Ethics & Public Policy Center

The 115th Congress Should Get to Work Restraining the Powers of the Presidency

Published in National Review Online on January 4, 2017

The single biggest problem facing the United States of America is one that gets discussed only rarely and  usually in shrill bipartisan tones. It is a problem that constitutional conservatives (but there are so few of us) understand, and a problem that progressives are starting to understand again: the disalignment of the various branches of government relative to what the Framers of the U.S. Constitution intended.

That the Supreme Court has overreached well beyond its original remit is beyond doubt, as is the incredible expansion of the federal government’s reach and powers over the past 20 years. But perhaps of more importance is the growth of the powers of the executive branch at the expense of the legislative branch.

It’s only worth very briefly going into why that has happened. Blame the media environment, which conspires to make the president the one office in which all issues move and have their being. Blame partisanship, whereby when one party holds the White House it expands its powers despite the other party’s howls of despair — until that party gains the White House again and forgets all about its good intentions. Blame, especially, Congress itself, whose members have a fondness for kicking hard choices to the executive branch.

The point is this: The Trump presidency provides a priceless opportunity to realign the executive and legislative branches, because at last we have a president who is feared not just by the opposite party, but also by a large section of his own party, which provides a political incentive for actions that rein in executive power.

Many conservatives opposed Trump, even when he was the nominee; many more have various degrees of dislike for him. Since the election, most of those conservatives — myself included — have decided to give him the benefit of the doubt, both out of respect for the outcome of the ballot box and what it says about our politics, and for the legitimate priorities of enough of our fellow citizens that an election was improbably swung. Trump should get his chance to set legislative priorities and to show he can govern.

But to give someone a chance is not the same thing as to give him an open-ended writ. It’s still true that Trump has been reckless with many of our political and constitutional norms (yes, so have Democrats, but that is no excuse), and many of the things he has said or proposed are cause for genuine concern.

So the 115th Congress should begin with a bipartisan effort to rein in the executive branch’s powers.

The best place to start is the so-called Article I Project, promoted by Utah senator Mike Lee, with especially this goal.

The project is still a work in progress, not a bill or a set of bills to pass, and it would be quixotic to think a major revamp of the way the branches work together could happen between now and the end of the month.

But there are three obvious places to start.

The first is the REINS Act, which would mandate that any regulation with an estimated cost of $100 million or more be put to an up or down vote by Congress. This would be a major win for restoring our constitutional balance, since one problem is that so much of the legislating that should be done by Congress is done by regulatory agencies, often because Congress demands it.

The second is a Lee-sponsored bill, the Separation of Powers Restoration Act of 2016. It does much less than its grandiose title would suggest, but, again, it would be an important step in the right direction, both symbolically and substantively. The bill seeks to kill what’s known in policy legalese as “Chevron deference,” named after a Supreme Court decision holding that when Congress does not address an issue directly in a statute, courts must defer to federal regulators’ interpretation of that law. As Lee argues, the doctrine of Chevron deference has created a “shadow Fourth Branch of government” that creates its own laws without public consent or checks and balances. The bill would replace the Chevron-deference standard with traditional judicial review of administrative actions.

And the third, regarding foreign policy, and potentially even more crucial given the character of Donald Trump, would be a reform of the post-Vietnam War Powers Act and the post-9/11 Authorization for Use of Military Force that has enabled presidents to use American military force unilaterally and almost without any check. Yes, we are at war against terrorist organizations, and yes the president as commander-in-chief should have a broad remit, but those war-making powers have been expanded way beyond what any of the Founders might have envisaged. Under President Obama, the United States has engaged in war in Libya and covert wars in Yemen and Syria, and other places, under a legal writ that was not meant to cover those places, those antagonists, those conflicts. If those wars were good ideas, then Congress should have voted for them.

None of these bills, not even all of them, would even begin to fix this imbalance, which is one that has a lot more to do with culture than with any legal stricture. But they would still be important symbols and important substantive steps forward. Let’s go.

— Pascal-Emmanuel Gobry is a fellow at the Ethics and Public Policy Center and a columnist at The Week.

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