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Our New Reconstruction: Constraining The Growth of Presidential Powers

· by Karl Auerbach · Read in about 22 min · (4543 Words)
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Revised: September 23, 2020

The Trump presidency has been a Constitutional disaster for the United States. Presidential power, which already had been growing at an alarming rate in prior administrations, has exploded to dictatorial levels under Trump.

It is not reasonable to expect that future presidents will easily reject these powers. Even if not used by the next or subsequent presidents these powers will retain their potency and be available to be resurrected and used.

Many of these new claims to executive power exclude, in practical reality if not in academic theory, the authority of Congress, the Courts, or the people of the United States to step in to impose corrections or limitations.

Our system of Separation of Powers has been weakened. Madison’s notion, as expressed in the Federalist Papers (Number 51), that “Ambition must be made to counteract ambition”, is in need of life support.

Because the basic allocation of authority in the United States comes from our Constitution it is beyond the power of Congress, the courts, or the States either individually or in concert, to do more than apply cosmetic remedies.

As a consequence we are faced with an exigent need to update our US Constitution with one or more amendments that define the limits of executive authority and create and enhance the balancing powers vested in the other branches of government and the citizenry.

In the years just after the Civil War, Congress and the States created three new Constitutional amendments, along with a body of supporting legislation. These Amendments and laws reshaped our country in ways that remain important, more than 150 years later.

It is time to do so again.

Our nation is in need of New Reconstruction.

What Am I Trying To Express Here?

The purpose of this piece is to initiate a dialog.

Constitutional amendments are complicated things. New amendments must fit into the pre-existing document and framework of case law. And if adopted these new amendments will be stretched and pulled by competing political views and the passage of time. So proposed amendments ought to aspire to say what they mean and no more.

Rather than re-hashing the events that are driving us to a New Reconstruction, I will delve into some ideas about the changes we need to make to our basic organic document, the Constitution of the United States of America.

I’ve written some specific proposals. However, given the difficulty of drafting new language this piece does not attempt to make specific textual suggestions for every issue.

I do not claim that the specific textual suggestions made here are the best possible expression. Revision, clarification, extension, and pruning by others is invited and welcome.

This document may be revised from time to time.

Focused Changes Not Wholesale Replacement of the Constitution

There is danger in wholesale rewriting of constitutions. The results could be good. But more likely they would be ill. Absent a broad consensus of such a dramatic undertaking, it is safer to make focused changes to the existing structure.

The Articles and Amendments to the US Constitution are foundations. Legislation and court decisions build upon those foundational stones. The power of Congress to enact that legislation flows mainly from Article I. However, as we have seen, particularly with regard to things like the existing Emoluments clauses and the three post Civil War Amendments, clarity of authority is enhanced and power vacuums avoided if Congress is granted appropriate powers to enact legislation to carry out the purposes of each new amendment.

So what do we do? We amend the Constitution to enunciate new allocations and limitations of power. And following the model of the post Civil War amendments, each amendment ought to grant specific authority to Congress to enact legislation (usually in accord with the normal process) to carry out the purposes of the amendment.

The Problems

The words ‘executive power’ of Article II have proven to be vague and excessively elastic.

The word “executive” means a person or body that acts, that executes.

There is an implication that the “executive power” is to be performed in accord with some policy framework or law created by a separate, legislative body.

There is, of course, a practical assumption that small details of that execution will be left to the discretion of the executive. But that assumption has grown to the degree that it can, and does, displace the law or policy being executed.

We have reached a point where our President/Executive is asserting the authority to make large decisions that supersede or contradict Congress. This arrogation of power is often greatest when tied to an assertion, by the President, of “emergency” (often without much regard whether an actual emergency exists or not).

Congress has done its share of making a mess of this situation. Over the years, law after law has been enacted, and signed by the then sitting President, granting authority to the President to act or make certain choices. And once granted, Congress has great difficulty reclaiming those powers.

As our country has grown Congress has created a great number of administrative agencies — such as the FDA or EPA. These have been invested with vast rule-making (legislative) and enforcement (executive) authority. Nearly all of these agencies are under Presidential authority in one way or another. And attempts by Congress to add a degree of protection from Executive overreach have been rejected by the courts as an infringement of the “executive power”.

Our current president has demonstrated that Congress, because it must act by consensus and majority, is slow and weak. And that the President, because the powers are exercised by, or delegated from, one person, can be fast and strong.

Over the years there has been an increasing tendency of Presidents (and Vice Presidents and other members in the Executive branch) to withhold information from Congress thus blocking Congress from exercising its powers of investigation, legislation, oversight, and impeachment.

The courts have added to this imbalance by refusing to give standing to individual members or committees of the House of Representatives, the Senate, or citizens, thus denying them recourse to the courts.

The courts have had a barren view of Congressional power vis-a-vis the President. For example, courts have constrained Congressional inquiries into executive actions by creating a notion that Congress must act only around specific legislative proposals. That rules out the obvious fact that legislative proposals as often as not rise out of investigations rather than vice versa. And the courts also seem to forget that Congress has vast powers under Article I and that Congress is not obligated to indicate which specific source of authority it is acting under.

The growing, and to my mind, absurd and unprincipled, theory of “unified executive” powers has created a situation in which it has become even more necessary to embed constraints on executive power into the Constitution itself rather than hoping that statutory limits can be effective.

Defining and Limiting “The executive power” Expressed in Article II

Let us begin with the core problem: excessive concentration of executive power.

Our Constitution requires the following oath of office to be sworn by an incoming President:

I do solemly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

That oath does not really define executive power, but it does begin to show us some of the duties and, by implication, the limits.

Perhaps that oath could be revised through the addition of a few words?

I do solemly swear (or affirm) that I will faithfully execute the Office of President of the United States, forsaking all allegiance to any party, affiliation or State, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

That change emphasizes that the paramount duty of a President is to promote and protect the interests of the United States.

However, useful as this change to the oath would be, it is not, by itself, sufficient to constrain the growth of executive power vis-a-vis the other branches of our government and the States.

So let me propose three specific amendments that begin to define executive power and its limits.

The executive power of Article II is limited to the power to faithfully execute such laws as are enacted by Congress, treaties to which the Senate has consented, and those other powers specifically enumerated in Article II.

Declarations of war or other authorizations for the use of military force shall end twenty-four months after enactment unless renewed by a majority of both the House of Representatives and the Senate.

No declaration or finding of National Emergency by the Executive, whether pursuant to a law or not, shall endure longer than twelve months.

There is existing statutory authority that Congress can use (via a joint resolution) to terminate certain declarations of emergency. See 50 U.S. Code § 1622. National emergencies

However, that power requires that both the House and Senate agree to the joint resolution. And being statutory, 5 USC 1622 may find itself blocked by assertions that the emergency declaration is based on some vague intrinsic “unitary” executive power arising out of the Constitution itself that can not be touched Congress.

Define and Limit Executive Privilege

The concept of “executive privilege” is not overtly enunciated by the Constitution of the United States.

The founders certainly did understand privilege. They mention various privileges for members of Congress (Article I Section 6) and for persons and citizens (Article I Section 9, Article IV Section 2).

The founders put no overt language into the Constitution that grants privilege to the President.

It does make sense for there to be a degree of privacy in the preparation for, and pursuit of, executive actions.

So it is reasonable and proper to imply certain executive privileges, just as we imply certain powers to Congress from the Necessary and Proper clause or “penumbras” of privacy.

But who defines those implications? Recently, it seems that the President is doing that, and painting these claims of privilege with a very wide brush. This has created the most opaque and unaccountable presidency in US history.

Rather than having assertions of privilege be created by the one who could benefit by broad or incorrect assertions, i.e., the President, our notion of separation of powers suggests that, as with other policies, the definitions be made by Congress and evaluated by the courts.

Rather than enumerating specific limits to Executive Privilege it is easier to allow Congress to enumerate those places where it could be claimed.

Below are two expressions of possible amendments:

Each house of Congress shall have the authority to present questions to, and receive responsive answers from, the President and any subordinate at any level. The President or subordinate may indicate that the material is of a sensitive nature and ought to be protected. Congress may take such steps, if any, as it deems necessary and proper to provide such protection.

The Congress shall have power to enforce this article by appropriate legislation.

The House and Senate, individually or jointly, in whole or by committee, may ask any question of any current or former member of the Executive branch, including the President, and shall receive a timely and responsive answer.

The House and Senate, individually or jointly, in whole or by committee, may inspect any records or property of the United States.

The President may indicate that the material is of a sensitive nature and ought to be protected. Congress may take such steps, if any, as it deems necessary and proper to provide such protection.

The Congress shall have power to enforce this article by appropriate legislation.

Constrain Presidential “Immunity”

Our current President has made claims of immunity that are so breathtaking that they remind us of a phrase associated with one of the most absolute monarchs of all times, Louis XIV: “L’État, c’est moi” (the state, it is I).

Yet one of our nation’s principles is that no person is above the law.

Clearly the President should have no immunity for his/her private affairs from civil lawsuits, criminal indictments, trials, subpoenas, etc.

Yet our most recent President has dismissed or ignored legal procedures and orders issued by courts and by Congress. That same President has claimed, and as a practical matter has received, total immunity from both civil and criminal law at both the Federal and State level. That immunity has recently shown a few cracks, but our legal processes are glacially slow and thus none of these cracks will be explored before the election in November of 2020.

Moreover given that the President has massive resources at his command excuses that sound like “I, the President, am too busy to respond” should be weighed and considered rather than accepted without question.

It is time to make it crystal clear that the President is not above the law except in those very narrow and very few areas reserved to the President by the Constitution. Resolution of any ambiguities should be left to the legislative and judicial branches of our Federal government.

Except for actions performed in his official capacity as President neither the President, his family, nor any entity in which they hold any beneficial interest shall obtain immunity from any Federal or State legal processes, whether of a civil, criminal, or investigatory nature except as provided for by Federal or State law.

Expand Concept of Standing To Enforce Constitutional Obligations

Standing is a concept used by our courts to assure that a case brought to the attention of a court is a real controversy between real parties.

Standing generally requires that a plaintiff have a particularized injury.

Sometimes, however, this requirement leads to an injury without a judicial remedy. This is perhaps most succinctly expressed in the question “Do trees have standing” that was raised when plaintiffs tried to bring cases to enforce environmental laws and the first order damage was largely felt by non-humans and the second order damage was diffusely suffered by everyone.

We have seen the rules of standing used to block citizens, States, members of Congress, and others from instigating legal complaints that the President is violating the Emoluments clauses of our Constitution. This has left a vacuum in which there is significant evidence of Constitutional wrongdoing but no means for the citizens of the United States or their representatives to challenge that wrongdoing short of impeachment and removal from office.

Words that have been placed into our Constitution are, by definition, important. It would be sensible to reduce standing requirements to bring actions to enforce those words.

However, relaxed standing creates a danger of contrived cases in which friendly plaintiffs contrive to bring a weak case in order to establish a judicial precedent that is weaker than, or contrary to, the result that would have obtained had a more motivated plaintiff been in charge.

So how can we retain the basic notion of standing yet open the door to reasonable legal actions?

A Model Based On Derivative Actions By Corporate Shareholders

A useful analogy is the concept of “derivative action”, borrowed from corporation laws.

A derivative action is a legal action brought by a shareholder against corporate officers or directors who have failed in their duties. In theory it is not the shareholder who is bringing the action; rather it is the corporation itself who is the real damaged party and the real plaintiff.

What I am suggesting here is a new form of action in which a citizen (or resident) brings an action against a Federal agency or a member of the Federal government on the grounds that that government person (or agency) has failed in his/her obligations. The theory of the case would be that the United States is the real plaintiff; standing would be measured on that basis.

One of the intriguing aspects of this approach is that in derivative actions once certain thresholds have been reached, the corporation, or in this case, the government, may be required to pay the legal costs.

Increase the Authority of Congress To Compel the Executive Branch

With each passing crisis the Trump administration has become more willing to ignore and dismiss Congressional acts such as subpoenas, requests for documents, information, or explanations on matters that are well within the vast powers of Congress to investigate, legislate, and impeach.

Courts are unwilling to step into these disputes, often citing some rubric about being unwilling to enter a dispute between “the political branches”.

Congress lacks means to enforce its requests and demands.

Congress could withhold appropriations. But that is slow. And as we have seen from recent events, a President with a pliant Secretary of the Treasury can try to circumvent this by repurposing money appropriated for other purposes.

Congress has its Sergeants at Arms and, to a degree, the DC police. These are hardly effective means against a President who has the world’s largest military at his disposal, not to mention the ad-hoc somewhat secret police force that has arisen out of disparate agencies within DHS.

Congress ought to have clear enforcement authority, power, and means to compel the Executive branch to respond to Congressional requests and demands.

This ought to include the authority to establish officers with power to detain and arrest members of the Executive branch. Perhaps this power ought not provide for detention or arrest of the President’s person itself. But it could provide for the detention or arrest of subordinates. And it should not be subject to the Presidential power to pardon.

This is an area in which we will have to think carefully. History in other countries has demonstrated that this kind of power of one branch over another must be limited.

Care will have to be taken to assure that these powers cannot grow or be abused. (The formulation below does not yet have language expressing those limitations.)

The House of Representatives and the Senate shall have the joint and severable authority and all powers necessary and proper to enforce and compel subpoenas and other investigatory requests made to the President or Executive branch. Congress shall have the power to appropriate and expend such funds from the Treasury as in Congress' sole opinion are necessary and appropriate to exercise these powers.

Control of the Military

We should remember and recognize that although the President has Article II Section 2 authority to be “commander in chief of the Army and Navy of the United States, and of the militia of the several states” Congress itself has enormous authority under Article I Section 8 with regard to the US military and militia forces.

The courts, the people, and the media should not accept assertions that control of the military is solely within the power of the executive.

Clarify Emoluments Clauses

The existing Emoluments clauses in the Constitution are ambiguous.

We ought to clarify that the Emoluments constraints apply to the President in both his official and personal capacities and extend to any property, corporation, or organization in which he may have any direct or indirect beneficial interest.

Constrain Pardon and Commutation Powers

We have seen a clear abuse of the Presidential power to pardon crimes. In addition, from Lincoln to Ford we have seen the establishment of the notion that pardons can be prospective, pardoning acts and crimes not yet charged.

The President may not issue any pardon or commutation to any person or entity that has not yet been found or pled guilty of a crime and sentenced; and if sentenced to incarceration that pardon or commutation shall not take effect until the person or entity has served at least 10% of the duration of the sentence.

No pardon or commutation shall take effect until after a period of sixty days, during which time Congress may, by majority vote of both houses, block the pardon or commutation, rendering such pardon or commutation null and void.

We might want to soften these proposals to allow full and immediate pardons and commutations if Congress gives its assent.

Ban Use of United States Treasury Funds For Purposes of Personal Aggrandizement or Self Promotion

It has long been a practice in corporate America to blend business with pleasure.

We see that reflected in the modern Presidency in the use of Federal property, such as the Air Force One aircraft, for pleasure trips and dispensation of partisan favors. These, as in business, are often accompanied by small legitimate acts to provide a cover story.

Trump has spent a large amount of his term engaged in personal pursuits, such as golf or stays at his resorts, at significant government expense.

We also see lesser, almost minor, abuses of US assets, such as the creation of “Challenge Coins” that promote the sitting President.

Our nation’s treasury ought not to be a piggy bank that the President can use to enrich himself, his family, or his friends.

We know from experience that when the President’s own personal interests, or interests of friends, family, and supporters are involved, that we ought not trust the President to make fair and disinterested judgements regarding what is, and what is not, proper uses of United States property or funds.

Correcting this does not require an Amendment to the Constitution. It merely requires that appropriate limits, oversight, auditing, and means of recapture be established by statute and in appropriations.

See, for instance, my proposal “A Bill to ensure that United States Treasury funds are not expended for certain purposes of personal aggrandizement or self promotion."

Grant Congress the Unilateral Authority To Repeal An Existing Law

Congress sometimes enacts a law that is unwise or is no longer meeting its purpose. Frequently those laws are grants of authority to the President. When such a law is considered useful by a sitting President the only way that Congress may be able to eliminate it is to override a Presidential veto. Obtaining the necessary two-thirds vote in both the House and Senate could be quite difficult.

As a consequence there are many obsolete or outdated laws that a President can weaponize and increase Presidential power.

Congress ought to have the unilateral authority to repeal such laws without the need for a Presidential signature. The threshold for this ought to be something more than a majority of both houses but less than that required to override a veto, perhaps something on the order of a three-fifths (60%) vote in both houses.

A President ought not to have the power to veto such a repeal.

Repeals create statutory vacuums and ambiguity about what law fills the gap. For laws that are complex, or that have been in place a long time, or upon which many people depend, it might be difficult to ascertain a status-quo ante.

If we allow Congress to attach a statement of what law should backfill the gap created by the repeal then we may be creating a way for Congress to end-run the normal enactment process.

My suggestion here is that we begin with a small piece of the problem. Let us consider allowing Congress to withdraw any appropriation or approval to expend money.

The Congress shall have the power to revoke any appropriation of money or any authorization to expend money by a 3/5 vote in both the House of Representatives and the Senate the Congress. The President shall not have the power to veto such a revocation. The Congress shall have power to enforce this article by appropriate legislation.

Define and Limit the Concept of Natural Law

“Natural law” is the notion that there is some higher or older law that pre-dates and fills gaps in the Constitution.

In the view of natural law advocates, the Constitutions merely overlays and extends or amends that background of natural law.

What “natural law” is or consists of is a matter of opinion. The United States is an aggregate of places and peoples from many diverse places and cultures, often with diverse and even conflicting histories of law and practice. So even if “natural law” were a legitimate doctrine, there is no way to make a principled choice between the many historical backgrounds that are available.

Some, such as Justice Scalia in the Heller case, have arbitrarily chosen English practices and law from the early 18th century as the natural law used to justify a major change in US Constitutional law. Yet only a very small portion of the US was ever part of England. Indeed much of the land and States of the US are derived from regions formerly held by Spain, Mexico, France, the Netherlands, Russia, and others, that never had the “natural law” practices exhibited by that decision.

The Constitution’s supremacy clause of Article VI should be clarified to reflect that our Constitution is not an overlay of some arbitrary background of law or practice.

Of course judges and legislatures are free, as they have done for generations, to recognize the wisdom of those who have gone before us. Courts and legislatures can look at prior practices and the logic behind those practices and, if it seems fit and proper, to create new laws that adapt that past wisdom to the present day. But we should not give authority to arbitrarily defined and selected dead hands from the past.

Give More Independence To Certain Agencies Such As The Justice Department

Our recent experiences have shown that certain Federal agencies and departments, particularly the Justice Department, the Treasury, and the Department of State can be dominated by a President to the degree that they become political extensions of the President.

Not long ago the structure of the Consumer Protection Agency was ruled by courts to be too far removed from Presidential control

Our country is much more complex than it was in 1788 when the Constitution was ratified. The old rubric of three-parts, Legislative, Executive, and Judicial, in practice, has expanded to encompass an administrative/regulatory branch. That informal branch is of prodigious size and scope, yet it is largely under the control of one person, the President.

It is time to recognize that the three-part solution of the eighteenth century no longer is adequate for the twenty-first century.

We are not ready for a wholesale rewrite of our Constitution. But we can recognize that certain existing administrative agencies and executive departments are special and require a degree of insulation from political forces.

To that end I suggest that Congress be given the power to designate certain Federal agencies and departments as “Independent”. Such agencies and departments would not be under the Executive except as provided for by Congress. Congress would require, of course, to be granted the power to enact any necessary and proper legislation.

This would be a big change to current practice. A large number of political, economic, and legal choices would have to be made. Specific proposals require much more and much deeper thought than are appropriate for this note.


  1. I had originally used the term Second Reconstruction. I had not realized that there was already an established use of that phrase. So I changed this to “New Reconstruction”.

  2. I wish to thank Jennie Dusheck, Chris Wellens, David Steele, and Steven King for many useful suggestions both editorial and substantive.