The case for a weaker presidency

Contrary to what many people may think, the best thing Joe Biden can do as the next president is weaken his office. As an institution, the Office of the President has become too powerful, and it is time to reset the power of the presidency.        

Biden will come to office on Jan. 20, 2021, issuing a wave of executive orders that will overturn many of those issued by Donald Trump in the closing days of his presidency and during his entire term of office. Governing by executive order has become a new norm. There have been nearly 14,000 executive orders issued since 1789.  In recent history, Bill Clinton, George Bush  and Barack Obama respectively issued 254, 291 and 276 executive orders, each over two terms.  Donald Trump has issued 195 so far in one term, more may be coming.      

The Founding Fathers never intended for a president to be as powerful as he has become. The Constitution was drafted with the Framers still fearing the abuses of power by King George III when America was a colony, and it was written within a more than 100-years-long conflict between the British monarchy and its parliament’s effort to contain the former’s authority. In Federalist Paper 48, James Madison refers to the “superiority” of Congress over the other branches, proof being the expansive list of powers given to it compared to the president, the latter of which he described as “restrained” in its authority.   

Nonetheless, presidents do have constitutional powers, including that to issue executive orders.      

Presidents have inherent power within Article II of the Constitution to issue some executive orders. These executive orders are policy but not law per se, and presidents can issue them at will and overturn them at will.       

The other type of executive order is premised upon Congress delegating authority to the president via the law. This delegated power gives presidents and the executive branch the authority to issue rules or regulations — often to fill in the gaps in laws — or act in emergencies.  Executive orders issued pursuant to delegated power carry the force of law and the Administrative Procedure Act generally has rules regarding when and how they can be issued and how they can be repealed. Executive orders regarding the environment, energy, food or health, banking or the workplace often fit into this category.

Over time, and especially since the New Deal, Congress has given presidents more delegated authority. This delegation, along with Congress passing the buck on tough political choices, or because of expediency — and more recently because of partisan stalemates — has produced a presidency far exceeding what the Framers intended when they saw the legislative branch as the dominant one. Abuse of presidential authority came to a head under Richard Nixon, when Congress passed several laws, including the National Emergencies Act, the War Powers Act, and the Congressional Budget and Impoundment Control Act of 1974. These and other laws were meant to combat what historian Arthur Schlesinger Jr. described as “the imperial presidency.”

Presidents have learned how to exploit the limits or loopholes in these laws. Congress, especially post 9/11, has delegated even more discretion to the president, creating a new imperial presidency perhaps even more powerful than before. Trump exploited this delegated power when he issued his Muslim travel ban, the ordering of the border wall, and in efforts to scale back environmental legislation. While the courts have trimmed back many of these actions, and the Trump administration has one of the worst records ever when it comes to losing in court, the current Supreme Court often has looked at the legislative basis of what the president did and upheld the delegated power.

Dating to Alexander Hamilton at the 1787 Constitutional Convention, and in the Federalist Papers, there have been many who wanted a strong president. Democrats and Republicans alike  admire their presidents who exhibited decisive leadership and willingness to take action if Congress does not. Joe Biden theoretically will inherit a powerful presidency, yet his divided and fragile political coalition also will suggest one that is weak in many respects and there will be a powerful temptation to rule by executive order.   

It is time for Biden and, especially, Congress to rethink the scope of delegated power given to the president. Better statutory guidance for delegated authority, and perhaps even less delegation to the president, are reforms that would be more consistent with the checks-and-balances mode of governance that our constitutional Framers intended and which recent presidents, including Donald Trump, have abused.

David Schultz is a professor of political science at Hamline University in St. Paul, Minn. Follow him on Twitter @ProfDSchultz.