Presidential Power And The Rule Of Law
– By Howard Sierer –
The dramatic expansion of our federal government over the last 60 years has given presidents extraordinary power over American economic and social life. We all have come to expect the federal government to address every problem, great or small, with the result that presidents have become lawmakers.
In 1964, Pres. Lyndon Johnson’s Great Society launched our federal government into a headlong effort to remake our society in an unprecedented number and variety of ways, most of which previously had been outside the scope of government. The list of new initiatives was stunning for both its number and breadth. Each of these broad categories – the war on poverty, Medicare/Medicaid, Head Start, urban renewal, arts and humanities support, and environmental initiatives – in turn resulted in dozens of new programs and agencies to administer them.
Per the Constitution, Congress legislates and the Executive Branch implements. Amidst Johnson’s flurry of new programs, Congress was unable to specify in any detail the scope and responsibilities of the agencies it created. Instead, the president and the executive branch were given broad latitude to define and implement these programs. The result was a tsunami of agency regulations with which citizens and businesses were required to comply.
Over the years, federal program after program has been added to the mix. The number of federal departments and agencies has grown apace and the number of regulations issued annually is staggering. As an inevitable result, the presidency has become much more powerful than the Constitution envisioned it to be. The president has become in effect de facto lawmaker-in-chief, superseding Congress in many arenas of national life.
Presidential lawmaking hasn’t been a seizure of power like a military coup. It might be described as the opposite—legislative abdication. As Congress chose to address every perceived problem that came along, the capacities of a committee-laden, conflict-riven legislature were overwhelmed. The easy way out was to delegate implementation to executive agencies where specialized expertise resides and decision-making is relatively streamlined.
The president continues to be Constitutionally constrained in matters like taxes and appropriations and collaborates with Congress in many cases. But given the wide scope allowed by agency rulemaking, he frequently makes policy on his own and unsurprisingly often employs these powers for outright partisan purposes. We have morphed into this governing form through 50 years of gradual political evolution, as one incremental step led to another with little appreciation of where we were going.
Presidential power this broad is intoxicating for the army of agency heads and bureaucrats who see opportunities to reshape the country in their preferred directions. Always ready to broaden the scope of their authority, they scour prior Congressional legislation, finding obscure provisions that can be reinterpreted to allow the president and federal agencies to make sweeping changes far beyond the scope Congress had in mind.
Executive orders are the most obvious and broadest form of presidential lawmaking. All presidents starting with Pres. Clinton have issued such orders, intending to make major societal changes without Congressional legislation. The following orders were subsequently found to be illegal or unconstitutional: Clinton regulated tobacco products, Bush bailed out Chrysler and GM, Obama implemented a Clean Power Plan and “deferred action” on certain illegal immigrants, and Trump banned rifle bump stocks.
Pres. Biden’s executive orders outdid them all. He rescinded Trump’s successful illegal immigration control actions. He imposed COVID vaccine mandates and pandemic rent controls. He made multiple attempts to forgive billions of dollars of college student loans. Each of these actions was subsequently determined to be unconstitutional or illegal by the courts, but undeterred, Biden refashioned the legal rationale, tried again and was slapped down each time.
Biden’s extension of the Covid eviction moratorium was a stunning example of a lawless president. He said he had been advised that the action was unconstitutional, but at least he could keep delinquent renters in their homes until the courts so ruled, which they did. Meanwhile landlords were unconstitutionally deprived of their lawful rents.
Biden issued Executive Order 13985, implementing an unconstitutional “whole-of-government equity agenda” installing Diversity, Equity and Inclusion (DEI) principles across the board. He also signed executive orders supporting “gender-affirming” medical interventions on minors, including puberty blockers, cross-sex hormones and surgeries.
Our only safeguard against increasingly authoritarian presidential actions is the judiciary. Thankfully, the Supreme Court armed federal judges with a powerful precedent with its 2022 “major questions doctrine” which says that courts must not interpret statutes as delegating major questions to agencies unless Congress clearly says so.
Examples of federal agency overreach subsequently termed “major questions” by the courts: the EPA cannot shutter all coal fired power plants, the FDA’s authority over drugs does not extend to tobacco products, and the EPA cannot declare that carbon dioxide is a pollutant. Congressional legislation would be needed in each of these and similar cases.
Another drawback to presidential lawmaking: federal government policy is whiplashed with each change of administration, compromising long term planning for private business and for state and local government. For example, the 2024 election has determined whether to leave the southern border open, whether to restructure the power industry and phase out gas stoves and internal-combustion automobiles, and whether to require schools to let boys who feel they are girls compete in girls’ sports. Major questions of national public policy like these should be determined by Congress, not the executive branch of government.
The root cause of presidential lawmaking is that we as citizens have come to expect our federal government to remedy every perceived wrong, to address every perceived problem. Ask yourself why federal grant funds are being used to construct the Washington County Water Conservation District’s new water treatment facility. Why are federal funds used for urban renewal or for local conservation efforts and for literally thousands of other local activities across the country? Why does the federal Bureau of Land Management control vast tracts of the American west?
Instead, state and local governments should address issues in their jurisdictions and fund solutions as needed. While this will come as a shock to most Americans, that is exactly what our Constitution’s 10th Amendment states and how our federal form of government should operate: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Only limiting what we ask our federal government to do will allow us to limit presidential lawmaking. And while we’re at it, we’d find it much easier to balance the federal budget.
