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. 

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Ramsey and Tillman on the Receive Ambassadors Clause

Over at the Originalism Blog, Mike Ramsey and Seth Barrett Tillman have been debating whether House Speaker John Boehner’s invitation to Israel’s Prime Minister Netanyahu to speak to Congress is unconstitutional.  See also the posts by David Bernstein and Peter Spiro.

Here I do not want to take a position on the issue, but just to note some interpretive moves that Mike and Seth make concerning the Receive Ambassadors Clause, which provides that the President “shall receive Ambassadors and other public Ministers.”

Seth argues for a strict reading of ambassador and public minister.  He argues that Netanyahu is neither an ambassador nor a public minister.  An ambassador has a meaning that excludes heads of government and other public ministers extends only to “diplomatic officials having lesser status or rank than ‘Ambassadors.’”  He supports this reading of other public ministers with various other clauses that seem to suggest this reading of other public Ministers.  See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power).  See also Article 3, Section 2, Clauses 1 and 2 (similar as to judicial power).  As a reading of the language, Seth’s argument here is quite plausible.

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Abolish the State of the Union Address  

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The enigma, and perhaps impetus, of swelling executive power is that when constitutionally asserted, the presidency is shrinking. Witness the White House’s apparent intent to use the State of the Union address to propose that—wait for it—Congress enact national standards regarding how quickly companies must inform customers of data breaches.

Now, hacking is bad and reporting it is good. But it is also time—and the constitutional conservative should reach this conclusion with due reluctance—to abolish the State of the Union address, whose most pernicious effect is its political imperative for the President to propose as many new ideas as possible, regardless of the need for them, while Congress occupies a supine posture of reaction.

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A Partyist Solution to Partyism

Cass Sunstein has offered a new solution to advance good governance in a time of partisanship—what he terms an age of “partyism.”  Because a partisan world leads to gridlock in Congress, he suggests that executive agencies should continue to be empowered with substantial latitude to interpret their own statutes.  Indeed, Professor Sunstein argues that agencies should gain a “bit more” discretion to construe existing statutes since Congress will not be doing much updating.

Michael Greve offered his own excellent demurral to Professor Sunstein’s solution. Here are two additional points of critique.   First, empowering agencies is not neutral with respect to partisanship because bureaucrats lean to the left.  Second, empowering agencies is not neutral as an ideological matter.  The progressive agenda itself needs substantial discretion to continue the effectiveness and political endurance of much centralized regulation.  In contrast, conservatives and libertarians are more sympathetic to market and other forms of decentralized order that will take hold even if federal regulation cannot be updated.

There is substantial evidence to support the first point that most federal employees lean to the left of Republicans.

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It’s My Party. Cry If You Want To.

elections 2016 conceptual post

Professor Cass R. Sunstein has unearthed a new –ism: partyism, meaning an animus or aversive reaction to someone based solely on party membership. As in: “I don’t care if people think I’m a racist or a child molester. But I’d die if they thought I’m a Democrat.” (I think Ann Coulter said that long ago. If she didn’t, she certainly could have.) Partyism, Professor Sunstein writes, is on the rise, and it contributes to political gridlock. 

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The Inevitability of Monarchy

In The Once and Future King: The Rise of Crown Government in America, I argued that the United States was drifting towards the one-man rule of an all-powerful President. It’s not something people, especially American conservatives, wanted to hear, but then I had a secret ally in Barack Obama. He’s the gift that would never stop giving—but for term limits.

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The Ghosts of Presidents Past: A Conversation with Stephen Knott

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Presidential power scholar Stephen Knott discusses in this latest edition of Liberty Law Talk his book Rush to Judgment: George W. Bush, the War on Terror, and His Critics, recently released in paperback form by University Press of Kansas. Knott has a point in this book. He argues convincingly that the vituperative critics of George W. Bush’s use of executive power, in many instances, were willfully ignorant of the historical use of these powers. Past presidents, ranging from George Washington, Thomas Jefferson, James Madison, Abraham Lincoln and certain presidents in the twentieth century, defended and exercised powers similar to those…

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The Post-Constitutional Presidency Turns Inward

White House Wasghington DC view

The syllogism by which healthcare deadlines may be deferred against laws, recess appointments made without recesses, and international agreements negotiated sans treaties runs as follows: The national government is empowered to pursue the public interest. The power of the national government is vested in the person of the President.  Therefore, the President is empowered to pursue the public interest.

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Return to the Barbaric

The President’s use of executive power outside and above the bounds of the Constitution is well known at this point. In policies ranging from the railroading of creditors in the auto bailouts, to Obamacare by waiver, eliminating key work provisions in the 1996 welfare reform legislation, Deferred Action for Childhood Arrivals, and to the informed suspicion that he will unilaterally legalize 5 to 6 million illegal immigrants, this President has entered a new realm of abuse of power. Resulting from the stress he’s placing on our constitutional order have arisen significant interventions that attempt to underline how and why we have arrived at this new dimension of executive power, even in the case of Congress there is an attempt to reclaim its authority, if only in a pusillanimous manner.

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The Imperial Mount Rushmore

Though it’s been a few weeks since it appeared, I would be remiss if I didn’t mention Stephen Knott’s excellent piece on whether Woodrow Wilson destroyed the office of the presidency. The clamor about the imperial presidency is on the rise with many commentators (such as George Will) and Knott’s article gives us a better understanding of its rise, as well as its implications. Knott describes the “expectations gap” that has arisen due to modern conceptions of the presidency, where we expect the president to heal the planet, rather than work to enact reforms within the institutions of constitutional government.

In response to Professor Knott I would only mention that I think Woodrow Wilson may not even deserve top billing in terms of producing the rise of presidential power.

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