Watching the Trump administration stiff-arm constitutional checks and balances left and right, and stonewalling all congressional subpoena and other oversight requests connected to the Mueller probe, this might be a good time to remind Americans that the encroaching executive tyranny we feel has been building for some time, and that it is pretty much our fault.
Although historian Arthur Schlesinger, Jr. popularized the concept of the “imperial presidency” during the presidency of Richard Nixon, the power of the executive had been expanding mightily since the Cold War presidency of Harry Truman. However, in the wake of the 9/11 attacks, presidents have further augmented their extra-constitutional power to such an extent that we might now classify the presidency as having gone rogue.
The citizenry is now faced with the consequences of having allowed, over time, the inflation of the president’s power, vis-à-vis the other governmental branches, way beyond what the Constitution’s framers had originally intended.
The Founders created a fairly independent executive and judiciary as checks on what they thought would be the dominant branch of government—the Congress. Compared to the executive, the Congress’s enumerated powers in Article I are as plentiful as the president’s Article II powers are sparse. The president was only supposed to implement the congressional will both domestically and abroad. At home, the executive was merely to execute and enforce legislatively passed laws; in foreign policy, the president could receive foreign diplomats and was to be the commander-in-chief of forces on the battlefield after Congress had initiated war.
The president also shared with Congress the legislative (a limited veto that could be overridden by Congress), appointive (appointing government officials who needed Senate confirmation), and treaty-making powers (the executive’s negotiated treaties needed a supermajority in Congress to be approved).
However, under the rogue presidency, executives claim that their “inherent power” allows them to ignore or violate congressional-passed laws during “emergencies” (as President George W. Bush did after the 9/11 attacks and President Donald Trump did to build his border wall after Congress refused funding), effectively legislating by executive order when “Congress fails to act” (as President Barack Obama did on immigration and healthcare insurance).
This “inherent power” has also justified making agreements with foreign governments, most of which are not designated as treaties (for example, Obama’s nuclear agreement with Iran), which require supermajority approval in Congress (some agreements don’t get legislative approval at all and may even be secret).
Perhaps most importantly, presidents now claim the inherent authority as commander-in-chief to take the nation into war without any congressional approval. The framers—fearing that presidents, like the European kings of their day, would use unilaterally-induced war to create tyranny at home—would roll over in their graves at the absence of legislative approval for such a vital national decision.
How did the Founders’ system of checks and balances break down? Despite some temporary bursts of extra-constitutional presidential activity from the founding to the turn of the 20th century, the presidency was basically the same limited office the framers had envisioned more than a hundred years later. Although during the 19th century there were a few strong presidents—Thomas Jefferson, Andrew Jackson, and especially Abraham Lincoln, who seized almost dictatorial powers during the massive Civil War—the vast majority of executives during that time properly deferred to Congress.
What changed this dynamic during the 20th century? There were more frequent, significant wars, allowing presidents to usurp powers from legislatures—particularly the four decade-long Cold War at the end of the 20th century.
Prior to World War I, Congress explicitly forbade President Woodrow Wilson from taking the very provocative step of arming U.S. merchant ships; he did it anyway. Prior to World War II, the American public, with the meatgrinder of World War I in mind, was reluctant to get involved in a second major European conflagration. President Franklin D. Roosevelt was anxious to goad the Nazis into attacking U.S. maritime forces—many months before the Japanese provoked United States entry into the conflict with the attack on Pearl Harbor—to flip American public opinion in favor of war. Without congressional approval, he secretly and unconstitutionally ordered U.S. naval forces to aid the British Navy in finding and killing German submarines to provoke a German counter-response that he could use for propaganda purposes.
Roosevelt also unilaterally and unconstitutionally traded U.S. Navy warships to Britain in exchange for establishing U.S. military bases on British colonies in the Caribbean. For even justifiable wars, Congress’s ability to decide whether the nation will be at war or at peace, which the Constitution gave to Congress with the power to declare war, is eroded when presidents take prior actions that can precipitate war, or render it more likely, before the legislative body has a chance to decide such a vital matter.
The “imperial presidency” first arose after World War II during the Cold War, when President Harry Truman completely dispensed with Congress’s war power by simply sending U.S. forces to the Korean War without any prior congressional approval. This was a seminal moment because from then on, presidents regarded getting legislative approval for major wars as a courtesy rather than a constitutional requirement. And for more limited military actions—which the “letters of marque and reprisal” provision of the Constitution implies that Congress should regulate and did heavily during America’s first conflict, the undeclared naval Quasi-War with France—the executive began to run wild, without perceiving any obligation to obtain legislative sanction.
Also, during the Truman administration, the National Security Act of 1947 significantly augmented the institutional powers of the presidency by creating the National Security Council in the White House, consolidating presidential control over the armed forces by establishing the Department of Defense, and creating the CIA, which would be used by presidents to conduct wars without the knowledge of Congress or the American people.
During the Korean War, Truman attempted to expand his commander-in-chief status on the battlefield into being commander-in-chief of the country. He attempted to use his “inherent power” to nationalize the nation’s steel industry for the war effort in contravention of a congressionally passed law. In the Youngstown Steel case, the Supreme Court rejected this gambit. Such “inherent power” is nowhere found in the Constitution and cuts against its entire concept of limiting government by strictly enumerating all powers of the federal government.
Although the Civil War, World War I, and World War II were expansive wars and led to congressional acquiescence of large transfers of power to the executive branch, U.S. involvement in these wars lasted only a few years and many of the transferred powers lapsed after the war ended. Such was not the case during the Cold War. Although legislative pushback came after the Watergate scandal and President Richard Nixon’s abuse of the broad authority of the congressional resolution approving the war in Southeast Asia to escalate the conflict into Cambodia and Laos, Congress’s effort to claw back some of the power through legislation limiting executive power largely failed.
Another long war, the war on terror after the 9/11 attacks, also led George W. Bush to claim, like Truman, that he had the right, as commander-in-chief, to override congressionally passed laws during an emergency. Bush ordered terrorism suspects tortured in violation of U.S.-signed international treaties and U.S. law. Unlike other presidents, whose abuse of the Constitution’s checks and balances occurred in pursuit of some other policy goal, one of the main objectives of the Bush administration was a drastic expansion of presidential power. He also unconstitutionally spied on Americans without search warrants, detained terrorism suspects indefinitely without trial without allowing them to challenge their detention, and eventually tried a few of them in unconstitutional kangaroo military tribunals.
Although Obama eliminated torture, he continued most of Bush’s other unconstitutional policies, including killing suspected terrorists overseas without trials in congressionally-unapproved wars. Also with the exception of torture, Trump has continued these rogue practices.
Because Congress has most of the enumerated powers of the federal government in the Constitution, such episodes of executive overreach are only contingent on legislative acquiescence. Perhaps the erratic circus of the Trump presidency will eventually motivate Congress to push back even more forcefully than in the post-Watergate era, though this will require courage and institutional reforms.
To the extent possible, congressional rules and practices in both chambers should be changed to further centralize power in the leadership. This shift and others would help to better align individual members’ incentives with Congress’s institutional incentives to defend its constitutional powers. There is no better time than now.
Ivan Eland is a senior fellow at the Independent Institute and author of the new book, War and the Rogue Presidency: Restoring the Republic After Congressional Failure (2019). He is also the author of Eleven Presidents: Promises vs. Results in Achieving Limited Government (2017).