If you read Article 1 of the Constitution of the United States (which speaks to the establishment of Congress) and Article 2 (which established the Office of the President) you will find that our country’s founders meant for most of the power to make the important decisions of the US government to rest in the hands of those elected to represent the people of the individual states. This is easily understood since they had recently fought a war to escape the grasp of an overeaching king. The fact that they chose to use the first article of the Constitution to establish Congress adds credence to their preference as to which branch of the new government should be entrusted with the most power.
Article 2 of the Constitution makes the President “Commander in Chief of the Army and Navy of the United States” and provides him/her with the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”. Also according to Article 2 he/she also has the power ”to make Treaties, provided two thirds of the Senators present concur.” He/she can also “nominate, and with the Advice and Consent of the Senate, appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States”. He/she “may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper”.
That’s it. That’s the sum total of the powers invested by the Constitution in the office of the President of the United States. The rest of the relatively short Article 2 speaks mostly to what the president “shall do” such as “give to the Congress Information of the State of the Union”, recommend actions for Congress’ consideration, commission officers, receive ambassadors, and “take Care that the Laws be faithfully executed”.
On the other hand, Article 1 gives Congress the remaining powers necessary to run the central government with those powers not addressed left to the individual states. Among the many powers granted to Congress is the ability to determine and collect taxes, and duties, regulate commerce with foreign nations and between states, and borrow money on the credit of the United States. Congress was also granted the power to regulate immigration and naturalization and to coin money. Among many other powers, Congress was also entrusted with the power to raise an army and navy, make rules for the use of the armed forces, and the sole power to declare war. Congress also is enabled “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
“Wait a second,” I can almost hear some of you saying, “Didn’t Trump get into a tariff war with China without even consulting Congress? Didn’t he sign executive orders which limited Muslims from entering the country? Didn’t he and other presidents order the military strikes in other countries without a congressional declaration of war? Didn’t Trump threaten to send in the US army to put down domestic protests? Didn’t he just sign executive orders which gave tax breaks to millions of people and provide additional federal unemployment payments not only without the consent of Congress, but despite of their stated objections?
There is no doubt that Trump has exceeded the limits of his executive powers time and time again, and only relented when stopped by the courts. But why did he have any power to exceed in areas that the Constitution specifically identifies as being strictly in the domain of Congress? The quick answer is that over many years Congress has passed legislation which gave away or shared much of its powers with the executive branch.
For instance, according to the Constitution only Congress has the power regulate commerce with other nations, which includes the initiation of tariffs on goods imported into the country. However, with adoption of the International Emergency Economic Powers Act of 1977 Congress gave the president this power to use in cases of “Unusual and extraordinary threats”. According to the official Congressional website, Congress.gov, this legislation, “Authorizes the President to regulate foreign economic transactions when the President declares a national emergency to deal with any unusual and extraordinary threat to the United States which has a foreign source.”
The legislation leaves it up to the president to determine the definition of a ““Unusual and extraordinary threat”. Some have compared this to parents making a rule that a child cannot eat cookies before dinner except in an unusual situation and then leaving it up to the child to decide what constitutes an unusual situation. It is this power that Trump used to enact tariffs on goods imported from China and the European Union without even consulting with Congress after declaring that some aspects of those imports imposed some sort of vague “threat to national security.” Was there a real threat to national security? Definitely not, but by law Trump didn’t have to defend that declaration of that threat to anyone.
This was but one example of Trump pushing the power of his office which was provided by Congress beyond its limits. Another power which Congress gave away over the years is the power to regulate immigration. Though the Constitution specifically gives only Congress this power through the so called “naturalization” clause of the first Article, a long series of intricate immigration legislation enacted over the years transferred much of this power to the executive branch. Thus Trump had the power to enact travel bans as long as they weren’t considered discriminatory. After the ban was revised several times, in a 5-4 decision the Supreme Court ruled that Trump’s action was not discriminatory.
I could go on and on, but you get the gist. In every case where every president, and especially Trump, has exceeded the limit of the authority of the president as defined the Constitution, and the courts did not strike his actions down, it was because sometime in the past Congress has transferred some of its constitutionally mandated power to the president. In some rare cases a president has taken action on his own setting a precedent which was followed by other presidents through the years because Congress never objected. The net result of Congressional action and inaction throughout our history was that many powers were transferred to the presidency which the Constitution originally reserved for Congress alone.
Now at the time that each piece of legislation transferring power from Congress to the executive branch was passed, there was probably a good reason for doing so. For instance, let’s say that a company in a foreign country starts dumping a critical product on our market at prices well below their cost of manufacture threatening to drive American companies out of business. We would want our government to quickly do something about that situation and perhaps getting legislation to counter the move approved by both houses of congress would take too long. On the other hand the president could act unilaterally in short order. However, in each case where Congress shared or transferred its power to the White House, it made an assumption that the president would act in good faith by using that power only in the best interests of the country and would not abuse that ability.
Time and time again, Congress made that assumption based on another assumption, that the people of the United States would never elevate to the office of the presidency a man or woman of such poor character that he/she could not be trusted to faithfully execute his/her office in a forthright manner. The election of Donald J. Trump proved that Congress made grievous errors time and time again over the years in making those assumptions. In their defense, before it actually happened, I suspect that most of us never imagined that a man like Trump could possibly be elected to the highest office in this land. Now we all have to live with the fact that Trump is not only abusing those transferred powers, often for his own selfish political purposes, but he is also intentionally exceeding their scope and daring anyone to stop him.
Now that they have seen the error of their ways, members of Congress and the American people must come to the realization that we cannot entrust too much power in the hands of one man after showing that we are fully capable of electing someone who would be king rather than president. Congress must either take back the power that is constitutionally theirs and/or they must install limits on the power already transferred to the executive branch to ensure that it is not abused.
For instance, we cannot continue to allow a president to ultimately have both the ability to determine when an emergency should be declared, and the ability to also exercise the power that the declaration of an emergency provides him/her. Perhaps in such a case, the president should be required to have both Houses of Congress condone his/her actions within a specific period of time or those actions become null and void. In other cases, perhaps the president’s power to act unilaterally should be withdrawn by Congress entirely.
One thing is sure, in the future we cannot allow another narcissistic autocrat who would be king to have the power to again try to destroy our democracy.
Cajun 8/10/2020