Let’s Make a Deal to Roll Back Executive Power
If President-elect Joe Biden is serious about forging a bipartisan consensus in Washington and Senate Republicans are looking for ways to assert power, there is a natural solution. Congress should seek to reclaim powers that the legislative branch has surrendered to the executive, and Biden should agree to return them to their rightful place.
It sounds almost too simple to be true because, of course, cynical politics are predictable. The main obstacle to such basic reforms is that the conversation often dissolves into cases of situational ethics. One can reasonably expect that some of the same progressives who denounced Trump’s executive actions on immigration and climate change as abuses of power will not only be content to see Biden overturn them with his own executive actions on Day One of his presidency, but will eagerly anticipate Biden using the same tools to advance their preferred policies.
Partisan progressives will also likely lean on Trump’s previous abuses of the Federal Vacancies Reform Act in appointing “acting” officials as a reason to demand that Biden similarly circumvent the normal Senate confirmation process—should Mitch McConnell’s Republicans retain control of the chamber—to install his own officials.
It’s also not hard to imagine that Republicans will renew Obama-era wails about the dangers of an “imperial presidency” once Biden begins standing up a robust federal response to the coronavirus or starts talking about student loan forgiveness.
Still, despite these inevitable cases of tit-for-tat hypocrisy, there remains the potential for bipartisan agreement among those with a longer view of the risks of executive overreach—mainly because this is a vexing problem that pre-dates Donald Trump, although the 45th president’s wild authoritarian impulses did bring a renewed focus to the subject. And while Democrats have offered many worthy proposals designed to target abuses of power enacted by President Trump, the ripest and most profound areas of structural constitutional reforms go well beyond Trump’s specific abuses. Matters of executive overreach span presidencies, particularly in war powers expansion, declarations of national emergency, and congressional budget authority seizure.
Let’s start with Biden’s campaign promise to “end forever wars.” Congress could help him do that by repealing and replacing the ever-elastic 9/11-era authorizations of use of military force, which, while in operation, have become blank checks for presidents to make war.
Congress delivered President George W. Bush the 2001 authorization of military force (AUMF) on September 18, 2001, one week after the 9/11 terrorist attacks. Because American officials still did not know who the perpetrators of the attack were, the language is broad and vague. It reads:
… the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
A subsequent AUMF, enacted in 2002 authorized President Bush to “defend the national security of the United States against the continuing threat posed by Iraq.” As a matter of practice, the 2002 AUMF should have been repealed the day officials declared the war in Iraq to be over.
The 2001 AUMF is more urgently in need of revision, as it has been stretched beyond reason by subsequent administrations to cover unilateral military actions around the globe. Obama used it to conduct operations against the Islamic State. He also abused his powers, and semantics, when he unilaterally dropped precision bombs on Libya, and then his administration claimed it wasn’t “war” and was, instead “kinetic military action.” Some Republicans have argued that the 2001 AUMF justified Trump’s 2018 missile strikes in Syria.
Actions all taken without congressional approval.
Both the Obama and Trump administrations relied, in addition to the old AUMFs, upon a pair of 2001 and 2002 Office of Legal Counsel (OLC) memos to buttress their actions. Lawyers for both administrations determined that a president can conduct military action under his Article II powers—that is, sans congressional approval—as long as it satisfies two conditions. First, it must serve “important national interests.” Second, it must not amount to prolonged and substantial military engagement. These are not high legal bars to meet. To this point, both Obama and Trump have used these memos as constitutional justification for drone strikes, which under any common interpretation would be considered acts of war.
President Biden, if he wishes to restore constitutional order, should discard those memos. As Bob Bauer and Jack Goldsmith—respectively White House counsel to President Obama and assistant attorney general in charge of the OLC in the George W. Bush administration—write in their new book, After Trump: Reconstructing the Presidency, those two OLC opinions “are loaded guns that should be unloaded and stored safely. They should, in short, be abrogated.”
This is by no means a theoretical matter of constitutional crisis.
In early January, Trump pushed the limits of his war-making powers when he ordered a strike against Iran’s top security commander, Major General Qassem Soleimani, an action that could have quickly brought the United States into a full-scale war. Trump did not consult Congress before the strike—not even the “Gang of Eight” congressional leaders—which caught many lawmakers by surprise. Both houses of Congress then passed a measure to forbid Trump from conducting military operations in Iran without obtaining congressional authorizations—which Trump promptly vetoed. The Senate could not muster enough votes to override the presidential veto, and so Trump feels himself free—even now, in the waning days of his presidency—to look at options to attack Iran.
President Biden, however, is not likely to issue such a veto. In fact, in 2007, then-Senator Biden said he would support impeaching President Bush if he tried to take the United States to war with Iran using the 9/11-era AUMFs.
In the new Congress, members should again try to limit the president’s unilateral war-making powers by terminating the old AUMFs. In their place, Congress should issue a new AUMF that would allow the president to pursue terrorist targets, but only entities specifically authorized, or in countries specifically authorized, by Congress. The new AUMF should also contain a sunset provision requiring yearly renewal every one or two years, so that it cannot be extended indefinitely without deliberate reauthorization, ensuring that Congress retains an oversight role in the executive war-making policy.
By ending “forever authorizations,” Biden could fulfill his promise to “end forever wars.”
Next, Congress should review and restrict presidential powers to declare national emergencies, bestowed to the executive branch under the 1976 National Emergencies Act and the 1977 International Emergency Economic Powers Act.
Trump showed how easily these powers could be abused when he declared a “national emergency” in February 2019 as a legal justification for ordering the Armed Forces to build the southern border wall after Congress explicitly refused him the money. Congress twice passed bipartisan resolutions disapproving his declaration, which Trump promptly vetoed, and Congress was unable to override.
In response, Sen. Mike Lee (R-Utah) proposed the ARTICLE ONE Act that would automatically terminate any national emergency after 30 days if Congress does not approve it. Again, this is a long-overdue reform for a problem that pre-dates Trump.
Since the emergency laws were enacted in the late 1970s, presidents have declared 59 national emergencies, and 33 of them are still in effect, including the first one ever proclaimed in 1979 by President Jimmy Carter in response to the Iranian hostage crisis.
Even while Trump typically enjoyed lockstep support from Senate Republicans, Lee attracted 18 GOP cosponsors for his legislation, designed to check the powers, at the time, of the GOP president. The names of those cosponsors are worth noting; the list includes two members of the Senate GOP leadership team, Sens. Roy Blunt and Joni Ernst.
And the southern border “emergency” wasn’t the only time Trump drew Republican ire for invoking these powers. The president also faced a backlash when he issued such a declaration to bypass Congress in 2019 to sell arms to Saudi Arabia and the United Arab Emirates. The White House argued the action was necessary to deter Iran’s “malign influence” in the region. In a committee hearing, Sen. Ted Cruz, who is also a sponsor of ARTICLE ONE, said that while he agreed with the administration’s motivation, the way it was handled was an affront to constitutional order. In a hearing, Cruz berated a State Department official:
If the administration does it again and there is not a live and exigent emergency, you will not have my vote, and I predict you will not have the vote of a number of other Republicans as well. The simpler process is follow the damn law and respect it. The process that the State Department followed for these weapons sales, not to put too fine a point on it, was crap…. The administration, in what seems to me a not fully baked decision process, decided to circumvent the law, decided to circumvent the constitutional responsibility of Congress, and act unilaterally.
One doesn’t have to imagine how furious Cruz would be if the Biden administration did the same. Biden’s State Department could not expect a second chance. If Lee’s legislation passed, however, no future administration would be in a position to ask for one.
Power of the Purse
Congress should also seek reforms to reclaim its power of the purse in tandem with national emergency reform. President Trump’s declaration of a national emergency at the southern border would be much diminished in effect if he weren’t also able to seize funds to build his wall.
And peremptorily taking funds isn’t the only problem. A president can similarly abuse power by freezing money that Congress appropriated and authorized spending for, as President Trump did when he paused funding $250 million in military assistance for Ukraine, paving the way for his impeachment. As Sen. Patrick Leahy (D-Vt), vice chairman of the Senate Appropriations Committee, wrote in an op-ed:
I have never seen anything like it. After all, if the president can interpose his personal interests between congressional appropriations and a designated funding recipient, such as Ukraine, what would stop him from withholding development funds intended for a U.S. city until the mayor endorses him? What stops him from holding any part of the $4.7 trillion annual federal budget hostage to his personal whims?
Eventually, the funding was released, but only because several Republican senators, including Trump champion Lindsey Graham, threatened to vote for an amendment by Illinois Democrat Sen. Dick Dubin to force the funds’ release.
As a remedy, Leahy proposed the Congressional Power of the Purse legislation, in companion with House Budget chairman John Yarmuth and Appropriations chairwoman Nita Lowey, all notable figures when it comes to congressional spending policy. This bill would prevent a president from rescinding or deferring funds without congressional approval. Interestingly, it also contains national emergency reform language remarkably similar to Lee’s ARTICLE ONE legislation, showing how neatly the two ideas complement each other.
In a Washington removed from the partisan divisions over Trump’s impeachment for his handling of Ukraine, one could see how a meeting of Republican and Democratic minds could come together here. All it might take is a suggestion from Biden’s next Environmental Protection Agency administrator that federal money should be withheld from non-carbon-neutral cities to get Republicans fully on board.
Just as Congress did post-Watergate, many Democrats are pushing reforms tailored to Trump-specific abuses of power. The Protecting Our Democracy Act, unveiled in September, attracted little attention from Republicans given the package’s partisan nature. But with some time and space from the Trump administration, one would hope Republicans might be willing to take some aspects of the bill under consideration. This wide-ranging set of reforms not only addresses matters related to national emergencies and spending but also protections for inspectors general and federal whistleblowers that may become more enticing to Republicans during a Biden administration.
Eventually, both parties should be willing to debate these and other Trump-specific reforms, such as increasing the penalties for violating the Hatch Act and anti-nepotism laws, enforcing congressional subpoenas, clarifying and strengthening the Emoluments Clause, requiring presidential candidates to release tax returns, and limiting the president’s ability to appoint “acting” officials. But, beginning with weighty matters such as war powers, national emergencies, and spending could prove more beneficial in the long term.
And the time for Republicans to start contemplating executive reforms is now.
As the Biden administration settles in, the temptation among Democrats to begin using Trump’s various abuses as justification for their own will only grow. Republicans should act quickly, while worries of Trump’s abuses of power are fresh in Democrats’ minds and before Biden finds himself tempted to misuse these powers himself.
Correction: An earlier version of this article listed the number of original cosponsors of Senator Lee’s bill; it has been updated to include those who later cosponsored it.