The betting market PredictIt gives the Democrats about a 60 percent chance of capturing the presidency next year. Their odds of winning the Senate are only about one in three, however — meaning that in the event of a Trump loss, conservatives could feel the relief of sweet, sweet gridlock as Congress simply refuses to pass Medicare for All and zillion-dollar handouts to college grads.
But there is good reason to temper your optimism about such a scenario: Congress has handed over to the executive branch a frighteningly broad ability to make laws by itself. The campaign has given us some previews of this — Kamala Harris wants to go after guns and Elizabeth Warren would target fracking, whether Congress likes it or not — though the candidates have mostly been focused on their biggest and most expensive pieces of proposed legislation.
Last week, however, the liberal American Prospect rolled out a series of articles proposing a meaty “Day One Agenda” for the next Democrat in charge of the White House. This president could roll back Trump’s deregulatory efforts, bring backed stalled Obama initiatives, and launch government giveaways and major assaults on business, all without the legislative branch’s help. Read it and weep.
Think it would take a vote in Congress to cancel “almost all” student debt? Think again, says Marcia Brown. Citing a forthcoming law-review article by Luke Herrine, Brown notes a provision of federal law giving the Department of Education the authority to “compromise, waive, or release” claims against student borrowers. While other actors in the executive branch (the attorney general and the Office of Management and Budget) might have to sign off, the department could in theory use this authority to simply stop collecting student debt.
Think Trump got us out of Obama’s Clean Power Plan for good? You shouldn’t, Ben Adler says. The next president could take us back down that path. And since carbon emissions are far lower today than anyone expected — thanks to fracking and other technological improvements — the next president could “go further and increase the rule’s ambition.”
Think the Tax Cuts and Jobs Act is a done deal, so long as Democrats don’t have enough votes in Congress to undermine it? Nope, writes Victor Fleischer. The IRS can’t repeal the law, but it can aggressively reinterpret many of its provisions, not to mention provisions in the rest of our enormous tax code, in ways that affect the taxation of huge sums of money.
There’s lots more: A Democratic president could go after drug companies by threatening to let generics manufacturers make patented drugs, create “postal banking” by executive fiat, bring back aggressive antitrust enforcement against the biggest and most successful companies, and make pot “effectively legal.”
Okay, that last one I’m fine with. But how do we stop the rest?
One way would have been for Republicans to rein in the executive branch in the two years they controlled Congress, albeit without a filibuster-proof margin in the Senate, but that didn’t happen. Another would be to hold the White House, or at least luck into a moderate Democrat not eager to test the limits of executive power. Once a Democratic president actually starts trying this stuff, though, the issue will fall to the courts. (There’s yet another article about that!)
The easiest way to argue against an abuse of executive power is to say that the relevant statute passed by Congress doesn’t actually authorize it. Though courts have typically given executive agencies broad deference when it comes to interpreting laws, many conservative judges have shown signs that they want to reverse this trend. Some of the actions outlined above do fall well within the discretion Congress has handed over to the executive branch, but the more aggressive ones go far beyond anything Congress anticipated when passing the laws in question.
In some situations, such as when the president simply refuses to enforce a law, it can also be argued that the president is violating the Constitution’s command that he “take care” to faithfully execute the laws. But there’s very little precedent for such cases, and it can be difficult to find someone harmed by the action with standing to sue, or to distinguish a failure to “take care” from normal discretion regarding how laws are executed.
Then there’s the big kahuna: The “nondelegation doctrine,” which holds that Congress can’t delegate its constitutional lawmaking authority to the president, at least not when it comes to key policy decisions as opposed to filling in minor details. This doctrine has sat dormant for decades, but the Supreme Court’s conservatives are interested in reviving it. The question is how far they would be willing to take it, and to what degree they would treat new expansions of executive power differently from old ones.
In an opinion this year, liberal justice Elena Kagan remarked that if the conservatives on the Court were right and the delegation of power at issue in the case was unconstitutional, then “most of Government” would be unconstitutional. (The conservatives lost the case 5–3, but Brett Kavanaugh recused himself, and Samuel Alito voted with the liberals despite wanting to reconsider the nondelegation doctrine in a different case, presumably one where Kavanaugh could create a five-conservative majority.) Kagan’s fears are music to my ears, but I bet at least one conservative justice flakes before they are anywhere close to realized, not least because the conservative dissent to the opinion in which she voiced them takes pains to specify that even under the nondelegation doctrine, Congress may, for example, “authorize executive-branch officials to fill in even a large number of details.”
Still, conservatives could find themselves relying on the judicial branch a whole lot in the years ahead. In the event that a liberal Democrat takes the White House and pushes executive power past the limit, we could be saying “but Gorsuch and Kavanaugh!” for far longer than anyone thought.