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President-elect Donald Trump has announced plans to use a range of executive powers to quickly achieve his sweeping agenda once he assumes office in January. While some see this as an unprecedented attempt to bypass legislative checks, many of his proposed tactics are authorized by Congress and have been employed by previous presidents as well, explains University of Michigan-Dearborn Professor of Political Science Mitchel Sollenberger. Sollenberger discusses the conditions that have led to such widespread use of presidential powers and what it may take to begin to rein in their use.
Sollenberger is the author of four books examining the reach and limits of executive powers: The Unitary Executive Theory: A Danger to Constitutional Government (with Jeffrey Crouch and Mark J. Rozell), The President’s Czars: Undermining Congress and the Constitution (with Mark J. Rozell), Judicial Appointments and Democratic Controls and The President Shall Nominate: How Congress Trumps Executive Power.
President-elect Trump is pledging to use a range of executive powers to achieve his agenda. While there are concerns about potential overreach, Trump's expected approach is rooted in long-standing practice, correct?
That’s true. The use of broad executive powers — war powers, signing statements, executive orders, executive privilege, and czars — is a trend that began long before Trump, Obama or Bush came into the White House. With each new administration, there is typically a ratcheting up in the scope of certain power claims, which has become the norm for all presidents regardless of political party. What sets Trump apart is his aggressive approach and distinctive style. I believe style, rather than the exertion of power, is more significant when assessing Trump. Is Trump’s chaotic style that lacks a sense of decorum and decency exhibited during his first term unusual? Yes, but that doesn’t constitute an extraordinary exertion of power that falls outside the typical “ratcheting up” of authority seen in nearly all modern presidents.
One might not agree with Trump’s policy objectives, and a good example of this is the so-called “Muslim Ban,” which was a series of executive orders to restrict travel to the United States from several countries which the Trump administration deemed had predominantly Muslim populations. You had people protesting at airports and advocacy groups going to federal courts trying to stop the ban. With the legal challenges, the administration adjusted its orders but, ultimately, the Supreme Court — in a narrow 5-4 decision — said that Trump’s actions were perfectly within his sphere of influence when it comes to national security. There's a lot of discretion that executive branch officials have in this area, particularly the president. And that's why, when people worry about the president doing x, y and z, they need to understand there's an underlying legal rationale that justifies these power claims, and it's built up over 100 plus years. This didn't happen overnight.
Say more about that buildup.
One could trace the foundation for the modern presidency back to George Washington who helped establish confidence in the office. However, the clear delineation towards what we now consider the “modern” presidency came with Teddy Roosevelt and Woodrow Wilson in the early 20th century. These presidents championed a broader view of presidential power, advocating for an executive who did not always rely on Congress or adhere strictly to the confines of the Constitution or laws. Under Wilson, for example, Congress passed the Overton Act, which was World War I legislation that basically gave the president authority to marshal forces in order to put the nation on war footing. However, Wilson used that law in an expansive way to create agencies and positions not authorized by Congress to carry out functions not expressly provided for in law. Those things were unprecedented but set the stage for laws and actions, such as the detention of Japanese Americans, that occurred under Franklin Roosevelt.
For a period of 50 to 60 years — from Teddy to Richard Nixon — norms were broken and presidential power expanded to such a degree that we reached what has been called the “imperial presidency,” a term coined by Arthur Schlesinger. By the 1970s, Congress and the public recognized the excesses and risks of a strong presidency that had become disconnected from traditional checks and balances. The country ended up with a president who thought he was above the Constitution and laws, using, for example, misappropriated funds to expand the Vietnam war, resulting in secret bombing campaigns. Eventually, Nixon thought he was so untouchable he ordered the wiretapping of his political “enemies,” which resulted in the Watergate scandal and the downfall of his presidency.
The “downfall” of the presidency was short lived. Ronald Reagan’s victory ushered in a slow but steady march to expand executive authority in response to what many considered to be unnecessary and unconstitutional overreaches by Congress to constrain the presidency through such laws as the Congressional Budget and Impoundment Control Act, the Ethics in Government Act, and the War Powers Resolution.
Since Reagan, the country has had a series of presidents who have built up power in foreign and domestic affairs in ways that were unimaginable even to Nixon. Congress has done little or nothing to stop this buildup and in some ways actively supports expansive presidential powers. For example, the country is 23 years removed from 9/11 and, still, presidents utilize the Authorization for Use of Military Force, an “emergency” war power granted by Congress, to justify killing people, including American citizens, in countries that have nothing to do with Afghanistan or have any relation to the original premise of the legislation that Democratic and Republican lawmakers were voting to approve back in the early 2000s. So, yes, there has been a buildup and it involves not only presidents “taking” power slowly but Congress also acquiescing or even supporting such power expansions.
Will the ratcheting up ever stop?
I think history shows clear examples where countries and people grew tired of tyrants. You have chief executives throughout time who have exerted power and the other side, the legislative branch or the people, has taken it away. Julius Caesar comes to mind. The Glorious Revolution in English history resulted in King James being removed and the establishment of a stronger parliament. If you look at executives pushing their power limits externally there are clear examples in Hitler and Mussolini with both ultimately losing to Allied forces. I’ve spoken of Watergate, but that’s not been the happy precedent that many believed it would be.
Partially, the failure of the constraints placed on presidents post-Watergate is the result of how fundamentally important the presidency has become in modern politics, not just in terms of power growth but in changes to the political party system which has become much more centralized in presidents and less dispersed among various factions and party leaders. Some of this was the result of "populist" reforms under the McGovern-Fraser Commission which, in my view, has resulted in a more top-down approach to campaign and governing. For example, whether you look right after Nixon or right after Trump's first term, what we see in the succeeding election are presidential campaigns with candidates who aren’t concerned about presidential power but, instead, promise the moon to the public and claim that they will fix the economy, housing, etc. so the public's hopes grow even more for some transcendent leader who will do all those things and finally fix a government that is either too corrupt, too inept or too unresponsive. In such a world, there is no room for a restrained vision of the presidency.
So, what will it take to rein in the broad use of executive powers?
Short of a complete overhaul of the governing system through a constitutional convention, a more gradual approach is likely needed to shift away from executive-centered politics and governance. This shift should be a long-term process aimed at decentralizing power and fostering more inclusive, deliberative policymaking that emphasizes collective decision-making over top-down leadership. Some of this would have to happen through the passage of laws, but more is cultural and norm-based within government. However, for any reforms to gain traction and be taken seriously, there must be a fundamental shift in the public’s perceptions and expectations. People need to genuinely believe that their concerns will be addressed by a new model of governance — one that moves beyond the over-reliance on the executive branch.
The current expectation is that the executive, whether the president or a governor, will provide solutions to public policy challenges, but this model has often proven inadequate and divisive. The system needs to evolve into a structure where policymaking is more collaborative, with a focus on legislative action, local governance and citizen participation. Without a shift in mindset and the development of trust in such a system, reforms of the presidency will likely fail or at best be ineffective or superficial.
President-elect Trump is also talking about making recess appointments. What do you think the likelihood is that we’ll see cabinet appointments made while the Senate is adjourned?
I’m a hopeful person so I think the likelihood is quite small. That has a lot to do with the failure of Rick Scott to win the Senate majority leader position. With John Thune’s victory, the Senate has a traditional, establishment-type Republican who doesn’t seem likely to dismiss long-standing Senate prerogatives like ensuring senators are vetting and confirming a president’s cabinet nominations. But I’ve been wrong before, so don’t think you can take me to Vegas with my predictive powers.
As for the recess appointment issue, to give a bit of a background, in the early 2000s, George W. Bush recess-appointed a couple of judges, and it incensed the Senate. And ever since then, the Senate hasn’t given presidents enough time to recess appoint anyone. This stayed true under Obama, who tried to force a recess appointment but ended up losing his fight in NLRB v. Noel Canning — a 2014 Supreme Court case dealing with the president’s recess powers — and it's been true ever since. What the Senate has done over the last 20 years is have just a couple senators come in during a long holiday weekend or whenever the Senate is going on break and they will briefly bring the Senate into session for a few minutes, and then take it out of session. These are referred to as “pro forma” sessions and that's the way the Senate gets around the adjournment issue to prevent recess appointments.
The confirmation of presidential appointments is one of the things the Senate holds dear and is one of only a few areas where we have seen any pushback against presidential power grabs in the last few decades. Now, the Constitution allows for recess appointments, so if the Senate is adjourned for a time, can President Trump do it? Yes. But is the Senate likely to be in adjournment? I don't think so.
What does this say about our democracy, that our Senate is holding makeshift meetings to keep the president — whomever that president may be, not just Donald Trump — from doing an end run around them?
I think the Senate holding these “pro forma” sessions is a good thing for governance as it signals that some lawmakers still see Congress as a co-equal branch of government and are unwilling to simply acquiesce to presidential power. However, more broadly, members of Congress are much more divided ideologically than they used to be, which limits the opportunities for cooperation and compromise where Congress can contribute effectively to policy solutions. What people often see is constant partisan infighting and the failure of Congress to get things done which, understandably, leads us back to this pursuit for a “savior” in the presidency.
Unfortunately, the parties are now so ideologically divided. There used to be moderate Republicans, moderate Democrats, and, even in the Obama administration, early on, there were a good number of “Blue Dog” Democrats who were considered moderate to conservative. After the passage of the Affordable Care Act, I think over 20 lost their election and got replaced by conservative Republicans. And the same trend has occurred in the Republican party, where moderates like Chris Shays or Mike Castle, both defeated over 10 years ago, no longer constitute a significant minority of the party. Today, both parties have little to nothing in common that can help bridge the huge ideological gap, which is why you hear so much about polarization and see the results of it through so many party-line votes.
How has this polarization impacted politics and elections?
Of course, polarization is not just within Congress, but within the electorate. And you're seeing more of this divisiveness, a lack of decorum and social norms and graces that have gone to the wayside. But, most importantly, you see people looking for answers to basic policy problems they face. Answers that have not yet come so some may see that as a failure of the governing system. When systems fail, people are more susceptible to extreme actions, whether that be through ratcheting up executive power claims or implementing extreme policy solutions.
It’s important to recognize that susceptibility to extremism isn’t necessarily an individual failure, but I think, rather, a natural response to deeper, systemic failures in our political and economic systems. What's causing them isn't presidential power for presidential power’s sake. Things like recess appointments only matter if there are other things that are failing us. When people are living paycheck to paycheck and can no longer afford groceries and basic necessities they could just a few years ago, it’s understandable that they see their situation as a problem that demands urgent attention and solutions. The populist movement that started in 2016 under Sanders and Trump resurfaced somewhat in this election. For reasons ranging from the Democrats’ incumbency disadvantage to messaging and policy issues, more people were convinced that Trump could more effectively deal with their problems. Moving forward, as the losing party, Democrats need to regroup and assess what went wrong. However, both parties must grapple with the changes taking place in the electorate and what that means moving forward, not just with elections but governance.
