Jurisprudence

Only Congress Can Stop the Imperial Presidency

House Speaker Nancy Pelosi departs the U.S. Capitol on Wednesday.
House Speaker Nancy Pelosi departs the U.S. Capitol on Wednesday.
Win McNamee/Getty Images

Early in the Clinton administration, I served on the National Security Council staff when former Rep. Howard Berman, a California Democrat, called me one day to tell me that the White House planned to oppose a bill that would exempt books and other media from trade embargoes.

Berman was incredulous, given that I had helped him draft this bill. I went to see President Bill Clinton’s deputy national security adviser, Sandy Berger. He assured me that the president supported the idea in principle, but the administration could not support the bill because the White House had to resist any legislation that diminished presidential power.

After some convincing, the administration decided against taking a position on the language in the bill. The law was passed and remains on the books. But the message was clear: White House advisers have come to feel that presidents are obligated to resist any diminution in their power even if it means stepping on the constitutional roles granted to Congress. It is time for Congress to reclaim some of its rightful authority, and voters should demand presidential candidates commit to rebalancing the power between branches.

For too long, Congress has ceded power to the presidency in a way that the drafters of the Constitution never would have imagined. The Founding Fathers were all too aware of democracy’s fragility, and so they were determined to create a government whose branches, working together, would command the resources and the authority necessary to promote prosperity and liberty. They were equally determined to divide authority among the branches to assure the survival of democracy from tyranny at home and the demands of foreign wars.

So, they vested the most critical powers in the Congress and provided for an independent judiciary. Only Congress can declare war, regulate trade and migration, and levy taxes and appropriate money.

The separation of powers mandated by the Constitution was adhered to—more or less—until President Franklin Roosevelt stretched the powers to fight a global threat to liberty. In 1942, Roosevelt issued an executive order to move Japanese Americans—many of them U.S. citizens—into isolated camps in the western United States.

A critical turning point came at the start of the Korean War. Congressional leaders, in response to President Harry Truman’s request for a declaration of war, told Truman that he should act on his own authority. Subsequent presidents have not even bothered asking Congress to wage war.

Every president since Roosevelt has acquired more and more executive power with little or no resistance from Congress, and often with its acquiescence and sometimes at its urging.

After Watergate, Congress sought to recover some of its authority. A handful of reforms, such as the Freedom of Information Act, the Foreign Intelligence Surveillance Act, and the creation of the Senate and House intelligence committees, made a difference.

But most of the reforms failed. The president’s ability to go to war and to sustain combat operations without congressional approval has only increased, as have the abilities to impose economic sanctions, deny immigrants and visitors access to the United States, and control the release of information to Congress and the public.

If presidential power continues to grow, it will become beyond the reach of Congress to fix. Fortunately, Congress is beginning to debate what to do about the endless wars the nation is facing and how to regain a role in implementing sanctions. Congressional committees have expressed renewed interest in asserting their power to access documents from the Trump administration and determine what information is made public.

Because Congress can act only by presenting legislation to the president and securing his signature or overriding a veto, little of the needed reform can take place without buy-in from the president. In normal circumstances, that is simply not likely. Every president will feel obliged, urged on by his advisers and the permanent bureaucracy, to oppose any effort to limit current presidential powers. Indeed, the post-Watergate reforms failed in significant part because of the need to secure presidential agreement or to get enough votes to override a veto.

What is different now is that the public seems to understand that we cannot count on our presidents to observe tacit norms that limit what they can do. Presidential candidates may now be willing to commit themselves to signing a comprehensive bill restoring appropriate balance between Congress and the president.

What would be included in a new law?

Legislation is needed that will make real again the need for Congress to act before the nation goes to war or remain at war indefinitely. Congress needs to end current wars, whether authorized or not, and put real teeth into the requirement to secure congressional consent. A new Authorization for the Use of Military Force should be limited in time, geographic reach, and should identify the enemy or enemies against which force is authorized. The War Powers Act should be amended to prevent the use of force for any period without congressional concurrence.

What’s more, the president’s power to proclaim national emergencies and then act in unlawful ways must be constrained as well. A new law should prohibit specific actions, such as barring a president from spending money on programs for which the Congress has not provided funding. Other actions should require the president to spell out just what the emergency is, why special powers are needed, and how long that emergency is expected to last. The president’s emergency authority should lapse in 60 days unless Congress acts, and emergencies should last no more than two years.

Finally, Congress should play a greater role in determining the standards and processes for security clearances for executive branch and congressional staff.

When the Constitution was being drafted behind closed doors, many feared that the Framers would create a monarchy. As Benjamin Franklin left the hall as the meeting was ending, they shouted at him: “What is it?” Franklin replied, “A republic, if you can keep it.” Our ability to do so is being tested now. We must seize the moment to reestablish the republic that we were given.

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