Presidential Power and Congressional Abdication: A Constitutional Imbalance

James Madison articulated the essence of this design clearly: "In republican government, the legislative authority necessarily predominates" (Madison, 1788/2001, p. 318). Today, however, Congress has largely relinquished its central role, permitting an unprecedented expansion of presidential authority.

The Growth of Presidential Authority

Recent presidencies, including those of Barack Obama, Donald Trump, and Joe Biden, illustrate this trend through the extensive use of executive orders, emergency declarations, and presidential memoranda. These tools effectively circumvent congressional approval, stretching the boundaries of executive authority. Levinson and Pildes (2006) noted, "Congress’s abdication of its constitutional responsibilities has allowed presidents to assert authority far beyond what the Constitution's text and structure allow" (p. 2312).

For instance, President Trump's 2019 national emergency declaration to fund border wall construction demonstrated this growing dependence on executive power, even against clear congressional disapproval. Legal scholar Louis Fisher (2016) warned that "the collapse of congressional checks on presidential power has fundamentally altered the constitutional system in ways that threaten both democratic accountability and effective governance" (p. 45).

Why Congress Abdicates

Congress’s voluntary cession of power often arises from political expediency and partisan gridlock. As Moe and Howell (1999) suggest, presidents "have strong incentives to push the boundaries of their authority… and when they do, Congress and the courts often have political and institutional reasons not to intervene" (p. 132). Legislators frequently opt for political safety, permitting the executive branch to make tough decisions rather than risk backlash from their constituents.

Furthermore, increasingly polarized party politics have transformed congressional oversight into a partisan activity rather than a true constitutional check, diminishing its effectiveness in restraining presidential actions.

The Dangers of Imbalance

This shift poses significant risks. First, unchecked executive power diminishes democratic accountability. Harold Hongju Koh (2018) argues that concentrated presidential authority weakens transparency, permitting important policy decisions—such as military actions, international agreements, and immigration policies—to unfold without adequate public oversight or legislative involvement (p. 217).

Secondly, the growth of executive unilateralism creates policy instability. Policies enacted by executive orders can be quickly reversed by subsequent administrations, leading to unpredictable governance. For example, President Biden swiftly reversed numerous Trump-era policies via executive actions, highlighting the fragile and temporary nature of governance achieved through presidential decree (Somin, 2021).

Lastly, unchecked presidential power poses a threat to civil liberties. The executive branch’s expansive interpretations of surveillance powers under the Patriot Act and other national security laws highlight potential abuses when legislative oversight diminishes. As legal scholar Bruce Ackerman noted, "When Congress abdicates its constitutional duties, presidents increasingly test the boundaries of civil liberties" (Ackerman, 2020, p. 187).

Recent Examples and Congressional Responses

Recent developments present both glimmers of hope and cautionary tales. In 2023, debates regarding presidential authority over student loan forgiveness highlighted the risks of broad executive action without congressional support. The Supreme Court ultimately ruled that President Biden exceeded his authority, underscoring the constitutional requirement for congressional involvement in significant policy changes (Barnes, 2023).

Conversely, Congress has at times sought to reassert its authority, such as through bipartisan efforts to limit presidential war powers. Senators Tim Kaine (D-VA) and Todd Young (R-IN) recently introduced legislation aimed at repealing outdated Authorizations for Use of Military Force (AUMFs), in an effort to reclaim Congress's constitutional role in matters of war and peace (Carney, 2023).

Restoring the Balance

Addressing this imbalance demands congressional courage and a renewed bipartisan commitment to constitutional governance. Koh (2018) succinctly states, "Only when Congress reclaims its constitutional responsibilities can the system of checks and balances function as intended" (p. 217).

Public engagement remains crucial. Citizens must demand accountability, transparency, and constitutional adherence from both Congress and the presidency. Without active civic involvement, the erosion of checks and balances could quicken, fundamentally changing America’s democratic fabric.

Ultimately, this shift in power is not irreversible. However, protecting democracy requires immediate action to strengthen the constitutional framework that has upheld liberty and stability throughout America’s history.

References

Ackerman, B. (2020). The Decline and Fall of the American Republic. Harvard University Press.

Barnes, R. (2023). Supreme Court blocks Biden’s student loan forgiveness program. The Washington Post. Retrieved from https://www.washingtonpost.com

Carney, J. (2023). Bipartisan effort seeks to limit presidential war powers. The Hill. Retrieved from https://thehill.com

Fisher, L. (2016). The law of the executive branch: Presidential power. Oxford University Press.

Koh, H. H. (2018). The national security constitution: Sharing power after the Iran-Contra affair. Yale University Press.

Levinson, D. J., & Pildes, R. H. (2006). Separation of parties, not powers. Harvard Law Review, 119(8), 2311–2386.

Madison, J. (2001). Federalist No. 51. In G. W. Carey & J. McClellan (Eds.), The Federalist (pp. 317–322). Liberty Fund. (Original work published 1788)

Moe, T. M., & Howell, W. G. (1999). The presidential power of unilateral action. Journal of Law, Economics, and Organization, 15(1), 132–179.

Somin, I. (2021). Biden's use of executive orders highlights their dangerous growth. The Atlantic. Retrieved from https://www.theatlantic.com