What are the limits of presidential power?

(Originally published 3/13/21)

Arthur M. Schlesinger Jr. popularized the term in a 1973 book of the same title. The book was a critique of the Nixon administration.

What are the powers delegated to the President? Let us have a look at Article 2 of the Constitution:

• Commander in Chief of the armed forces.
• Grand pardons.
• Make treaties with the consent of the Senate.
• Appoint judges, ambassadors, etc.
• Enforce the law.
• Commission officers.

That is about all I am able to find in the way of presidential power and authority. Article 2 is rather short and plainly worded.

Here are a few items I can not find in Article 2:

• Set immigration policy.
• Set environmental regulations.
• Regulate transportation and communication.
• Impose import or export tariffs.
• Declare war.
• Set policies regarding healthcare or education.
• Mandate masks.
• Restrict travel.
• Declare a moratorium on evictions.

Over the years, presidents of both parties have dramatically expanded the power and authority of the executive branch. This is not, however, entirely the fault of the chief executive. Congress and the courts, over the same time period, have delegated their authority and/or refused to reign in the executive.

Politicians and media figures often refer to the “three coequal branches” of government. This, I believe, is a mistake.

It seems clear to me that the intent of the Founders was that the legislative branch was to be the superior branch, followed by the executive, and then the judiciary. Congress is closest to, and most accountable to, the people and the states. The executive enforces the laws passed by Congress, acts as Commander in Chief, and facilitates foreign relations. There really is no role for the judiciary unless there are disagreements regarding the constitutionality, interpretation, or application of laws. 

Let us assume, for the sake of argument, that the Federal Government has authority over all the items I listed above. Clearly, Federal Government is one of enumerated powers – as it plainly stated in the Tenth Amendment. Less clear is, given the Federal Government has authority, can that authority be transferred (delegated) from one branch to another. The answer in practice has been yes; and the courts have generally agreed.

In recent years, with the appointment of three new members to the Supreme Court, the “non-delegation doctrine” has once again gained some attention. Supporters contend that the various branches can not delegate their authority (as described in the Constitution) to other branches. Critics claim there is no prohibition in the Constitution and that delegation is necessary given the scope and size of the modern Federal Government. There are valid arguments on both sides.

Supporters of non-delegation point out that such delegation (particularly from Congress to the executive) weakens accountability to the people and the states. Further, delegation vests more power in the executive than those enumerated in the Constitution.

Opponents argue that the scope and size of the Federal Government necessitates subject matter experts to administer agencies such as the EPA, SEC, INS, FAA, and FCC. The trouble with this argument, at least in practice, is that the heads of such agencies are political appointees – not necessarily experts. This argument also inadvertently makes the conservative case that government ought to be smaller and wield less power.

Constitutional and legal arguments aside, the damage done by Congress delegating authority to the President is obvious. It has diminished the role, and importance, of Congress. It has shifted the attention of the media (and therefore of the voters) away from Congress toward the President. It has made presidents and presidential elections far more important (and divisive) than they should be. It has endangered the republic in that it has increased the possibility that a president may assume dictatorial powers. And it has diminished the voice of the people, and the voice of the states.

Citizens and companies can be criminally prosecuted for violating “laws” which are in fact administrative rules created by the executive branch. Such rules are frequently put in place without any congressional involvement at all. You can be punished for breaking a law Congress never passed. And, the rules and enforcement can (and frequently do) change with the next administration. I doubt this is what the Founders had in mind.  

It makes sense for federal standards across the states for things like roads (lane width, height of overpasses, etc.); it would be a mess if each state decided on its own standard lane width for example. On the other hand, it is indefensible to delegate import tariffs to the whims of whoever the current executive might be.

Every president since Carter has blatantly ignored the War Powers Act, courts and Congress have done next to nothing about it. There must be limits on presidential power; if Article 2 is not sufficient then new laws and amendments are necessary.

Non-delegation doctrine deserves a fresh look. Both parties seem to agree that the imperial presidency is a good thing – provided the President is a member of their party. Given the history of the courts on the matter, I do not hold much hope they will intervene. Holding congressional feet to the fire appears to be the only solution.

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