Executive Risk

In the United States a great deal of the stability of the government is credited to what is commonly referred to as the balance of powers, the system in which each one of the three major functional divisions can put limits on the others. This is primarily mentioned in references to the federal level, but it is to some degree true of state and local governments as well. To briefly review, the legislative branch consists of the Senate and the House of Representatives and has the power of writing and approving laws. The executive branch, the president and the many federal agencies, can veto any of those laws but also has the job of implementing and enforcing them. The judicial branch, the federal court system headed by the Supreme Court, interprets the laws and can reject them outright or limit their applications. In all of these actions, especially in the writing, implementation, and interpretation phases, there are many nuances that can affect the ways in which the original intent of congress can be enhanced, frustrated, or negated.

In the most recent decades this tripartite balance has been distorted by a significant growth in the power of the executive branch, particularly in the powers of the presidency. A phenomenon that has become referred to as the “imperial presidency: has evolved. It has been decades in its formation, gradually expanding executive power despite a few significant reversals. The effectiveness of the president at some times has been temporarily enhanced by the popularity of charismatic individuals, especially during the administrations of Franklin Roosevelt and Dwight Eisenhower, but those instances are not part of this trend. What is involved are such developments as the increased presidential use of executive orders and signing statements, arbitrary implementations of executive agency powers, and the misuse of vague military-related resolutions passed by congress, especially those that relinquished the constitutional requirement that the legislative branch has the sole power of declaring war.

There have been occasional bursts of excessive power in the past. Looking at the more distant historical record in brief, federal executive punitive actions rose significantly during the first world war with the passage and zealous enforcement of the Sedition Act of 1918. More than ten thousand people were arrested, and many deported, in the raids carried out by the Department of Justice under Attorney General A. Mitchell Palmer. The most prominent victim of these activities was Eugene V. Debs, a labor leader who was arrested on June 30, 1918, two weeks after making a speech in which he opposed the military draft. Debs ran for president in 1920 as a third-party (Socialist) candidate and received almost a million votes despite being held in jail at the time. The Postmaster General also blocked thousands of periodicals from being distributed through the mail because they had published anti-war or similar articles. These actions disrupted the lives of millions of people and severely curtailed public discussion of many topics. Congress repealed the law at the end of 1920 along with several other wartime laws.

The next major increase in executive branch power occurred during World War II. This was the result of wartime unity and the extraordinary popularity of Franklin D. Roosevelt, voter support that helped Roosevelt gain large majorities in both houses of congress and (eventually) among the justices on the Supreme Court. Strong popular support for presidential actions carried through after that war into the Korean conflict and the cold war and the Truman and Eisenhower administrations. In these years the relatively high level of executive power was largely informal, less a matter of legal or bureaucratic overreach than of broad policy agreement between the president and congress and, importantly, growing levels of support among the public. Any such popularity, based as it was largely on current events or personal charisma, would be hard to maintain over time. The inevitable decline was accelerated in the post-Eisenhower decades by a series of adverse developments, beginning with public rejection of the anti-Communist excesses of Joseph McCarthy and his House Un-American Activities Committee and, later, the war in Vietnam and the Watergate scandal and 1974 Nixon resignation. By the mid-1970s public trust in government had not yet reached bottom, but was in steep decline. In 1973 congress passed the War Powers Act to severely limit a president’s ability to deploy military forces without specific approval. A year later they put new limits on presidential budgetary options through the Congressional Budget and Impoundment Control Act.

Efforts to restore presidential powers were perhaps inevitable, and they began with the election of Ronald Reagan in 1980. To begin with, Reagan filled the top levels of many federal agencies with leaders who actively opposed the intended missions of the organizations they headed. The first Secretary of the Interior was James G. Watt, a strong anti-environmentalist who promoted commercial exploitation of public lands by the oil, mining, and timber industries. Other oddly antagonistic agency appointments included the first Secretary of Labor, Raymond James Donovan, a businessman hostile to organized labor who significantly reduced the size of his agency and its regulatory powers, Secretary of Education Terrel Bell, who planned to dismantle the department of Education but was forced to recognize that any such action would require the passage of legislation, and Anne Gorsuch, who as lead administrator of the Environmental Protection Agency severely reduced employees and refused to enforce many EPA regulations. This kind of policy obstructionism became common in Republican administrations from 1980 on.

President Reagan also ignored the provisions of the War Powers Act when he initiated the 1983 invasion of Grenada, not bothering to consult with congressional leaders. Congress largely ignored this, and in 1986, by almost unanimous actions, passed the Goldwater-Nichols Act which unified and streamlined presidential control of the armed services. But the ultimate legislative abandonment of constitutional duty came in 2001 when, in another near-unanimous vote, congress passed the Authorization for Use of Military Force (AUMF), a vaguely worded resolution with no expiration date that allowed President George W. Bush to begin all-out wars in Afghanistan and Iraq. The same AUMF has provided subsequent presidents with the power to continue and even to expand military operations in the so-called “war on terror” without the official congressional declaration of war required by the constitution.

In the most recent five decades presidents have not only usurped the congressional power over military actions, they have also reduced the legislative branch’s role in writing and passing laws. This has been done through increasingly frequent and intrusive use of signing statements. In these the president signs a bill passed by congress, but attaches a written directive that specifies which parts of it that the executive branch actually intends to enforce. Such attachments are nothing new, and have been justified by the wording of Article II, Section 1 of the Constitution, which says the president “shall take Care that the Laws be faithfully executed.” At least, this is the odd interpretation of it favored by the Supreme Court in a 1986 decision in Bowshar v. Synar. The Department of Justice (DOJ) also has been consistent in advising presidents that they have the authority to refuse to enforce laws that they believe to be unconstitutional. The use of signing statements increased after a DOJ staff attorney, Samuel Alito (yes, the future Supreme Court justice), provided a memorandum promoting the use of “interpretive signing statements” to “increase the power of the Executive to shape the law.” In other words, the president would be attempting not only to ignore elements of newly passed laws, but to influence the passage of future laws. He would do this not by an outright veto, which would risk public censure and a congressional override vote, but by quietly refusing to perform his executive functions.

President Reagan was the first to use this new broad “interpretative” interpretation, and he included in some of his statements a phrase saying that congress cannot pass a law that undercuts the constitutional enforcement authority of the president, a view of executive authority that also clearly supported his obstructive appointments to leadership positions in federal agencies. George W. Bush repeated similar phrases as he signaled his intent to bypass three-quarters of the more than 1,000 provisions he objected to in 161 bills that he signed. He was not alone in his use of the strategy, but did set a record for written objections during his eight year administration. President Barack Obama opposed signing statements, but did use them 37 times, referring to 122 provisions of laws. After that, President Trump resumed the Bush extremes, objecting to 716 provisions of laws using 70 signing statements in only four years in office. As of now President Biden has reversed that, following his former boss’s example, only averaging three signing statements per year.

The expansion of executive power has therefore been variable and the election of President Biden in 2020 has signaled a partial reprieve. After all, the Trump presidency did provide some indicators of what could be possible if the leadership of the executive branch were not constrained by members who were devoted more to the rule of law than to the rule of one president. Scattered among the many instances of excessive Trump signing statements were other questionable actions, including appointments of unqualified cronies to high federal positions and repeated avoidance of government transparency rules. Trump frequently destroyed official documents and conducted business meetings without the record-keeping required by the Presidential Records Act. He also often held phone calls and text conversations on unsecured private devices. Worse yet, he had plans to replace federal civil service protections with a new system that would have allowed him to replace any “disloyal” employees, the so-called “deep state” with its bureaucratic inertia, at any time. That would have allowed him to create agencies completely subservient to his personal agenda. In short, he was well on the way to assuming semi-dictatorial powers. But such potential dangers ramped up to extreme levels in the wake of the 2020 presidential election.

After he lost the 2020 vote, President Trump reached out using the implied power of his office and tried to get local officials and the military to manipulate the vote results in many states. He tried to get his Secretary of Defense to send out National Guard troops to seize voting machines in hundreds of precincts across the country. Attorney General Bill Barr resigned on December 14, 2020 after he disagreed with Trump’s complaint that the election was fraudulent. Two weeks later Trump asked the acting AG Phil Rosen to “just say the election was corrupt” and to reject the results. When Rosen refused, Trump tried to replace him with a loyalist who would follow his instructions. That plan was blocked when almost all of the top DOJ officials threatened to resign en masse. On December 21st, in an oval office meeting, Trump discussed options for imposing martial law to allow him to stay in office. Finally, and infamously, Trump attempted to persuade Vice President Pence to reject the electoral college votes of seven states that had voted for candidate Biden, and at the same time his representatives were attempting to create and register alternate pro-Trump teams of electoral delegates to replace those that had been pledged to Biden. When those attempts failed, he did his best to organize and energize the insurrectionist mob that took over the United States Capitol building and temporarily halted the meeting that had been assembled to certify the results of the election. In short, Trump wanted to combine semi-dictatorial powers with an unending reign that no longer had to submit itself to voter approval.

In effect, there were only two things that allowed us to retain democracy in the United States after 2020. One was the clear expressed will of the voters in the 2020 election. The other was the stubborn insistence of many government officials to follow the rule of law, to reject the pressures applied by the president and his pro-Trump devotees, even in the face of death threats. To go on from here, to learn our lesson and avoid potential future disasters, we need to be aware of and oppose the steadily growing power of our “imperial presidency” and rebuild the balancing strength of legislative-branch powers. We also need to improve the rules and regulations that govern our elections and support the people who oversee them. After all, the ultimate power belongs with the will of the voting constituents.

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