Notice & Comment

Reining in the Presidency Requires Limiting the Scope of Federal Power, by Ilya Somin

*This is the twelfth post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here.

Peter Shane’s Democracy’s Chief Executive is a formidable challenge to much conventional wisdom about presidential power – particularly, but not exclusively, on the right. At the very least, it casts serious doubt on traditional originalist arguments in favor of an executive that is both “unitary” and endowed with broad substantive authority across a wide range of issue areas. He also explains how presidential power in many domains has exceeded constitutional bounds, and grown to dangerous levels. While I am not fully persuaded by his critique of the unitary executive, it has to be acknowledged that he has made important points. 

Other participants in this symposium are probably better able than I am to assess Shane’s analysis of text and original meaning. In this essay, I advance two points, one an extension of his thesis, the other a critique. The former focuses on presidential efforts to usurp Congress’ power of the purse, an issue largely ignored in Shane’s book. The latter focuses on the tension between Shane’s support of relatively tight limits on presidential power and his largely uncritical endorsement of broad views of the total scope of federal authority under the Constitution, particularly under the Commerce Clause. The same point applies to his rejection of constraints on Congress’ power to delegate regulatory authority to the executive.

While Shane notes several other ways in which the Trump Administration pushed beyond previous limits on executive authority, he overlooks its usurpation of the spending power. Using a variety of executive orders, lawsuits, and Justice Department policies, the administration repeatedly sought to impose conditions on federal grants to state governments that were not authorized by Congress, in order to force “sanctuary” cities and states to help round up and deport undocumented immigrants. 

Had these efforts succeeded, they would have set a dangerous precedent under which the executive could both subvert congressional control over spending, and use it as a stick with which to force dissenting state and local governments to submit to his policy preferences. Fortunately, most of these efforts were defeated in court, including in decisions written by conservative judges. Still, future presidents might potentially leverage vaguely worded statutes to coerce states more effectively than Trump did.

Trump also famously tried to use a national emergency declaration to divert military funds to the construction of his border wall, despite Congress’ repeated refusal to fund this project, as he wished. The border wall diversion was eventually ended by a combination of congressional action and President Biden’s decision to terminate the effort, which happened before the Supreme Court could take up the issue. But here, too, future presidents could potentially build on Trump’s efforts, and execute similar diversions with greater skill.

Most recently, President Biden has used Trump-like exploitation of emergency powers to forgive hundreds of billions of dollars in student loan debt – an action with many parallels to Trump’s border wall diversion, including the highly strained nature of administration claims that the policy has statutory authorization.  At this point, the administration’s legal strategy seems to rely on the hope that no one will have standing to challenge its actions.

Should Biden prevail here, it would set an extremely dangerous precedent for future executives of both parties. Executive usurpation of the spending power – especially if pursued on the enormous scale attempted by Biden – would give the president a powerful stick with which to reward allies and punish political adversaries, and bend recalcitrant state governments and private interest groups to his will. If the executive can massively reorder federal spending priorities at the stroke of a pen, it also undercuts the democratic deliberation over policy whose importance Shane emphasizes.

While the spending power issue can readily fit within Shane’s thesis that presidency needs to be curbed, his embrace of extremely broad theories of federal power undercuts it. In particular, Shane endorses a broad theory of the Commerce Clause power under which Congress can legislate on virtually any “national problem” (134) citing in support a passage from Gibbons v. Ogden (1824), while overlooking extensive evidence cutting the other way – including passages from Gibbons itself, where Chief Justice John Marshall indicates that the Commerce power has a relatively narrow scope, excluding such things as “Inspection laws, quarantine laws, [and] health laws of every description.”

If the federal government can legislate on virtually anything that might be considered a “national problem” in some sense, we end up with the status quo, in which it can ban the distribution or possession of almost anything (including, in the case of Gonzales v. Raich (2005), possession of marijuana that had never crossed state lines or been sold in any market), and restrict everything from dishwashers to toilet flows. With such extensive regulation of almost every human activity, it is inevitable that much authority will be delegated to the executive, thus giving the president vast power. 

Congress cannot possibly dictate and control the application of such  wide-ranging authority on  its own. The executive will necessarily have to make many of the decisions involved. Indeed, the mere fact that the vast scope of federal law ensures there are far more violators than resources to go after them, by itself ensures there will be enormous executive discretion. In a world where the vast majority of adult Americans have violated federal law (or even just federal criminal law) at one time or another, the executive – in practice – gets to pick which violators to go after and which to ignore.

This, in turn, undercuts the democratic accountability and deliberation Shane advocates. As he recognizes, most voters pay little attention to government and public policy, and often do not even know such basic things as the names of the three branches of government.  Most are “rationally ignorant” about politics; due to the very low likelihood that any one vote will change an electoral outcome, few voters devote more than minimal time and effort to learning about public policy. 

The larger and more complex the federal government, the more likely that most of its functions -including those performed by the executive – will escape meaningful democratic accountability. Indeed, most of the electorate won’t even know about most of them. And the more the president will wield dangerously unaccountable power.

Shane argues that the risks of executive power can be mitigated by allowing Congress to delegate some of it to independent agencies, which – he believes – the Constitution allows the legislature to insulate from White House control, in various ways. He makes a solid case for the idea that some such insulation is constitutional. But, in a world of large and complex government, insulated agencies still wield power with little or democratic accountability. And insulated officials – like the president – can still abuse their authority in all sorts of ways.

Like some previous scholars, Shane emphasizes the potential value of “democratic deliberation” within executive agencies, insulated from White House control. But such deliberation can hardly be considered meaningfully democratic if the vast majority of voters never participate in it, and often don’t even realize it is happening.

Moreover, even insulated agencies are often subject to a substantial degree of White House influence. In most cases, the president appoints some or all of their leadership. The president may not control them to the extent that “unitary executive” theory requires. But he still has substantial leverage over them.

Finally, if Congress has the power to delegate sweeping authority to insulated agencies, it can also delegate similar discretion to the president himself, or to officials subject to his near-total control. Such delegations have been all too common, especially in periods where Congress and the White House are controlled by the same party. Many of the more dubious abuses of presidential power arise in cases where Congress has in fact delegated broad authority to the president directly. Donald Trump’s anti-Muslim travel ban is a particularly egregious example. 

A proper application of nondelegation principles (an issue not considered by the Supreme Court in Trump v. Hawaii) would lead to rejection of Trump’s policy, even aside from its religious discrimination. The same goes for a number of his other harmful immigration and trade restrictions. In 2020, a federal district court did in fact rule against Trump’s effort to exploit the Covid pandemic to suspend most work visas,  in part on nondelegation grounds. 

A stronger nondelegation doctrine would reduce the threat of concentrated executive power, limit the range of issues subject to federal control, and enhance democratic accountability. 

Unfortunately, Shane largely rejects the idea that there should be judicially enforceable limits to Congress’s power to delegate authority to the executive, at least on “regulatory” issues (169-70). He and others who seek to curb presidential abuses and enhance democratic accountability would do well to reconsider that stance. 

In sum, Shane’s book is a valuable and timely challenge to expansive theories of executive power. His analysis can be usefully extended to cover additional issues, such as executive usurpation of the spending power. But, just as his position poses a challenge to conservative conventional wisdom about the unitary executive, it should also lead to a rethinking of left-liberal conventional wisdom about the scope of federal power and the nondelegation principle.

Ilya Somin is a law professor at George Mason University and author of Free to Move: Foot Voting, Migration and Political Freedom, and Democracy and Political Ignorance: Why Smaller Government is Smarter.

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