It might seem unlikely, but the bizarre and in many ways unprecedented presidential election this country is struggling through may provide an opening for bipartisan action in an area that rarely sees change: presidential powers. Regardless of the outcome, there will be huge swaths of dissatisfied voters in both parties who are deeply worried about what will happen if certain people win the general election.
Part of this concern is overblown, as the political media tend to focus on the presidency to the exclusion of all else. Even though many only pay attention to the presidential race, the truth is that who serves on your town council or in your state legislature can often have a more immediate impact on your day-to-day life than who sits in the Oval Office. After all, the powers of the presidency are balanced by the powers of Congress and the courts — at least, that used to be the case.
The difference today is that President Obama has emphasized his ability to govern with a “pen and a phone” rather than even attempting to work with Congress. He hasn’t negotiated many bipartisan deals, as his predecessors did on a variety of issues. Instead, his major accomplishment was rammed through on a partisan vote when Democrats controlled Congress. Recently, his approach has been to do as much as he can without legislation. Unfortunately, he has set a dangerous precedent.
That’s why now is the time for Congress to consider taking steps to pare back presidential powers in general to prevent future abuse. One of the first ways they can do this is by limiting the effect of executive orders. As it stands, presidents have a great deal of leeway and little accountability when it comes to executive orders. Congress could change that by putting a time limit on executive orders — say, six months. After that time period passed, the orders would have to be either approved by Congress as legislation or their authority would lapse.
Congress could also require that executive orders (and perhaps their lesser-known little cousin, executive actions) be published for a certain amount of time before taking effect. This would allow the public to weigh in on them, just as they do with legislation being considered by Congress. Members of the public could offer testimony, and the public could be confident that the president truly gave thoughtful consideration to his actions.
Another area where Congress could pare back the powers of the presidency is recess appointments. When the U.S. Senate is not in session, the Constitution grants the president the authority to fill positions that are normally subject to Senate confirmation for a limited amount of time without the Senate’s consent. In recent years, recess appointments have been a source of controversy, as Obama has used that tool to get around the Senate confirmation process. The best way for the Senate to limit this would be to subject fewer positions to Senate confirmation. They’ve taken some steps in that direction but haven’t gone nearly as far as they could. If members of Congress were worried about leaving too many positions to the discretion of the president, they could change who makes the appointment as well.
If you think paring back the powers of the presidency is a partisan overreaction, consider how Donald Trump might use these powers — or what new powers he might invent for himself. If we can’t stop dangerous demagogues like Trump from winning, the least we can do is make sure he — or someone even worse, whether on the right or the left — can’t do fatal damage to the country while in office.
Indeed, we owe that much to future generations.