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Congressional Reforms of Excessive Executive Power: Can They Be Enacted?

Executive power has been growing.  Many people on the right have come to appreciate this growth over the last 6 years of the Obama Administration.  But the growth in recent years first began under George W. Bush.  In this area, Bush and Obama have more in common than not.

Can anything be done about this?  While it is possible that the courts could act to constrain the executive, the better way – in terms of effectiveness – would be if the Congress were to pass reforms of executive power.  But can Congress feasibly constrain the executive?  One question is whether Congress is willing to take such constraining action.  Another is whether Congress would have the power to take such action, given that the President has a veto over legislation.

If one looks at modern American history, there appear to be two situations where significant reforms of the existing power of the executive branch have been enacted. 

The first situation is exemplified by the War Powers Resolution of 1973, which was passed by a Democratic Congress over a Republican President’s veto.  In this situation, a single party has overwhelming control of the Congress and a President of the other party is in power.  While the party controlling Congress might have viewed the matter differently if a President of their own party was in power, they have little sympathy for the other party’s President.  Thus, they will override a presidential veto to limit the President’s power.

If the Republicans now had veto proof majorities in the Congress, there is a good chance that we would see laws constraining executive power.  But, of course, they don’t.

The second situation is exemplified by the FISA Act of 1978 (Foreign Intelligence Surveillance Act) and  by the Ethics in Government Act of 1978, which brought us the Independent Counsel.  Both of these laws were enacted by Democratic Congresses and signed by a Democratic President.  In this situation, there is unified government.  Normally, one would expect that the Congress would not want to limit their own party’s President.  But if the party, including the President, has a strong ideological preference for reform, then the majority party in Congress may be willing to limit the President of their own party and the President may be willing to sign the legislation.  Here, ideology outweighs institutional interests.

If the Republicans win the presidency in 2016 and keep the Congress, then I believe there is a chance that some significant reforms could be adopted – assuming that the Republicans actually have an ideological commitment to them.

Whether they have such a commitment will depend in large part, on who the President is.  If it is a reformist President, such as President Reagan, then I believe there is a good chance that the Republicans would pass important reforms.  If it is a big government Presidency, such as George W. Bush, then I believe there is a much smaller chance.

Reader Discussion

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on March 11, 2015 at 10:40:47 am

Good point:
" But if the party, including the President, has a strong ideological preference for reform, then the majority party in Congress may be willing to limit the President of their own party and the President may be willing to sign the legislation. Here, ideology outweighs institutional interests"

Of course, the GOP has no ideological core - other than going along with the hipsters in the other Party and the Chamber of Commerce.

Although, last phrase "ideology outweighs institutional interests" may need to be re-worded. would not ideology (of congress and party) support the institutional interests of the Congress in limiting Executive power?

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gabe
on March 11, 2015 at 11:30:55 am

I vaguely recall a quote from a senior Congressman (the Speaker?) to a junior colleague from his party: No, that congressman from the other party is not our enemy; he is merely a colleague from across the isle. Our enemy, as everyone knows, is the Senate.

This reflected the perspective anticipated by the drafters of the Federalist Papers: Institutions would develop internal loyalties, and would to power grabs by rival institutions; in this manner, the watchmen would watch each other. And this system worked for centuries. But technological innovations have changed that. Cheap air travel lets congressmen spend ever more time in their districts and thus ever less with each other. Closer scrutiny of congressmen and their votes causes congressmen to hue ever more rigidly to whatever a given constituency demands, leaving them with less discretion to favor institutional imperatives.

Today congressmen are only too willing to jettison any sense of their institution as a body having its own interests, and instead attend to whatever will help get them reelected. This is evidenced most recently by Republican congressmen rebelling against their Speaker in getting Homeland Security funded. The party and the institution looked bad, but individual congressmen got to burnish their ideological credentials for the benefit of primary voters – and that’s what really counts, right?

So it seems anachronistic to ask Congress to rein in the power of the Executive, as if anyone cared about these institutional distinctions anymore.

That said, I have also wondered how to rein in the power of the Executive. And among the most successful politicians to do this was – Richard Nixon! Who has inspired a greater wave of reforms than he? So, taking a page from his playbook, I fantasize about what I might do as president:

“I have drafted a bill to outlaw the practice of extraordinary renditions, black prisons, Guantanamo, drone assassinations of US citizens, etc. Do some congressmen think that their tough-on-terrorism constituents want an all-powerful executive? Fine. But don’t be surprised if members of those congressmen’s family suddenly start disappearing. Do I have them in custody? Maybe; maybe not. I’m not going to tell you unless you force me to by legislation. Hell, maybe even by Constitutional Amendment. Be assured, I am entirely willing to sign the bills.”

“I have drafted a bill to strengthen prohibitions on domestic surveillance. Do some congressmen think that their tough-on-terrorism constituents want an all-powerful executive? Fine. But don’t be surprised if those congressmen find their confidential information leaked to the press. One by one. Every day. At noon. Until a bill is passed to prohibit the practice. Please, use no more haste than you deem appropriate. But I note that it’s already 11:30….”

Ultimately, the people most jeopardized by the erosion of civil liberties are people in a different social class than congressmen. While congressmen may fear this erosion, this fear is theoretical, and less motivating than the very real fear of a primary challenge. If congressmen had more skin in the civil liberties game, they might vote as if they cared about executive overreach.

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nobody.really
on March 11, 2015 at 11:53:25 am

" If congressmen had more skin in the civil liberties game, they might vote as if they cared about executive overreach."

Let me do you one better:

If congressmen / women had more skin in the a) retirement game, b) healthcare game, c) civil rights game, d) regulatory game, e-z) etc.etc. etc - ......

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gabe
on March 13, 2015 at 09:56:52 am

It's a difficult debate, and one that largely varies based on which side of it you're on-- sizing up similar policies under the Bush administration, for example, may appear radically different to the same person that may hold them in high regard as a positive strength of the Obama administration.

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Brian
on March 13, 2015 at 16:09:27 pm

A more credible approach to reform through a reform President would be for the reform President to champion an Article V convention of states with an agenda of credible reforms. A presidential candidate running on such a platform would certainly have to be an Independent candidate because the two main parties are so deeply behind the current situation.

More citizens are leaving the two main parties and becoming independents. The February 11, 2015 Gallup poll shows 43% Independent, 25% Republican, 29% Democratic. Ten years ago, February 7, 2005, it was 30% Independent, 34% Republican, and 35% Democratic. That is a substantial shift away from the two main parties. I monitor the Article V COS movement and I am finding that more state legislatures are signing up for the Article V COS. That's why I believe that a reform presidential candidate as I have described will eventually have an opportunity to win and enact reforms through a COS. But the reforms must be credible. And they must not threaten the financial stability of the people. And the reform candidate must be a true reform candidate, not another loyal partisan running under a fake label trying to circumvent effective reform.

A change in the method of appointment of Justices would be most constructive. Reform of campaign finance would be similarly constructive because what we have for government now is essentially a bribe-acracy. An elected representative of the people who is charged and empowered exclusively to monitor and impeach (for trial by the Senate) any member of government, and to challenge any and all laws, past and present, for constitutionality would be useful as well.

My point is that there is at least one credible (and constitutional) option to government reform that does not try to work within the status quo as this article proposes.

The legislature is behind most, if not all, executive overreach, so while I agree that a legislative approach to a solution would be most desirable, I do not see it as being pragmatic. Things are the way they are in large part because Congress wants it that way.

My personal preference would be through reform of the Court. I would prefer to see a change in the method of its appointment so it is longer appointed by the parties it is supposed to keep a check on, to an outside party such as the governors of the states. The existing design, in effect, puts the bank robbers in charge of hiring the bank guards.

Another theoretical (and unrealistic, IMO) approach would be through executive coup, backed by popular consent. Basically, a reform President would borrow a page from Lincoln, and pronounce that the operation of government has moved so far outside the Constitution that natural law must be applied and the problem corrected without using the standards of the Constitution. With enough popular support for specific reforms, the reforms could be made. But this approach would be radical, and public support for the resultant reforms would be weak because a minority of the public would not accept those reforms. This, I believe, is what the current government is attempting and it is being thwarted by a lack of sufficient public support.

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Scott Amorian
on March 24, 2015 at 22:53:45 pm

Eric Voegelin tells us that man is constantly engaged in a process of gaining and losing 'truth, reality, and order.' It is the primary element in the 'tension of existence.'

This blog is an excellent example of how we can begin the process of restoration, hopefully grounded on the Constitutional paradigm.

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Robert Cheeks

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.