The oldest emergency proclamation dates to the Carter Administration, 40 years ago. Two generations of crisis are enough.
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.