited government was the intention of our Constitution, even if it displeased a number of our Founders. With every administration, we find ourselves with an expanding federal government as the only means by which one can be elected is to make grand promises. The hard truth is that the only way you can stop your political opposition is to stop yourself. We all learn from example and we are all susceptible to corruption.
For Constitution Day this year, I implore you to go out and buy a Constitution, read it online, or download an app (yes, they exist). We demand that our leaders move mountains without such powers and so they must invent them. The only way we can reverse the flow of power from the people to the Executive is to educate ourselves and make some damned noise.
