The scope of presidential power

December 19, 2016

Since the election, what’s been going on with conservatives and Trump populists is not clear. Conservatives are talking about constitutional conventions and amendments. Given the lack of coherence, it’s hard to know what populists, or at least Donald Trump, are talking about. 

 

The tyrant usurper: A major complaint from conservatives has been that president Obama has abused and unconstitutionally applied or expanded executive powers by unilateral action. One reason for that is, as one observer puts it, Obama was trying to “circumvent congressional inaction or opposition.” That raises the narrow question of whether a president facing a hostile congress has a duty to try to govern via executive action when congress is broken. It also raises the broad question of what the constitutional scope of executive power actually is. Maybe Obama wasn’t a usurper at all and had a duty to act in the face of an AWOL congress.

Given the constitution’s lack of detail on many matters, including the scope of executive power, the question cannot be conclusively resolved. Opinions on the various sides will be dictated mostly by social identity, personal ideology and a personal rational that supports personal belief. There’s no surprise since that’s the basis for most political beliefs and the historical record is almost always open to various interpretations. Put another way, most political beliefs, including ones about the scope of executive power, are mostly personal and subjective.

The case for the unconstitutional executive: Writing in the Wall Street Journal (December 17-18, pages C1-C2), Jeffrey Rosen, President and CEO of the non-partisan National Constitution Center and professor of law at George Washington University (Yale law school graduate), argues that executive powers “have ballooned far beyondtheir constitutional bounds.” Coming from a bona fide non-partisan constitutional scholar, that’s a striking claim.

Rosen’s essay, The Over-Inflated Presidency, argues that the debate centers on whether constitutional executive powers are limited to what the constitution explicitly authorizes. One interpretation, the ‘conservative’ view, is that executive power is limited to those explicitly enumerated. The powers include power to command the armed forces, at least in times of war, if not always, veto of congressional legislation, pardon for certain offenses, power to convene congress to declare war and power to make executive appointments and treaties with senate advice and consent.

Another interpretation, the ‘populist’ view as Rosen sees it, is that the president has the authority do whatever the constitution doesn’t explicitly forbid. Rosen fears that president Trump will have this mind set. 

A third view, one that Rosen doesn’t mention, is a pragmatic, public service-focused view holding that although executive power is flexible or ill-defined, it falls short of imposing tyranny as described by some reasonably acceptable conception of presidential power, e.g., no unreasonable or unnecessary infringement on (i) constitutional personal freedoms, (ii) state powers and (iii) congressional powers. For the pragmatic view, the devil is in the details, e.g., what’s the definition of unreasonable and unnecessary? Those concepts have meanings that vary with the observer’s mind set.

Of course, the conservative and populist views also have their own devils. The constitution does not say that the president is limited to only enumerated powers, or that the executive can do whatever the constitution doesn’t expressly forbid.

Rosen, a believer in the conservative narrow scope vision of presidential power makes the following observations. They illustrate the practical difficulty in attempts to definitively define constitutional limits on executive power.

Rosen points out that since the constitution doesn’t specify if the president has powers beyond what was enumerated, “it fell to George Washington to fill in some of the gaps—establishing, for example, the president’s power to recognize foreign governments . . . .” That’s an explicit statement that executive powers include at least some matters the constitution is silent about.

There’s nothing surprising about the existence of “gaps” in the constitution because the constitution would have to specify every possible act a president would need to undertake, which is an impossible task. President Washington ran into the limits of express powers regarding the constitutionality of chartering a national bank. That led to the birth of the concept of constitutional flexibility and that some powers are implied to exist because they are necessary and proper for the normal functioning of government. The courts continue to recognize implied powers (https://en.wikipedia.org/wiki/Implied_powers) that are not explicitly named in the constitution.

Rosen argues that Franklin D. Roosevelt “exercised extraordinary powers across many domains: detaining Japanese Americans in California prison camps, trying and executing accused Nazi saboteurs, disregarding U.S. neutrality by implementing the Lend-Lease program and ultimately constructing the New Deal administrative state. He did all of this, it should be noted, with the tacit or explicit approval of Congress and the Supreme Court.”

That raises the question of why neither congress nor the courts acted at the time of FDR and any time thereafter to restrain executive actions that are far beyond constitutional bounds. If some of what FDR did was blatantly unconstitutional, why do most or all of his illegal actions still stand today? The situation makes no sense, unless one assumes that what FDR did was arguably within the scope of executive power.

Alternatively, one could argue that once an illegal executive action has been taken and not timely challenged, it becomes legal by default of the legislative and judicial branches. There’s no constitutional or logical basis to believe the latter option applies, so the former best explains the situation. Even today in 2016, congress or the federal courts could repeal or strike down FDR’s illegal acts if they were in fact illegal.

 

When congress is AWOL: We are in a time when congress doesn’t function properly. Partisan disputes have displaced regular debate, compromise and legislating. Maybe that will change when the new congress convenes in 2017. Maybe it won’t. Regardless, president Obama had to work with a hostile congress that has not functioned normally at least since republicans took control of the House after the 2010 elections. Under the circumstances, should the scope of presidential power be as the conservative view sees it even if congress is dysfunctional?

Two fundamental problems: The constitution could have included language specifying that the president either had powers not otherwise reserved to the other branches of government, the states or the people. It could have stated the president had no powers beyond those enumerated. Instead, the constitution is simply silent.

Given the long history and continued judicial and congressional acceptance of some flexibility over the scope of presidential powers, it’s reasonable to believe that the president has some powers that are not enumerated and those powers can include ones far beyond the constitutional bounds that some experts like Rosen see. If nothing else, that’s how American politics have in fact operated under the constitution. That alone should count for something.

A second problem is that arguments for a scope of presidential power limited to the enumerated powers plus some “gaps” are rarely or never accompanied by any vision of what needs to be changed, how that would be done and what effects on the American people that would likely impose.  Rosen’s criticism is no different. He gives no vision for how government would work differently and why or how that would be better.

He also says nothing about what effects on society a narrow powers scope president would have or how America and society would have been different and better if all presidents going back to Washington had strictly adhered to only enumerated powers and no more. If nothing else, Americans deserve to know how government action would have been different and how that might have changed America.