It is the legal theorists working for our most recent Republican Administrations who have most vigorously championed presidentialism as an accurate reading of what our constitutional framers historically intended. The historical record does not show presidentialism as good practice, however. We frequently find that unilateral presidential authority prompts a narrowness in consultation, and a rigidity in outlook that break down the quality of executive decision making. Presidentialism operates in a way that undermines other values, such as allegiance to the rule of law and respect for coequal branches and divergent political outlooks.
But how did we get here? Congress has been ceding its traditional authorities to the executive branch. One example is the exercise of emergency powers, an executive branch activity that has become unchecked. At the moment, there are nearly three dozen declared emergencies and Congress has only voted on one of them, with the longest-running emergency dating back to 1979. A declaration of national emergency can give the president more than 100 different powers derived from a variety of laws. Administrations that are hyper-partisan have been able to use emergency powers with little to no input from Congress. Given the number of emergency powers available and how impactful those powers can be, congressional oversight of them is vital.
In short, emergency powers can make the presidency imperial if unchecked. To complicate things, the mechanism that allowed a congressional majority to end an emergency was deemed unconstitutional by the Supreme Court in 1983, thereby effectively the check on executive authority in the law. Congress never reviewed an emergency until 2019. Rather than allowing emergencies that are no longer necessary to lapse, successive administrations have routinely and serially renewed ongoing emergency declarations.
The Brennan Center for Justice has compiled a list of 123 statutes that enable the president to circumvent ordinary lawmaking processes upon the declaration of a "national emergency," That is asking for authoritarian/dictatorial rule.
Congress has been steadily losing its power for generations. The reason is the growth of the executive branch from a small operation as intended by the framers of the Constitution into permanent military operations, extensive departments and regulatory agencies, and a large staff that attempts to direct it. Throw in a hyper-partisan congress and the result is that politics becomes more focused on counting wins or losses for the party of whoever is president at the time.
Congress has freely allowed its own authority to lapse or crumble on impeachment, on war powers, on oversight and on budgetary matters. And that power has shifted to the executive branch. Congress, by failing to enforce its own prerogatives, is effectively rewriting the Constitution.
But while history has tolerated initiation of military conflicts without formal declarations of war by the legislative branch, Congress is not out of the war-making. The Constitution gives Congress the power to appropriate money to the military. There was no standing army or navy at the time the Constitution was ratified, so a president of the early 1800s would have had to consult Congress to use military force, a formal declaration of war. According to a study conducted at Brown University, the United States has "spent and obligated" nearly $5.9 trillion in post 9/11 wars, which have contributed to approximately 500,000 civilian and military deaths. The U.S. has been fighting al Qaeda in Afghanistan without interruption for 18 years and while its activities have expanded to 39 percent of the world's nations. Congress has let this happen.
Congress has also weakened itself by allowing the president to flout its appropriations power by simply declaring a national emergency, and then diverted funds appropriated for other purposes.
Because congress has relented and subjugated itself to ones it is not supposed to (see my article A case against the Congress of the Unites States of America), we have opened the door to presidents who crave power, control, and are subject to avarice, and hyper-partisan politics instead of what is best for us. Every subsequent executive has stressed and strained what the previous one has, further building a power that was never intended to be there.
We need an executive branch that believes in a limited executive branch. Without one, our nation has the highest debt/deficit, bloodiest history (been in military conflict for 225 out of the 244 years it has existed), and a presidency that is more about optics than what is actually needed. We need a presidency that remembers it works for us, not the party, personal interest, the people.
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