“Hello, yes, this is the Interpreter of the Constitution and Limits on Presidential Power Switchboard, how may I help you my Friend?
“What’s that? You are suddenly concerned about topics that you’ve been ignoring for the last eight years?
“Well, yes, I’d be delighted to refer you to some 200 year-old and ever-relevant documents.”
Were I to accurately describe the phone calls received – and a bunch of emails, to boot — in the last 48 hours, the words above would accurately depict my role. No, you can’t make this stuff up.
For 12 years, I’ve been trying to get these callers to my monthly Constitutional education meetings in Tucson. Twelve years! I might as well have invited them to listen to me grate my fingers on chalkboard.
But, now, Presto!, suddenly there’s this earnest, passionate need to learn about limits of executive privilege?
Since the Trump victory, I’ve heard everything from, “We are in a Constitutional crisis!;” to, “We are going to have to watch him like a hawk,” and; “He will certainly try to be a dictator.”
No big surprise, actually.
When my team is in power, anything goes. When your team’s in charge, any action is a “Constitutional Crisis.” You better play by the rules or you are an un-American, unconstitutional lawbreaker.
Let’s address those unconstitutional lawbreakers.
Pushing the edge on Presidential power has seemed to be what Presidents do. As in Geico’s brilliant, “It’s What You Do,” commercials, this is what Presidents do. They push to expand their power and fly all over on Air Force One. But, we learn, some push more than others.
Ilya Shapiro, a fellow in Constitutional Studies at Cato Institute, says the Obama administration has only a 45 percent “win rate” at the Supreme Court. The five Presidents who preceded him had averages of 60- to 75-percent.
The Obama Administration’s approach to executive power can be described through another ad campaign, Nike’s “Just do it.” That strategy: Just take the action and see if it sticks, no more thought than throwing spaghetti against the wall. There is little concern if it violates the Constitution. That’s someone else’s job to determine, right?
Obama, as I say, is not the only one guilty of taking these unilateral actions with “a phone and a pen.” He is, however, certainly the worst. Where are the moments during which a President confronts the struggle with what he would like to do and his sworn duty to uphold the Constitution? In Obama’s case, I’d be surprised if it was ever a fleeting thought. Time, instead, is spent thinking about what can be gotten away with.
This “ends- justifies-the-means” thinking should be an abhorrence to any party and it’s a shame that Democrats, with a Trump presidency on the horizon, are only now finding a moral compass back to the Constitution.
Now, then, is the perfect moment for my friends newly-interested in the Constitution-to realize what we actually have in common.
We both want limits on Presidential powers — now. It is, of course, tempting to foist upon them a dose of their own Constitutional trespassing. Yet, vengeance is not the right path or the best path when it comes to building a nation and foreseeing the needs of our children.
With the Legislative and Executive Branches in Republican control, it is time to reestablish Presidential boundaries.
The Legislative branch needs to reestablish itself as the most powerful branch of government. It can start by taking back completely and/or clearly defining the President’s role in the following:
• “Delegated” war powers.
• Treaty making ability.
• Budgeting process and money expenditures.
• Ever-growing and expanding executive orders.
• Unilateral ability to amend law.
• Broad Prosecutorial discretion.
• Using the Executive bureaucracy for political gain or harassment of certain groups.
• Thwarting the rule of law because of personal disagreement with the same.
The list goes on. Most of the topics above ARE spelled out in the Constitution. Yet, Presidents have meandered their way into devouring an ever-growing piece of the pie of power, largely without much kickback from our Legislators. It’s time to take the pie back, right here, right now.
Moreover, penalties need to be established by Congress for meddlesome conduct by the Executive. For example, if a President refuses to execute a law, Congress can mandate the President act or take on that role itself.
Or, if a president unilaterally decides to modify a particular law – think Obamacare– without the Legislature’s authority, it is automatically void without a majority vote of the same.
The best technique? Constitutional amendments would be the best way. In lieu of that, laws passed would at least slow this flow of power to the Executive. Now, it seems to me, is the ideal moment to garner support for this from the gamut of Congress.
For those who believe the Founders intended equal powers among each branch of Government, think again.
The Legislative branch was to hold more. Next, was the Executive, and last, the Judiciary. Read the debates from the Constitutional Convention and the ratification. One thing is certain: the Founders wanted to limit the Executive power. One King George III had been enough.
Do you think our Legislative branch still has the most power as intended? I would argue that, today, it has the least.
Yes, it is time to permanently restrict and limit Executive powers so that, regardless of whom occupies the Oval Office, it matters less. Our nation should not live or die depending on who is at the helm; nor should it list too much one way or the other.
The Legislative branch needs to reassert its rightful role within our Federal Republican form of government. That, I hope, is the lesson derived from my latest 48 hours at the Interpreter of the Constitution and Limits on Presidential Power Switchboard.