Friday, July 25, 2014

Less like a president than a king

The Supreme Court ruled recently in a rare unanimous decision that President Obama exceeded his authority in making three appointments to the National Labor Relations Board.  The ruling was reflective of a long brewing constitutional conflict – the unchecked expansion of federal executive power.

Executive power expansion began soon after the republic’s inception and accelerated in recent decades to a new level.  The core constitutional “balance of power” principle may be at risk.

Arthur M. Schlesinger Jr. authored “The Imperial Presidency” in 1973 and coined a phrase that is increasingly used to describe presidents since Reagan.  A Google search for “imperial presidency” returns 84,000 hits for Reagan; 130,000 for Clinton; 188,000 for Bush (may capture both); and 225,000 for Obama.

Executive power growth in recent decades has been enabled by a failure of Congress to assert its authority, diminished secretariat independence, the vesting of the bureaucracy in executive power growth, and the coopting of the media.

A modern shift in congressional loyalty from the institutions of the House of Representative and Senate to political party has permitted an uncontested expansion of executive power.  In the past the Congress, in a bipartisan manner, rabidly defended its constitutional authority and prerogatives from the encroachment by the executive branch.

In 2007 the New York Times editorial board extolled the danger of growing presidential power, and encouraged congressional assertion of its authority stating, “Members of Congress should not be intimidated into thinking that they are overstepping their constitutional bounds. If the founders were looking on now, … it is George W. Bush, who would seem less like a president than a king.”  The concern remains valid today, but the cast of characters have changed.

In the past the secretariats were viewed as a counterweight to the Executive Office of the President.  Secretaries were often noted authorities who possessed independent clout and stature independent of the president. In recent decades cabinet secretaries and their appointee subordinates are often political sycophants or political allies whose stars are tied to the president.

John F. Kennedy selected his brother as Attorney General.  Richard Nixon selected his campaign manager who later went to prison.  Their loyalty to the president was greater than their devotion to the law.  The Department of Justice in particular should be more independent and subject to oversight by the Congress.

The federal bureaucracy has grown so large and powerful that it is now often called the fourth branch of government, but it no longer offsets the power of the president.  The Washington bureaucracy is more partisan and its fate is tied directly to the preservation and expansion of the executive branch.   Washington D.C. and its surrounding suburbs and workforce are the richest in America and have a vested interest in sustaining and growing the federal executive branch.

The declining resources of the traditional media to conduct independent and rigorous inquiry and analysis results in a dependence upon the executive branch for access and news feed that serves the growth of the executive branch. The traditional media have become a part of the political and cultural elite that lives in the same communities with and socializes with the very same government officials and lobbyists they were intended to watch with a critical eye.

Every American, regardless of affiliation, has an interest in ensuring a balance of power is maintained in our federal government.  The ever expanding power of the executive branch of government is a threat to constitutional principles and liberty.  It is in the interests of all Americans to restore balance, regardless of political alignment with a sitting president, or the legislative branch will become irrelevant and the president more akin to a king.



    1. William P. Marshall wrote in the Boston University Law Review in 2008 an instructive essay titled “Eleven Reasons Why Presidential Power Inevitably Expands and Why it Matters.” He asserts that the expansion of presidential power is unquestionable and results from “technological, social, and legal changes.”

    Marshall describes eleven factors influencing the growth of presidential power and provides some recommendations for action to slow, but probably not stop, the expansion:

    1) The role of executive branch precedent should be reconsidered.
    2) Promote Department of Justice independence.
    3) Combat executive branch secrecy
    4) Congress should pursue its institutional obligations
    5) We all need to stop reflexively supporting as constitutional the actions of the president we support

    2. If one or both houses of the Congress see their loyalty more to their party than to the institution to which they were elected there will be no counter balance to the growth of presidential power. If Congress is a rubber stamp for the president or it does not exercise its power to counterbalance the president it will soon be powerless and it will not matter who controls the bodies.

    3. Executive Orders have been used by presidents since George Washington to direct the executive branch in the execution of direct constitutional powers and laws. Executive Orders have taken a prominent role in the expansion of presidential powers particularly since Lincoln. The volume itself is concerning, but the cumulative effect and the invoking of precedence have contributed to a primacy of the Executive that is counter to the founding principles.

    Most disturbing is the use of Executive Orders to end run the Congress. Presidents increasingly are using the Executive Order in place of the passage of laws to implement their will.

    The American Bar Association (ABA) criticized George W. Bush in 2006 stating, “The president’s constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal.” One would assume the ABA intended this caution to all presidents.

    4. Signing Statements were used by presidents early on in the republic, but they were not used frequently until the Reagan administration. Each president since Reagan has used the signing statement to note their objection and stated power to ignore some or all of a given law as they assert a Constitutional power that is not evident to most.

    5. The people working in the Washington bureaucracy, often called the fourth branch of government, are overwhelmingly Democratic. Washington D.C. has a Democratic voter registration of 75% and voted for President Obama in 2012 by over 90%. The suburbs of Virginia voted Democratic in the 2012 presidential election from 60 to over 70%. Montgomery County, MD voted 71% for President Obama in 2012 and Prince Georges County, MD voted for him with an astounding 90% of the vote.

    6. The House of Representatives is considering a lawsuit against President Obama for failure to faithfully execute the Affordable Care Act. Regardless of one’s political alignment on this issue, there are important constitutional issues to be considered. In particular, “what is the limiting principle of the president’s discretionary authority in implementing the law?” A very interesting CSPAN covered hearing in which lawyers for and against provided testimony is available at

  2. President Obama signed Executive Order --Fair Pay and Safe Workplaces on July 31, 2014 . This Executive Order is no more than a give away to labor unions and trial lawyers. A critique in the Wall Street Journal of 9 August is worth reading, "With the stroke of a pen, the President rewrites federal labor laws ." It will surely achieve three things, 1) the bureaucracy will increase in size, 2) the taxpayer will pay higher costs for any federal project or service, 3) fewer companies will do business with the federal government as they see the cost and complexity of compliance to be too great.

  3. The NYT reported on 8/27/2014 that President Obama intends to pursue binding international agreements to reduce carbon emissions without a treaty that would require U.S. Senate confirmation. There are many issues associated with such action described in the article. Once again, unable or unable to build coalitions in the legislative branch the President opts for executive action that may be unconstitutional.

  4. President Obama issued several executive orders as part of his Immigration Accountability Action on November 20, 2014. Information related to this can be found at This action, regardless of the policy value, is a major exercise of executive power that further consolidates power in the executive branch. As stated in this blog post and others this trend is dangerous and has just traversed a new and more expansive path. Those who support the action will likely one day regret the day of its signing. Another president of the future, not supportive of their views, just got a lot more powerful and they will feel the effect of that power.

  5. This is an interesting opinion piece by George Will in the Washington Post on 3/6/17 titled, 'Big Government is ever growing - on the sly' on the dispersing of the federal workforce to states, private companies, and non-profits.


Comments to blog postings are encouraged, but all comments will be reviewed by the moderator before posting to ensure that they are relevant and respectful. Hence, there will be a delay in the appearance of your comment. Thank you