The powers of the president were designed
to be sufficient to lead the nation, and insufficient to dominate the nation.
In the hands of a self-restrained leader such as the first president, George
Washington, the extent of powers of the chief executive were not a potential
problem.
In the 20th century, both books and
articles have decried the "imperial presidency." The thesis is that
recent presidents have successfully claimed more power than the Constitution
permits. Part of the increase is natural. The federal government
has radically grown especially since the Great Depression.
Since all major officials are appointed
by the president, subject to consent by the Senate, every growth in the
size of the federal government is also, necessarily, an increase in presidential
power. But the other two areas of growth of presidential power--foreign
relations and executive orders--are seemingly within the control of the
president himself. Things are not always what they seem.
The Constitution deliberately gives
only to Congress the power to declare war. In recent decades, presidents
have committed acts of war against various nations without any declaration
of war by Congress. Most presidents have, in taking such steps, referred
to the War Powers Act, passed in 1973.
Under that act, a president can send
troops into battle, or into situations where hostilities are imminent,
only for 60 days, absent a declaration of war or a specific mandate from
Congress. The president has a possibility of one, 30-day extension.
When passed, shortly after the Vietnam War, the act was hailed as a "restraint"
on the powers of the president to move troops anywhere in the world on
his own initiative, as commander in chief.
But in fact, the War Powers Act allows
the president of the United States to commit the nation’s military to acts
of war against other nations without any specific authority from Congress.
And once war is begun, chauvinism can cause the people to commit to continue
the war. This was exactly the evil that the framers sought to prevent
in the War Clause of the Constitution, an executive decision to begin a
war without any advance control by the people’s elected representatives.
No one has ever caused any court to
rule on the constitutionality of the War Powers Act in its 35 years of
existence. Yet any fair analysis leads to the conclusion that the
power to begin a war cannot be delegated from Congress to the president
because of a specific prohibition against that. This is a growth
of presidential power that Congress turned over voluntarily. It was
not taken by force by the president.
Executive orders are another matter.
Such orders were known by, and used by, presidents going back to George
Washington, but they have grown in subjects and intricacy in the 20th century.
Two very important Supreme Court cases arose from examination of specific
executive orders.
The first is Korematsu, during World
War II. President Roosevelt issued an EO requiring that all residents
of the United States west of the Mississippi who had at least one Japanese
grandparent, would be rounded up and put in detention camps. To its
gross discredit, the Supreme Court approved that order, over a sharp dissent.
Forty years later, Mr. Korematsu obtained a federal court order throwing
out his conviction as unconstitutionally obtained.
The second EO case was Youngstown Sheet
and Tube, during the Korean War. The steel workers went on strike.
President Truman issued an EO seizing the steel mills. The Supreme
Court struck down the order as beyond the president’s war powers.
(Congress promptly passed a law, doing what Truman had attempted.)
The use of EOs to create legal requirements
without congressional approval is a serious temptation for all presidents.
Paul Begala, advisor to President Clinton, put the temptation in clearest
possible language: "Stroke of a pen. Law of the land. Kinda
cool."
The power to write laws necessarily
involves the danger of losing the next election in one’s home district.
Only legislators at the state level, and members of Congress at the federal
level, are given that power. Presidents (and governors) are violating
the separation of powers when they seize that power.
Lastly, there is a cure for such usurpation.
Government can do nothing absent congressional authority to spend money
on that action. EOs, like acts of war, can be defunded, unless Congress
is unable or unwilling to muster the courage to act. Yes, presidents
have seized powers that they should not possess. But congresses have allowed
them to do that. |