A Brief Window to Reduce Presidential Power

First, in the truest tradition of conservative thought, the bad news: At this time on Wednesday, one of the major parties in American politics will be institutionally invested in inflating a presidential office already swollen beyond healthy constitutional proportions.

Now the good: For the next 48 hours, each of them is terrified it will be the other. The tightening presidential contest opens a constitutional window, briefly. The rational response to a campaign this close is bilateral constitutional arms reduction: both parties agreeing, before the votes are counted, to deflate the power of the Presidency.

Such an agreement, like that between gunslingers facing off on a Western street, would require two absent mechanisms: trust and enforcement. Moreover, the sheer power of the presidency—which Hamilton could not have predicted when he proclaimed, cue the laugh track, the “moral certainty, that the office of president will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications”—probably induces irrational risk-taking, such that the enticements of exploiting a hyper-powerful office make, at least in the moment’s heat, the risk of being exploited by it seem bearable.

It is already evident enough that the allures of power have warped the judgment of several of those in both parties—witness, for example, the lexical contortions entailed in the efforts of otherwise intelligent people to distinguish between “supporting” a presidential aspirant and “endorsing” him—but should there remain sufficient sobriety for a reduction of presidential arms, the contours of an agreement might include both parties promising the following.

First, the next President disclaims a systematic power to suspend enforcement of laws or provisions of them in order to derange policy schemes of Congress. That is, the President will not make policy through prosecutorial discretion or other means of non-enforcement.

As Adam J. White has noted in this space, the Presidential discretion not to enforce laws is a well accepted “constitutional safety valve.”  But it is, as he explains, that: first, constitutional, rather than a tool of policy, and second, a safety valve, not the main plumbing. A refusal to enforce laws should be reserved for exceptional and, crucially, constitutional objections.

Similarly, the President will interpret laws of Congress in accord with their plain intent and the obvious meaning of words. If he or she wishes to make policy, the forum for doing so will be Congress itself, not, like variations on a poetic theme, new administrative interpretations of existing statutes. Witness the Department of Education’s “guidance” to “help” schools comply with Title IX by interpreting that law’s ban on sex discrimination in education to apply to assertions of gender identity. This is “guidance” by dictation and “helping” by threatening to withhold federal funds, and it is, in any event, rooted in a preposterous claim about the law.

Next, in exchange for Congress renouncing omnibus legislation, the next President will veto laws to which he or she constitutionally objects rather than signing them and issuing statements that essentially declare parts of them not to be binding. In fairness to Presidents, omnibus bills that pile multiple issues into one measure can create impossible dilemmas in which, to obtain what they cannot forgo, they must also accept what they cannot countenance. But Presidents Bush and Obama have also used signing statements to create a de facto line-item veto that allows them to pull end-runs around Congress.  Speaking of which:

The President agrees to submit to the Senate, for ratification as treaties, any agreements with foreign nations that impose substantial obligations on the United States. Executive “agreements,” whether the status of forces agreement with Iraq in 2008 or the Paris agreement on climate change in 2016, circumvent the Senate’s authority to advise and consent to treaties.

To be sure, Senate confirmation of treaties is often difficult to obtain. It is supposed to be. Requiring it would, as Article II, Section 2, stipulates, encourage Presidents to make treaties “by and with the advice and consent of the Senate” (emphasis added). This authority, like most of the express powers of the President, is shared with Congress.

Finally, in any case in which a sustained and serious military operation is openly contemplated for any substantial duration, the President and Congress will at least confer on the propriety of a declaration of war. A resuscitation of Congress’ war power would act as a brake on precipitate uses of the military, introduce a broader range of perspectives closer to the public that would bear the burdens of war, and do Presidents the favor of sharing accountability for the decision to go to war. It would also help to revive Congress as an institution.

To be sure, all of these elements of an agreement entail discretion, and each can be easily evaded. That makes it all the more telling that it would be so difficult even to obtain agreement on this much, which is to say agreement on the Constitution on which we already agreed and to which the next President will take an oath.

Bilateral constitutional arms reduction approaches the plate with two strikes already called: It is “constitutional,” which is a mode of discourse disfavored compared to political expediency, and it “reduces” that which it has become the deranged obsession of the Presidency to augment: power. One effect of the separation of powers is to reduce the stakes of single elections, since the entire apparatus of power can never be captured in one of them. The contemporary Presidency, the impetuous vortex into which power has, against Madison’s prediction, been diverted, now allows too many chips to accumulate on the table in a single hand.

On the other hand, courtesy of tightening polls, a window has opened. For the briefest of times, no one knows in whose hands that power will lie, supplying a vivid illustration of the axiom that one should never permit the exercise of an authority one would not entrust to someone with whom one disagrees. Two days from now, one side will be opportunistically unwilling to reduce the power of the Presidency. At this moment, it is precisely for opportunistic reasons that both should.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on November 07, 2016 at 09:24:33 am

This essay leaves me almost optimistic.

read full comment
Image of Paul Binotto
Paul Binotto
on November 07, 2016 at 10:12:36 am

Don't be.

The ballooning presidency is a symptom; Congress is failing it's constitutional role. Too much power and responsibility has been transferred to Washington; "efficiency," not "liberty" is the cry of Democratic and Republican Progressives. As a result, Congress has: (1) ceded too much power to administrative agencies in the Executive Branch; (2) promised too lavish entitlements that will restrict the discretionary budget, controllable by the Congress to nothing within a few decades; (3) collapsed under the strain of managing a government that has become too powerful and too big (Does the Roman Republic come to mind?). This gross dereliction of duty is having consequences and I'd challenge anyone to point to an actual fact that would indicate any change of course is going to happen soon.

read full comment
Image of Ron Johnson
Ron Johnson
on November 07, 2016 at 11:13:07 am

Mr. Johnson,

I agree with everything you say and I assure you, my feigned expression of optimism is heavy weighted in skepticism.

read full comment
Image of Paul Binotto
Paul Binotto
on November 07, 2016 at 14:46:53 pm

I would suggesting looking at nations with new and improved constitutions. Sooner or later the experts are going to get it right. It's like genetic trial and error. After thousands of failed mutations, eventually an improvement happens. Thailand with its new constitution ratified and becoming operational soon looks like it has an improved constitution, for example.

People in the US will not accept proposed changes based on theoreticals or the promises of politicians. A functional foreign government based on solid principles must be formed and studied, and it must demonstrate substantial improvements before the US democracy (meaning the most wealthy and most politically powerful) would actively back reforms at home that incorporate those improvements.

But a lot of negative evolutions have to happen before you get a positive one.

Meanwhile, brace for impact!

read full comment
Image of Scott Amorian
Scott Amorian
on November 08, 2016 at 10:58:11 am

It requires some temerity to challenge the premise underlying Professor Weiner’s concept of constraining the Executive Office. It seems to ignore a basic factor of what the Res Publica has become, and in that transition (and transformation) the powers necessary (if not constitutionally proper) for the functions of the Executive Office.

The populace, through their electorates, have determined their “wants”** for a multi-functional central government. Views of chronologies may differ, but the trends probably can be traced back to around 1835, and certainly to the establishment of the Department of Agriculture in 1862 (something “the people” needed). The historical results are with us today as a central government that has multiple functions, requiring ***Multiple Executive Functions*** that exceed the capacity of an individual (a fact often denied by office seekers). This is a form of Oakeshott’s “Purposive Government;” an instrumentality to attain objectives. That has become the Res of our Publica.

** A 500+ page text could be compiled on the descriptions and
developments of those “wants.”

As a result, Article II of the Constitution has become incomplete to provide for a Multifunctional Executive Office. If we are to continue to have a multifunctional central government (is there any indication we will not?), the powers in that office must be made precise to the tasks, which could (probably does) call for a change in the constitutional structure of the office. There will be continuing misfunctions and malfunctions under the present order.

Whilst these conditions might be initially addressed by the manner in which the legislature provides for the Executive Departments, a precise allocation of executive powers could be distributed, and that of the popularly elected President in the overall Executive functions, could be realigned to issues of vetoes and other limitations (or accountability) of the heads of Executive Departments. Yet, the powers necessary cannot be constrained, they must lie somewhere, and the legislators have abandoned many of theirs.

A basic first step would not rely on some constraint of the powers of the President in the Executive Functions, but, would establish a more precise distribution of the powers for the Executive Functions .

The ideal is a government of limited functions. But, that just ain’t gonna happen until the coming fiscal crisis arrives.

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on November 08, 2016 at 14:26:57 pm

"The ideal is a government of limited functions. But, that just ain’t gonna happen until the coming fiscal crisis arrives."

You summed it up nicely right there Richard. Things are the way they are for a reason. Until the reasons change, the way things are won't change.

read full comment
Image of Scott Amorian
Scott Amorian

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.