When Congress abandons legislating, power flows to the president, upsetting the separation of powers the founders sought to constitutionalize. Kaiser notes, “The preeminence of presidents had been a widely accepted proposition for half a century, despite the founders’ clear expectation that Congress would be the most influential branch of government.” We now expect that the president will set the agenda, legislative and otherwise, and the executive branch, not Congress, primarily drafts the legislation.
This accretion of presidential power has occurred no matter who occupies the White House, but this shift has also been pushed by a brand of conservativism. These ideologues speak of the “unitary executive.” On one level this is a constitutional truism. Our constitution does vest the executive power in a president, not in a group. Section 1 of Article II of the Constitution states, “The executive Power shall be vested in a President of the United States of America.” But when these conservatives support the “unitary executive” they promote their theory that presidential power is expansive, perhaps unlimited, when it comes to national security and that Congress cannot interfere with what these conservatives consider to be executive power. This is not the place to explore these concepts and their apparent contradiction with constitutional originalism except to note that the president, who now has powers never dreamed of by the founders of our country, should have even more under the “unitary executive” theory.
Power has also flowed from Congress to the president because Congress has expressly ceded power to the president. An example came after 9/11 when Congress authorized the president to use force against anyone person or entity the president “determines planned, authorized, committed, or aided” the terrorist attacks. The president was granted the power to take warlike actions if the president found certain facts to be true—in this case that a country, organization, or a person was involved in 9/11. Congress placed no restriction on this presidential factfinding and provided for no review of the decision. Congress washed its hands of determining who or what is our enemy and left it to the president to tell us who we will try to kill and subvert. Instead of checks and balances, instead of separation of powers, Congress decided to honor Ricky Nelson: “I will follow you/Follow you wherever you may go. . . .”
We see a similar pattern in one of the significant present controversies—the setting of tariffs. Tariffs have been a recurrent issue in this country’s history, but these were congressional battles because the Constitution gives Congress the authority, and no other body, the power to set tariffs. Section 8 of Article I states, “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises. . . .”
However, today we have the president unilaterally determining the existence and level of tariffs. This is because Congress passed a law that grants the president tariff-setting power when it is necessary for “national security.” Congress neither told the president how to determine when the national security was at stake nor set up a review mechanism for that determination. The president apparently was granted total discretion. Congress may have assumed that a president would only exercise this power in good faith, but it did nothing to insure good faith. Instead, simply by invoking national security, the president can take over the legislative tariff authority. If, as apparently was determined by the president, Canadian pine boards and two by fours are a national security concern, then anything that we might levy a tariff on must be a national security issue. Congress may have thought that it made a limited grant of power to the president by including the national security limitation, but in fact, the way President Trump has used the authority, Congress has ceded its legislative power over tariffs to the president. In essence, Congress amended the Constitution with the act.
The Constitution gives Congress the power of the purse. Section 9 of Article I states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . .” The border wall dispute raises the issue whether Congress has ceded this fundamental power to the president, too.
(concluded April 1)