The three independent branches of government were created as a limit on each other to prevent overreach, and most importantly, to prevent the infringement of the self‐governance of the people.
Unfortunately, over time our government has inserted itself in so many aspects of our lives, balance has become a mere theory.
The Legislature has generously appropriated its tasks to the executive branch to agencies that have willingly accepted. The judicial system is no longer a source of constitutional truth but a political tool that declares laws instead of interpreting them.
The executive branch has grown exponentially since the government’s inception, with presidential power exceeding that of Congress. As we know from Civics 101, the Legislature’s duty is to create laws while the Executive’s is to execute them.
This separation of duties seems simple and straightforward; as long as each branch stays in their lane, the process of declaration and law creation is at a safe distance from authoritarianism.
A prominent example of how the executive branch has grown beyond its intended capacity is not only the fact that it employs an outlandish 4 million people, but also the uptick in unilateral executive action. “Executive action” is a vague ancillary term that has expanded off of the constitutional concept of executive orders.
Executive orders are nothing new. At a much more limited capacity in the forms of declarations and proclamations, they have been enacted since George Washington. Article II of the U.S. Constitution purposefully outlines the limitations of presidential power to making treaties, filling vacancies, veto power and commanding the military. The Founders knew that overstep of the presidency and the executive branch would lead to a non-functioning government.
Up until the 1930s, Congress held a prominent degree of power in stark contrast to what they hold today. The presidency of Franklin D. Roosevelt, in his dealings of the Great Depression and World War II, drastically shifted the power balance favoring the executive branch. In order to implement The New Deal, which ultimately extended the Great Depression by seven years according to economists at UCLA, FDR signed 3,721 executive orders.
To put that number in perspective, during their presidencies, George W. Bush and Barack Obama issued 291 and 276 orders respectively.
The number of executive orders however, is not the issue; the sheer amount becomes a gateway for further breach of congressional jurisdiction. This breach is the real problem. When the overstep of executive action is unilateral, meaning they take the place of what is supposed to be exclusively legislative action, it reaches the level of unconstitutionality. The New Deal increased the role of government exponentially by blurring the lines of executive action and orders through unilateral overreach that went unchecked.
Presidential imperialism grew in the Clinton era with executive decisions issued by the president that concerned many citizens, as well as those in government; although it was the Obama era that exacerbated the power of the presidency and the executive branch. From his unilateral immigration reform, the DACA executive order, to his Obamacare implementation, then-president Barack Obama was no stranger to going beyond the office’s authority.
The former president famously stated, “We’re not just going to be waiting for legislation to make sure that we’re providing Americans the kind of help they need. I’ve got a pen, and I’ve got a phone.”
Simply put, the executive branch is being used to bypass Congress to achieve outcomes that would not otherwise pass in the Legislature.
Support for increasing executive control is fair weather. The party affiliation of whoever holds the presidency largely dictates the view of executive action.
There has been no better example than the comparison of the Obama and Trump presidencies. Donald Trump inherited an office with executive power unknown to previous administrations. Those who condemn the executive orders of President Trump as overreaching are the same people who stayed silent throughout Obama’s tenure.
When Trump issues tariffs, allocates funding, and proposes executive action on the border, he is not beyond the precedent set by the commanders before him. This is not a defense of overreach. This is a disapproval of those who sat by and watched the executive branch grow above its scope of limitations and did nothing as it benefited their party’s agenda.
You cannot tolerate the level of executive abuse in one administration and then develop an intolerance to it in the next. There needs to be a consistent standard; any bypass of Congress should be condemned on both sides of the aisle. Any alteration to the balance of power is a loss for the people, not just one political party. Self‐governance relies on the equilibrium of authority.
If presidential authority stays a politicized tool and Congress remains stagnant in the executive’s usurpation of power, there will never be a return to balance. Separation of powers have long been tilted in favor of the Executive with backing from the courts as long as they are stacked in favor of the party in the White House. All three branches of government have been complicit in the imbalance of powers, which aids in separating the will of the people from their own power.
The only way government is keeping up with its unwarranted growth of power is to swell up in size. Delegation has run rampant; there are over 430 agencies, departments and sub‐agencies in the federal government. Partisan fighting and inefficiency has followed this massive increase. We talk about “draining the swamp.”
Well, this continued expansion is the swamp. Congress has the constitutional grounds but not the stamina to shift the power back and away from presidential imperialism. The courts have the power to interpret the law and bring back the checks on executive authority.
Each would entail the federal government deciding to limit the scope of its own power and truly be for the people.
Published On: The Western Journal