SPEAKER NANCY PELOSI recently declared that the 45th president has driven the nation to a “constitutional crisis.” Pelosi’s statement is true, but it doesn’t go far enough. The modern presidency itself has become a constitutional crisis.
Over the past century, American presidents from both parties have concentrated authority in the White House and degraded the Constitution. They have grabbed power from Congress; suborned some judges and ridiculed others; surveilled without warrants; commenced wars without sanction; made unilateral deals with foreign powers; and broken laws of all kinds.
The intensity and nature of abuse varies by president. But all modern presidents have abused power, because they have so many powers to abuse, and face so few practical constraints on their authority.
The Framers tried to protect us against overreach by creating a system of separated powers, subject to checks and balances. If a president oversteps, the other branches can push back. But that works only if the other branches are roughly co-equal to the executive, in both capacity and ambition. They no longer are.
Over the decades, the executive has become an overbearing Leviathan. It employs 4.1 million people, a population larger than that of the entire United States in 1790, and oversees a budget of more than $4 trillion, a sum eclipsing Germany’s GDP.
The other branches are minute by comparison, unable to check even a fraction of the executive’s excesses. The legislature and judiciary collectively employ just 76,000 people, scraping by on a $12.5 billion allowance.
And they can’t or won’t keep pace with the executive’s growth. Congress, for example, froze its elected membership decades ago, and has cut its staff by 30 percent since 1987.
As Stalin purportedly observed about power, quantity has a quality all its own, and as Orwell observed about Stalin, some animals are more equal than others.
THE MASSIVE BUREAUCRACIES help make the president that most equal animal. Bureaucracies affect every facet of our lives, from food safety to air quality. Almost all bureaucracies belong to the executive branch, and that creates problems.
If executive bureaucracies enforced the law even-handedly, that would be fine — enforcement is the executive’s job. But bureaucracies also make rules with the force of law, and adjudicate the results. This allows presidents to sidestep separation-of-powers, and to make (or unmake) policy by fiat.
Consider immigration policy: For years, Congress has repeatedly failed to pass versions of the DREAM Act, which would protect certain undocumented immigrants who had arrived as children. In 2012, President Obama decided to do what Congress would not. His executive actions unilaterally “deferred” deportation of certain undocumented immigrants and established the DACA program.
All this was framed as an exercise in “prosecutorial discretion.” But DACA emplaced a policy Congress had not passed, while declining to enforce laws actually on the books. It felt like legislation by other means.
Humane, arrogant, or otherwise, DACA infuriated the right, and contained the seeds of its own demise. Once Donald Trump swept into office, propelled partly by conservative outrage over DACA, policy flipped. President Trump undermined DACA, while then-Attorney General Jeff Sessions aggressively pursued immigration cases the Obama administration had let slide. The immigration flip-flop threw lives into chaos.
What makes immigration cases under the executive especially alarming is that they are decided not by real judges, but by the Department of Justice’s in-house “courts.” The judges are employed by the executive, and their decisions are subject to reversal by attorneys general. The results are foreordained, as they often are in bureaucratic adjudications, from Social Security hearings to financial regulation cases.
Presidents also use bureaucracies to rewrite the regulations that govern daily life. When Congress “delegated” legislative powers to the bureaucracy, it expected that regulations would be made in accordance with legislative, not presidential, design. But modern presidents have asserted control over all aspects of bureaucratic activity, including the making of regulations.
As a result, presidents can adjust policy almost at will. Trump has reversed Obama-era policies on matters like overtime pay and environmental regulation, while issuing new rules of his own. This April, Trump further consolidated the executive’s control of regulatory affairs — including over “historically independent” bureaucracies.
America needs bureaucracies, but it doesn’t need bureaucracies exercising all powers of government under the direction of one person alone.
IT’S NOT ENOUGH to make rules and judge law; presidents also want the power to say what counts as law in the first place. The crucial tool for this is the “signing statement,” which has been used regularly since the Truman era.
The executive uses signing statements to declare that it will not enforce legal provisions it deems unconstitutional. That’s not as innocuous as it sounds. Signing statements verge on unconstitutional line-item vetoes, and violate the president’s constitutional duty to take care that laws are “faithfully executed.”
Signing statements became even more powerful in the Reagan era, when the DOJ’s Office of Legal Counsel suggested, via memo, that presidents use them to “increase the power of the Executive to shape the law.” Shaping law, however, is traditionally a legislative (and judicial) prerogative.
The DOJ memo made its author — Samuel Alito — a star. Quite possibly, it made him a Supreme Court justice, just as catering to executive power advanced the careers of most of our sitting justices: Alito, plus Neil Gorsuch, Elena Kagan, Brett Kavanaugh, and John Roberts. The expressway from presidential advocate to judicial nominee should be alarming to those who hope courts will check executive excesses.
When it comes to crisis, the executive casts off constitutional shackles altogether. Declaring war, for example, is a right the Constitution gives to Congress. Yet, no president since Franklin Delano Roosevelt has sought full, proper sanction for a major conflict.
Instead, presidents argue that war is an inherent presidential prerogative or that Congress delegated war powers, just as it lent legislative prerogatives to the bureacracy. Alternatively, presidents claim that their fights don’t count as “war” — not Korea, Vietnam, Syria, and so on. If Iran turns hot, it won’t count as “war,” either.
If nothing qualifies as a “war,” anything qualifies as an “emergency.” Presidents have declared emergencies in response to everything from postal strikes to trade tiffs. Presidential emergency powers, both granted by Congress and baldly asserted by the president, are enormous and they tend to linger.
Indeed, in 1973, a Senate committee noted that “a majority of the people of the United States have lived all of their lives under emergency rule,” which gave presidents “enough authority to rule the country without reference to normal constitutional processes.”
Rightly alarmed, Congress committed itself to reviewing presidential declarations of emergency. Yet, notwithstanding dozens of such declarations over the past 40 years, Congress has made only one full attempt to curtail presidential excess. And that attempt, a response to Trump’s 2019 border declaration, was promptly vetoed.
If it feels like presidents act like men beyond the law, that’s because they often are. Claims of “national security” and “executive privilege” allow presidents to stonewall the other branches. Even when abuses are revealed (often by leakers and journalists whom the executive is keen to prosecute), the DOJ insulates presidents against indictment and makes subpoenas difficult. Meanwhile, the courts have created doctrines of “sovereign immunity” that largely shield government and its officials from civil liability for misconduct.
THE CONSTITUTION DOESN’T describe anything like the modern presidency. But the Declaration of Independence does — the British monarchy, whose actions the Framers described as “absolute Tyranny.” The monarch refused to acknowledge laws passed by the legislature; suborned the judiciary; removed the military from civil oversight; abrogated traditional liberties; interfered with trade and immigration; and harassed the public with swarms of unaccountable bureaucrats. It’s an eerily familiar list.
We know how the Founders resolved their encounter with despotism. They did not dispatch a special counsel to Windsor, draft articles of abdication, or hope that George IV would improve on George III. They tossed the throne altogether. The real problem wasn’t the monarch, but monarchy.
The modern presidency is not so bad that we need a revolution; equally, it’s too problematic to be ignored or quickly fixed. To rehabilitate our system, Congress needs to re-staff and reassert itself. And the legislature and judiciary should retrieve some of the quasi-legislative and quasi-judicial powers that the executive has borrowed or stolen. That will take a generation.
In the meantime, we can limit the damage by electing presidents who embrace constitutional modesty. They do exist. As a candidate, Obama promised to avoid executive unilateralism, while Dwight Eisenhower offered himself as an antidote to Harry Truman’s excesses. Neither completely succeeded, but their presidencies were comparatively sane.
Doubtless, a forceful White House retains a superficial appeal. The legal system is slow and frustrating. With the right president, unilateralism seems expedient. That’s why so many of the 2020 candidates promise to effect policy by executive order.
Of course, that logic of expedience bought us the imperial presidency in the first place. If the legal system is too clunky — and I’d be the first to agree that it is — better we streamline the law than let one person stand above it. Otherwise, we must take kings as they come.Bruce Cannon Gibney is a lawyer, venture capitalist, and author of the new book, “The Nonsense Factory: The Making and Breaking of the American Legal System” (Hachette).