Writing in 1908, future president Woodrow Wilson compared the American system of government to the human body, in which the president existed as the brain to direct the movement of the limbs (Congress, the courts, etc.)
His vision would have shocked the Founders, particularly his assertion that the president is “the only national voice in affairs” and so is “at liberty, both in law and conscience, to be as big a man as he can.”
In the first presidential debate to feature a former president squaring off against a current vice president, Americans saw one candidate trying to demonstrate that he hasn’t changed and one trying to convince us that she has become a completely new person. If Donald Trump and Kamala Harris are the brains directing the nation’s body, the American patient may be in dire trouble.
Trump’s temperament, criminality and lack of respect for essential norms and the foundations and institutions of our system — best illustrated by the Jan. 6, 2021, attack on the U.S. Capitol — render him unfit to occupy the Oval Office. And ultimately, it’s Vice President Harris’s thirst for big government and her lack of consistency in presenting her past positions that renders her, too, unfit for election.
Wilson was, of course, one of America’s staunchest proponents of giving presidents expansive powers, allowing his vaunted “big man” to direct a robust state with power consolidated in a strong central government.
It seems unlikely that many viewers watching Harris and Trump go at it on stage in Philadelphia were thinking, “these people need more power.” But America has seen an evolution in the way we view the presidency and what we expect the chief executive to do for us.
The president commands an enormous bureaucracy that wields frightening power over virtually every area of our lives. He or she oversees regulatory agencies that make the rules and then serve as prosecutor, judge, and jury when they claim we’ve run afoul of them. They direct law enforcement bureaus that have made innocent people choose between facing piles of charges at trial or simply surrendering the loss of their freedom. The president also has power over a surveillance state that can burrow into so much of our privacy.
The U.S. Constitution says only Congress can declare war. But in foreign affairs and national defense, the commander-in-chief exercises power and discretion that could well ignite a war or put us firmly on the path to war before Congress ever has a chance to weigh in. A president who doesn’t drop bombs or lob cruise missiles somewhere in the world solely at his or her discretion is now the exception rather than the rule.
Without consulting Congress, U.S. presidents have allowed weapons made and provided by America to be fired on the territory of Russia, a nuclear-armed foe, and used drones to kill senior Iranian military official Qasem Soleimani. Even U.S. citizens have been targeted, as in the case of Anwar al-Awlaki: an American-Yemeni who was killed in 2011 by a U.S. government drone strike ordered by President Obama.
Essential elements of the constitutional architecture envisioned by the framers — a preeminent legislative branch and a modest chief executive, reinforced by a Congress that would safeguard its power and prerogatives in jealous competition with the president — have faded in our modern age. And a large part of the problem is that over recent decades, Congress has become increasingly dysfunctional. Unable to legislate effectively, it fails to play its intended role, and is happy to delegate power and discretion to an executive eager to take it.
The Supreme Court has an important role to play in prodding Congress to do its job and rolling back executive power. Just recently, in Garland v. Cargill (which held that Congress can’t punt the banning of bump stocks to the executive branch) and Loper Bright Enterprises v. Raimondo (which ended the doctrine of deference to administrative agencies the Supreme Court itself invented in 1984’s Chevron case), it appears increasingly ready to exercise that role.
But ironically, the court also hasn’t been shy about expanding presidential power. Most recently, justices granted future presidents immunity from prosecution for “official” acts while kicking the question of what constitutes an “unofficial” act down to the lower courts. Many saw this as a victory for Trump as he attempts to wriggle out of legal trouble related to his exit from office.
Presidents seem loath to loosen their grip on the reins of power. While Harris’s supporters call out Trump as a would-be authoritarian, the Biden-Harris administration has harbored at least some of the same tendencies. As but one example, can’t the current administration’s persistent extralegal and unconstitutional efforts to cancel student loan debt without congressional authorization only be characterized as authoritarian? Or Biden’s proposed new rule requiring automakers to sell more electric cars? Or even his hand-picked Federal Trade Commissioners’ attempts to break up sandwich monopolies?
With our political system continuing to serve up flawed nominees for the nation’s highest office, instead of asking “is this the best we can do?”, perhaps a better question is “why don’t we stop giving presidents so much power?” We need to start insisting that Congress, yes, does its job and begins rolling back the enormous power we’re conferring on presidents who are clearly not “the best we can do.”
Both a body with no limbs and a brain with no body will reach a disastrous end. The American political body must once again begin to act together in unison, with head, limbs and organs all working together in balance.
Peter Goettler is president and CEO of the Cato Institute.
