The Center for Constitutional Rights has been in the forefront defending human rights in the face of government over-reach that undermine Constitutional protections. We are fortunate to have two attorneys from CCR to discuss the threat posed by the unchecked growth of Presidential power. They are Vince Warren, Executive Director, and Omar Farah, Senior Staff Attorney. They deal with such areas as abusive Immigration practices, discriminatory policing, government surveillance, and extra territorial imprisonment at Guantanamo.
Over the last four years there has been a growing concern about the unrestrained power of President Trump. That was a factor in the voting of 81 million people against him last November. He was able to make frequently impulsive decisions with no one in the White House or even Congress or the courts able to hold him to account. The fear was that he was becoming a monarch who believed he was entitled to continue to rule even beyond his four years term.
As threatening as this was to democracy, it was a bizarre extension of a tendency in the U. S. Presidency that has been building for over 70 years. The Cold War fostered a political context where increasing authority was given to the President. This was particularly so in the area of foreign affairs, leading some to worry about an Imperial Presidency. But it also frequently applied to domestic matters. When there is a feeling of insecurity, many seek comfort in authoritarian leaders.
With the opening of the 21st century, fear of communism was replaced with fear of terrorism. With that the Bush Administration ushered in a major expansion of presidential powers that the other branches of government were unable to effectively check. The theory of the unitary executive played a role in this. That is the view that the President has the power to control the entire executive branch. All decisions within it are to be under the control of the President. In the strong version of this theory, neither Congress nor the courts can tell the President what he can or cannot do.
Beyond that, much of what the executive does is through various regulatory agencies, such as the Environmental Protection Agency, Occupational Safety and Health Administration, and a vast alphabet soup of others . These agencies make regulations that govern what can be done in many aspects of our lives. In effect, their rules have the force of law. While Congress establishes these agencies in the executive branch by legislative action, it does not make the regulations themselves. In effect, Congress delegates that authority to the agencies. There is some debate over whether this is constitutional since Article I grants to Congress the exclusive power to make laws. That has led some to argue that the entire “administrative state” is unconstitutional.