Democracy Dies in Darkness

In Theory | Opinion

Is the modern president too powerful?: A primer

January 11, 2016 at 10:28 AM

The five living presidents of the United States pose in the Oval Office in 2009. (J. Scott Applewhite/Associated Press)

After Republicans took control of the Senate in 2011, President Obama said he would "look every single day to figure out what we can do without Congress." Over the past couple of years, he's made good on that promise extending the Affordable Care Act's employer mandate, raising the minimum wage for federal contractors, shielding up to 5 million immigrants from deportation and, most recently, expanding background checks for gun sales.

During each of these episodes, the president met with a round of critics who decried his efforts to subvert Congress, reigniting a familiar debate: Has the president and the use of executive action become too powerful?

Executive action which includes any of the president's orders, proclamations or memorandums is a broad term referring to the president's ability to direct policy without legislation. Last week, House Speaker Paul Ryan called Obama's executive action on gun control "a form of intimidation that undermines liberty."

Of course, this kind of rhetoric is nothing new to American democracy. Congress and presidents have always squabbled over perceived infringements of their authority. Democrats accused Abraham Lincoln of "executive usurpation" after he suspended habeas corpus in 1862. Andrew Johnson, on the other hand, regarded Republicans in Congress as "factious, domineering, tyrannical" men, and fought bitterly with the "common gang of cormorants and bloodsuckers" as it attempted to control whom in his staff he could fire.

But in the past century, modern presidents have amassed extraordinary new powers to carry out the law, mostly because the federal government has grown rapidly, especially since Franklin D. Roosevelt's New Deal. Bigger government means more regulation, larger agencies and a deeper bureaucracy that the president can use to develop policy.

The Constitution says little on the issue of executive power and in fact, the phrase "executive action" does not appear anywhere in the document. Article II, however, does say that the president "shall take care that the laws be faithfully executed," leaving a fair amount of wiggle room as to how laws should be faithfully executed. And as is often said about the law, ambiguity is power.

Because of that loose framing, presidents may have a huge leg up in the balance of powers. Many of the laws governing the modern executive bureaucracy were designed to be vague so that the White House had greater power to fight unforeseen battles down the road.

Yet presidents still have real limitations. They can go only so far in how they interpret a law, and any time they decide to "go it alone" they risk being dragged into lengthy court battles. In addition, executive orders are easy to reverse when the White House changes party banners.

Still, this opens a debate: The president's powers to carry out an agenda may have increased, but what implications does that have for American democracy? Has the presidency grown too powerful? Are there enough checks and balances in our system to make sure that we can rein in an executive who goes too far?

Over the next few days, we'll hear from:

Adrian Vermeule, professor of law at Harvard University,

Brianne Gorod. appellate counsel at the Constitutional Accountability Center,

Elizabeth Slattery, legal fellow at the Heritage Foundation,

John Carey, government professor at Dartmouth College,

John Yoo, professor of law at University of California, Berkeley.

Robert Gebelhoff is an assistant editor for The Post's Opinions section. He has been with The Post since 2015 and his work appears on the PostPartisan blog.

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