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Our Last Emperor

by Oren Cass

Toward a bipartisan compromise to rein in executive power

Our system of government does little to prevent a strongman or a crank from winning the presidency. As long as Electoral College members adhere faithfully to the election results in their states, voters may choose whomever they want, on whatever basis. Recognizing this, the Constitution’s framers tightly circumscribed the president’s role, checking it horizontally with coequal branches that resist sudden change and vertically with the many powers reserved to the states.

Throughout American history, no shortage of questionable characters has run for, seriously contested, and even attained the presidency. Yet as the unfolding 2016 campaign has brought fresh reminders of democracy’s unpredictability, the governing class has panicked, directing outrage and disdain at absurd candidates and their seemingly irrational supporters and mourning the impending collapse of the republic. The panic is understandable, but the blame badly misplaced.

The dangerous and novel phenomenon of 2016 is not irresponsible politicians or an inflamed electorate, but rather the unprecedented concentration of power awaiting the election’s ultimate winner. Ironically, many of the now-panicking elites are the very ones who made the presidency so powerful. If they can learn the right lesson from the recent chaos, the specter — even fleeting — of a President Trump or a President Sanders could provide the needed spur to restore balance to our constitutional system.

Both parties have done their best to expand the power of the presidency in recent decades — whenever the presidency was theirs. Presidents Reagan and then Clinton established unprecedented White House control over the sprawl of federal agencies. The second President Bush asserted nearly exclusive authority to manage national security and foreign affairs. President Obama, after campaigning against the Bush administration’s excesses, doubled down on most and then applied the same attitude to matters of domestic policy.

Famously, Obama described in 2014 his “pen and phone” strategy for governing alone in his second term. At the 2015 White House Correspondents’ Dinner, the president informed the audience that he had “something that rhymes with ‘bucket list.’ Take executive action on immigration. Bucket. New climate regulations. Bucket, it’s the right thing to do.”

Under Obama’s theory of the office, a president may use an obscure provision from 1970s legislation to overhaul the nation’s utility sector and implement a cap-and-trade system for carbon dioxide emissions, even after Congress expressly rejects such an approach. He may use TARP, a program targeted at the national financial system, to make the federal government part-owner of the auto industry, while using other economic-stimulus funds to manipulate states into adopting the Common Core curriculum standards. He may offer de facto amnesty by refusing to enforce immigration laws.

Hillary Clinton, running to succeed Obama, has already pledged to go even further in declining to enforce immigration laws, and to extend that approach to gun control and financial regulation as well. The reach of the federal government has become all-encompassing, and the president’s position in that government dominant.

Reversing this trend will not be easy. In the typical pattern, the party out of power objects to expansions of executive authority because it objects to the ends the current president is pursuing. But once it’s in power again, the farthest expansions of the prior administration’s claims of power become a useful starting point for yet farther expansion in service of a different agenda. The ratchet turns only one way; no one in power ever abandons his own goals for the sake of reimposing limits.

Conservatives argue for restricting executive power to advance the cause of limited government, forgoing short-term policy gains to establish a preferred long-term structure wherein multiple checks on each actor’s power slow the machinery of Washington. But that goal has no chance of receiving bipartisan support. And if conservatives pursue it unilaterally, they handicap only themselves, restricting their own power and thus their policy gains when in charge, only to see the other side leap ahead when given the chance.

Restoring balance to the constitutional system will therefore require that all sides focus on a third and far more important rationale: The president’s power should be confined not to what we want any particular executive to have, but to what we would want the worst imaginable president to have. Such thoughts are far from the minds of both governing and governed when a long line of Bushes, Clintons, Gores, Kerrys, McCains, Obamas, and Romneys graces the national stage, and a Vermont governor with a medical practice passes as the “insurgent.” But 2016 should provide just the shock the system needs.

The decisive winner of the Democrats’ New Hampshire primary is an avowed socialist who condemns the American financial system as “fraud,” promises a “revolution,” and includes among his top policy priorities rolling back the First Amendment and prosecuting “climate deniers.” The decisive winner of the Republicans’ New Hampshire primary is a buffoonish self-parody promising to “bring back a hell of a lot worse than waterboarding” and proudly advocating a religious test for entry into the country. Bizarrely, those two probably face less distrust and disdain than their rivals who won in Iowa.

How quickly the tuxedoed guffawing goes silent at the thought of President Trump’s checking items off a “rhymes with bucket” list of his own. That neither he nor Senator Sanders seems likely to become president is beside the point. Their political viability exposes a systemic vulnerability that deserves attention before someone capable of building a majority emerges.

Fortunately, now would seem an opportune moment in Washington as well. President Obama has a seven-plus-year legacy of mostly executive accomplishments that could be wiped away by a Republican successor equipped with comparable powers. Rather than roll the dice on the outcome of the election, mightn’t he consider cementing his gains in exchange for compromising with Congress to curb future presidents, even a future President Clinton? The Republican majority in Congress, meanwhile, has never been stronger and cannot possibly relish the prospect of subservience to the whims of a President Clinton, Sanders, Trump, or Cruz.

The opportunity for compromise is greatest when each side fears the realistic prospect of an outcome far worse than what negotiation can achieve. What would a compromise on executive power look like? The top priority should be for Congress to reassert its prerogatives. Any one person can be elected president, but good luck electing 300 people of similar mindset to the House and Senate across multiple election cycles. A number of proposals exist for strengthening legislative control vis-à-vis the executive, with many of the best consolidated in the Article I Project (A1P) launched recently by Senator Mike Lee (R., Utah) and Representative Jeb Hensarling (R., Texas).

Two ideas motivate the A1P reforms: Congress gets to decide how much money the president may spend, and Congress gets to decide what rules the president’s agencies may promulgate. Of course, those principles exist today. But by default, the president can act as he pleases until Congress finds the will to resist. Lee and Hensarling’s proposal would establish a new default, hamstringing the president until he secures congressional approval. 

A1P’s first set of reforms restores the congressional “power of the purse” so that budgets for each agency are deliberated and approved, not shoved through as a single omnibus. The second, related set eliminates the “legislative cliffs” — such as debt-ceiling limits and budget deadlines — that encourage brinksmanship and political blackmail. Planks three and four of the agenda establish congressional control over the number and cost of new rules and veto power over major rules, while limiting the discretion the agencies have to define their own authority.

Other ways of constraining the presidency deserve consideration as well. Congress should reassert its role in foreign policy, replacing the open-ended, post-9/11 Authorization for Use of Military Force (AUMF) that has enabled the war on terror for nearly 15 years, with a narrower authorization that defines permissible actions and proscribes further adventures without Congress’s express consent. A future president might contest the constitutionality of such limits, but at least his power would be at its “lowest ebb,” in the immortal words of Justice Jackson, when he acted in direct conflict with the law.

States also need greater protection from the federal leviathan. So much state revenue must travel first through Washington that even the most rebellious governor often has little choice but to accede to White House demands. Funding streams entangled in conditions and waivers, all of which are implemented at the discretion of executive agencies, should be freed from those constraints. In areas such as education and health care, funds that states rely on should be delivered automatically, regardless of whether a state’s policies meet with a president’s approval. Let Congress be the branch to take action if it considers the money poorly spent.

Finally, courts share blame for the current imbalance and have their own role to play in correcting it. Their decades of deference to executive interpretations of the law, combined with their creation of procedural doctrines that preclude challenging the executive at all, have aggrandized the presidency at their own expense and the legislature’s. Over the coming months, they might consider which doctrines they would wish looked different in the face of a Trump administration. United States v. Texas — the pending challenge to the Obama administration’s non-enforcement of immigration law, which the Supreme Court will decide in June — would be an ideal opportunity to clarify some of the limits on what a president may do.

Conservatives should not expect unmitigated victory in limiting presidential power. Hopefully, Americans of every political persuasion are discovering their shared interest in limiting the damage a single person can do. But just as the needed reforms will demand sacrifices from advocates of big government, they will likely require sacrifices from the limited-government side as well.

Fortunately, there is much to offer. Any number of Obama’s executive actions could be codified in legislation in return for his support in preventing future abuses. Similarly, conservatives might bring to the table a list of loopholes, waivers, and ambiguities in existing legislation that the next Republican president might be expected to exploit and suggest eliminating them in return for comparable eliminations on the left. Broad constituencies that cut across party lines support reforms in other areas, from the budgeting process to the debt ceiling to oversight of military conflicts.

The long arc of American history has bent inevitably toward bigger government and greater executive power. This harms the conservative project under almost any president, and poses significant risks to all Americans under a truly malicious or incompetent leader. If 2016 creates an awareness that all sides will benefit from President Obama’s being the last of the imperial presidents, then there should be scope for meaningful progress. Perhaps it is the one great deal that Candidate Trump can help America make.

– Mr. Cass is a senior fellow at the Manhattan Institute.

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