Critics of President Trump rightly charge him with violating the Constitution’s limits on presidential powers. Yet as University of Virginia Law School Professor Saikrishna Prakash convincingly shows in his book The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers, published this spring by Harvard University Press, “every modern president since Jimmy Carter has been unable to resist the temptation to expand presidential power.” As Prakash points out, many presidents before Carter proved unable to resist this temptation as well. The book, however, is no defense of Trump. Rather, it shows that in order to uphold the Constitution, the citizenry as a whole “will have to condemn presidential acts that rest on power grabs, even when those acts advance policies we fervently admire.” We should do so because such power-grabs befoul our government.
Prakash shows that the Constitution casts presidents not as independent policy-creators but as “faithful executives” implementing policies that legislators approve. As commander in chief, the president can start a war, whether declared or not, only if Congress approves. As Prakash writes, “Absolutely no one at the Founding — not one person — said that the Constitution gave presidents the power to decide to wage war.” As diplomat in chief, the president can make deals with other countries only if two-thirds of the senators approve. As law enforcer in chief, the president can enforce rules of private conduct only if the “lawmakers” in Congress approve such laws.
Even absent such approvals, however, modern presidents nonetheless go to war, make deals with other countries, promulgate rules of private conduct, and take many other significant actions without congressional approval.
Early presidents generally stuck to their constitutional role, but their modern successors grossly exceeded it. The reasons for this constitutional excess, as the book explains in detail, include “a love of power,” “a hunger for fame,” and “an impulse to keep promises.” In the nation’s early decades, “candidates made no promises” but began increasingly to do so in the latter years of the nineteenth century. The impulse to grab greater presidential power in order to fulfill such promises sends what Prakash calls “a strong signal that the president is trying hard to satisfy the base.”
The book also explains how presidents get away with violating the Constitution. As the book’s title emphasizes, many jurists believe in a “living” Constitution — that is, one whose meaning changes with the times. Whatever merits this doctrine exhibits when applied to civil rights or the powers of Congress, it has meant that presidents can exceed the powers that the Constitution grants them by claiming (often on dubious grounds) that previous presidents engaged in similar conduct. Besides, as Prakash explains, “The courts… are reactive and slow and, acting alone, are no match for the energetic executive.”
Congress, too, has failed to stop presidents from grabbing power. Since the presidency is the only office elected by the nation at large, “presidents alone are seen as representing the entire people of the United States,” according to Prakash.
Modern presidents also are de facto leaders of their party. In this capacity, they can stop the party from funding reelection campaigns of legislators who object to the power grabs, and even prompt primary challenges to those legislators. Moreover, politicians and voters tend to go along with presidential excesses that are used to deliver policies they like.
The transfer of policymaking from Congress to the president harms the public. The Framers assigned policymaking responsibility to the legislative process for a vital purpose: to soothe the factional feuds that had doomed every previous democracy and have flared in recent decades in our country. Under the Constitution, legislators are supposed to make the key policy choices. They also should bear responsibility for those choices in future elections because they must reveal how they voted on controversial matters.
Such accountability was intended to facilitate open debate and educate both legislators and their constituents about the pros and cons of a proposed policy. In so doing, according to the logic of the Framers, such debate would impose upon incumbents an undeniable responsibility for the consequences of their votes. As a result, compromise often would be necessary.
The drama of this debate fascinated voters in the early years of the American republic. According to historian Daniel Walker Howe, “foreign visitors marveled at the extent of public awareness even in remote and provincial areas.” Now, however, Congress frequently avoids accountability for hard policy choices by shifting them to the executive branch — usually to unelected administrators, and by extension to the president at whose pleasure they generally serve.
Over the last half century, Congress and presidents have also devised new power-shifting innovations that let elected officials take credit for popular consequences while evading blame for unpopular ones. For example, the Clean Air Act of 1970 requires the Environmental Protection Agency to issue rules of private conduct that “protect health.” In practice, this means that elected officials can take credit for protecting health even while the EPA takes the blame for the regulatory burdens imposed as well as for those occasions when its policies fail to completely protect public health. Today, as a result, some legislators can say that they are against pollution killing children, and other legislators can say that they are against regulation killing jobs, but none are responsible for the hard choices.
Instead of education, we get sound bites. The upshot is ignorant voters, more polarization, and policies that change radically from president to president.
Worse still, the credit-claiming and blame-shifting encourage elected officials to shape statutes to maximize credit and minimize blame for themselves, rather than to maximize benefit and minimize burdens for their constituents. Professor Richard Stewart of the NYU School of Law (former chair of the Environmental Defense Fund), his colleague Professor Katrina Wyman, and I have shown this phenomenon at work in the context of environmental law. Voters are, in sum, tricked into supporting politicians who serve themselves rather than their constituents.
Gridlock is no excuse for Congress shirking its responsibility. Its members have shown that when they want to force themselves to confront hard choices they can do so, as exemplified by the fast-track legislative processes they have adopted to deal expeditiously with military base closings and trade deals. Fast-track can be used to force Congress to confront hard choices on regulation and war, as Howard Dean and I urged in a 2017 op ed. Morton Halperin of the Open Society Foundations and Soren Dayton of Protect Democracy have explored fast-track legislative processes as an alternative to getting rid of the filibuster. Gridlock is an insanity useful to the inmates of Congress but harmful to us.
Prakash proposes a baker’s-dozen of steps that Congress should take to rein in the self-aggrandizing presidency, including a fast-track process that would force Congress to vote on major regulations. His proposals are sensible. The challenge is how to get the responsibility-shirking Congress to adopt them.
President Harry Truman once stated that “I sit and shiver… at the thought of what could happen with some demagogue in this office I hold.” To this, Praskash responds, “And now, so do the rest of us.”
David Schoenbrod is Trustee Professor at New York Law School, senior fellow at the Niskanen Center, and author of DC Confidential: Inside the Five Tricks of Washington.