Understanding Presidential Powers

 … and countering them

UNILATERAL POWER
Last of Four

In previous posts we've examined presidential power in declaring a national emergency (here and here), which is particularly relevant after President Trump's declaration yesterday (February 16).  We've also looked briefly at presidential powers under other laws (here), including the top-secret “Presidential Emergency Action Documents” (PEADS). 

As I mentioned in my first post in this series, it’s important to remember that some degree of unilateral presidential power is essential to the functioning of government.  In the event of a true emergency, such as a natural disaster, it can be essential that the government respond immediately without having to wait for congressional debates or other delay.  In addition, many of the unilateral powers were necessary at the time they were put into effect but have remained active because the Administration has never allowed them to elapse.  (Before the National Emergencies Act of 1976, there were several hundred emergency provisions still on the books, many of them confined to a particular historical emergency.)  Even since the National Emergencies Act (intended to limit the president's use of unilateral power), there have been 58 national emergencies declared, 31 of which are still in effect.  As in Trump's present declaration in order to build the Mexican border wall, most of these national emergencies have been declared in order to authorize economic action, usually, however, sanctions against other countries.  Nevertheless, there are provisions in many of these declarations that allow much broader power, for instance, when innocent Muslim charitable organizations and individual Muslims themselves were targeted and arrested after 9/11.

Under the Constitution's Article I, only Congress has the power to declare war.  Article II, however, makes the president commander-in-chief.  Taken together these two provisions require cooperation between Congress and the president.  Unfortunately, presidents have used the commander-in-chief provisions to provide rationales for "military actions" that were euphemisms for the Korean War, the Vietnam War, Operation Desert Storm, the Afghanistan War of 2001 and the Iraq War of 2002.  These presidential actions have been of dubious constitutionality, but Congress has never challenged them.  For all practical purposes, then, presidents now have the power to declare war.

Furthermore, presidents have used "executive orders" to take a wide variety of actions that would usually (and properly) be considered prerogatives of Congress.  This is a far too complicated an area of law for my expertise, but it is an important source of presidential power.  President Obama, for instance, used executive orders to create many provisions of environmental "law." President Eisenhower sent troops into Little Rock, Arkansas, to desegregate the schools.  President Truman desegregated the military.  President Roosevelt interned people of Japanese descent during WWII, and so on.

These almost unlimited presidential powers—some never used, some infrequently, and others seemingly all the time—are always available to presidents and are, as our experience with President Trump reminds us, stark threats to our democracy. 

Almost all European democracies explicitly limit the power of the chief executive by limiting the length of time that the power is in effect, by specifying carefully what the executive order can do, by granting the legislature important power over the chief executive, and by creating other legislation.

Presidential Power Granted by the Constitution
The American Constitution deliberately limits presidential power.  Almost every presidential power is subject to congressional override, even without impeachment.  The only exceptions are the president's

• function as commander-in-chief,
• control over formation and communication of foreign policy and
• control of the diplomatic corps.

Theoretically, then, Congress could limit a president's power almost completely (although the president's control over foreign policy has recently created much havoc).  Any action the president takes under the National Emergency Act, for instance, could be reversed by a 2/3 vote of Congress.  The problem is that Congress virtually never uses this authority.  (Congress's recent vote to reestablish sanctions on Russia is a rare exception.)

The important point is that in theory there are actually few unilateral presidential powers.  Virtually all the dangerous powers we've been discussing in the last three posts could be countermanded by Congress.

Congress and Unilateral Presidential Powers

Theory, of course, is different from practice.  The current polarization of our politics means that few important decisions of any controversy can pass through Congress.  Severe partisanship isn’t new, however, and even the impeachment of President Nixon, often lauded as a prime example of bipartisanship, was nothing of the sort.  For many months preceding the discovery of the undeniable evidence of "high crimes and misdemeanors," Republicans were castigating the investigation as a "witch hunt" and accusing the Washington Post of "mudslinging."  Even after the discovery of the "smoking gun," reports the New York Times,

[Vice-President] Ford said he found nothing wrong with the president’s practices.  Republican Senator John Tower of Texas later warned Congress not to get caught up in “the hysteria of Watergate.”

President Nixon's ultimate resignation was the result of an investigation that pummeled both him and the Republican Party with evidence,

Reversing the Frightening Unilateral Powers of the Presidency

We will not easily or automatically reverse the dangerous and frightening accumulation of presidential power that threatens our democracy.  Such reversal ultimately depends completely on congressional action, and in our current political structure such action cannot happen.  It will not be done by one popular movement or one simple legislative action, either.  It will take long-term, concerted grass-roots political pressure and resolve of a kind the American populace—with the possible exception of the civil rights movement—hasn’t mustered in decades.

But if we the electorate fail to reign in unilateral, abusive presidential power, we have even now relinquished our democracy.  We have lost already. 

Those of us committed to democracy and to restoring the proper balance in American government must pledge ourselves to a determined effort over a long haul.  We must confront each presidential abuse and begin a movement through the slow process of educating the electorate.  It will not be a short or simple process.  It will take the long-term perseverance and courage that characterizes any important movement for justice.

It has happened before, however!  In 1978, the bipartisan Church Committee, led by Senator Frank Church, held hearings that eventually resulted in the Foreign Intelligence Surveillance Court (FISA), significantly limiting the power of the executive branch of government in its surveillance activities.

Using the Church Committee as example and precedent, Congress could repeal the laws that are obsolete or unnecessary.  It could revise others to include stronger protections against presidential abuse.  It could issue new criteria for emergency declarations, require a connection between the nature of the emergency and the powers invoked, and prohibit indefinite emergencies.  It could limit the powers set forth in PEADS.

That will not happen without our deep commitment to democracy.  We are not helpless!