The Inevitability of Executive Overreach – Guest Essayist: Kyle Scott
George Washington’s Proclamation of Neutrality, Thomas Jefferson’s Louisiana Purchase, Abraham Lincoln’s Emancipation Proclamation, invasion of the South, and suspension of habeas corpus, Harry S. Truman’s railroad seizures, and the growth of militarism domestically and internationally by George W. Bush and Barack H. Obama are all examples of executive overreach; examples of when the President used powers not given to him by the Constitution or exercised by his predecessor. Executive overreach is neither unique to the American system nor new to our time. Efforts to limit executive control, whether it be an elected president, entrenched oligarchy, or hereditary monarchy, have defined Western political thought and reform since Magna Carta was signed by King John of England in 1215 at Runnymede. The greatest and most enduring thinkers—John Locke, Baron de Montesquieu, Jean Jacques Rousseau—that influenced the political revolutions of the 18th Century and still define the contours of our current political paradigm were concerned with restraining executive authority through the dispersion of political authority. In 1776 the U.S. declared itself independent and proceeded to rid itself of an executive and parliament that had usurped their authority. But no sooner did America win its independence did it seek to reconcentrate power into a centralized governing structure by ridding itself of the Articles of Confederation and ratifying the U.S. Constitution. The responsibility of an enlightened and engaged citizenry is to thwart all efforts of overreach.
Executive overreach in the U.S. does not follow a linear trajectory, but it did begin with George Washington and has proceeded to get worse with each successive President. Each President—with William Henry Harrison perhaps being the lone exception—has sought to expand his sphere of authority thus setting up a precedent for the next President. And once a new zone of authority is acquired it is nearly impossible to wrestle away.
Any student of history will recognize the trend and thus there is no need to do more than mention the few examples listed above. What most concerns this essay is painting in general terms how this happens and what can be done about it. The expansion of executive authority has occurred for several reasons, most of which are common to all incidences of executive overreach in the U.S. or elsewhere although the exact forms will vary from country to country. First, it is far easier for one person to take action than it is for a lot of people. Second, it is politically expedient for members of Congress and the state legislatures to not take action. Third, the most active citizens, the citizens who generally decide elections, can be self-righteous and petty. None of the three causes are isolated from one another but they will be discussed in isolation for concerns of order and clarity. The reader should make note, even if not explicitly noted by the author, how these factors are interrelated and reinforce the trend of executive overreach.
Anyone who has ever eaten a meal knows it is easier to feed oneself than it is to decide where to go with a family of four. The more people needed to decide on a course of action the more difficult it becomes to reach an agreement. The president has the capacity to act alone. Acting alone may be unconstitutional and unethical in some circumstances but he has the capability at his disposal if he chooses. This is also why it is not surprising to see limited opposition to executive overreach by the courts or Congress. The courts are restricted in the cases they can decide in that someone must bring a case to them. Also, courts cannot take unilateral action against the President for fear the President may not carry out their ruling thus neutering the court’s relevance. Moreover, there is little incentive for lower courts to decide against executive action as a judge who goes against the President is unlikely to be considered for a better appointment.
Congress finds it difficult to act against presidential overreach for two reasons. First, nearly half of all Congresspersons are usually of the President’s party and therefore have some affinity for the policy the President has pursued through unilateral action. If a President decides to unilaterally suspend the deportation of illegal aliens Congress will not take actions to stop the executive order given that getting the votes to do so would be impossible. And even in instances where the members of the President’s party in Congress do not agree with his policy position they recognize that direct conflict with the President, if they are of the same party, is not in their best interest personally or for the party.
This leads directly into the second category for why overreach occurs: Congress. On matters where there is not a clear dividing line between parties, where the electorate has not clearly delineated itself on an issue, on controversial matters that are unsettled in the electorate, or on unpopular issues, it is in the best interest of a member of Congress to not take action if they want to be reelected or work their way onto favorable committee assignments. There is no incentive for congressmen and women to take a stance unless it is on an issue where they clearly know where their constituency stands. Moreover, unless it is highly salient outside of their constituency, it does them no good to take a public stance outside of their district or state for the risk of marginalizing themselves within the party apparatus. And in those unique instances where it is safe for a member of Congress to do something it is much easier to say something than it is to actually do something. Getting something done would force one to use their political capital in a way that may not bring about the desired result and benefit them with their home district or state. Moreover, to write legislation, and get enough support to get it passed through both houses, that overrides an executive order would simply be vetoed by the President thus rendering the entire exercise pointless any way. Thus, the most a congressperson can do is limit the money that goes to the President’s plan. But if the President can work his policy through agencies that are funded through revenue streams independent of Congress, even that won’t work.
But, to reiterate the central point of why congress is ineffective at blocking executive overreach, it is politically inconvenient to do so. Congress does not stymie the President’s efforts by blocking avenues he may use in administrative agencies, or any other means at its disposal, is because the next time a member of Congress loses their seat because of some obscure rule promulgated by an administrative agency will be the first time.
To keep it brief, the same dynamics that play out in Congress play out in each of the fifty state legislatures as well. State legislatures have even less incentive to fight against executive or legislative overreach that threatens state sovereignty for all the reasons listed above, albeit in different variants, plus there is a risk of losing some of the federal dollars doled out to the states. Legislatures like federal money as it allows them to spend on programs without increasing state taxes. If states were self-funded, legislatures would have to gut their current programs or raise taxes to a level that was unsustainable. As a result, because elected officials like to keep their jobs, states usually put up futile resistance to national overreach coming from the President or Congress. The result is a collapsing (collapsed?) federal structure.
This, then, leads directly into the final category. Voters like it when politicians vote for their preferred programs and are unwilling to see cuts in the programs they think are important. Among voters there is generally no sense of self-sacrifice or compromise. Every voter feels righteous pushing for what they want with little self-awareness. Those at the top of the political apparatus like to see this sort of in-fighting among voters for it distracts from what is going on at the top. If voters fight amongst themselves then their elected representatives have no need to take bold action which then allows the President to do whatever he wants. Executive overreach is allowed to occur through a classic divide-and-conquer strategy. Until voters can be rational and well-informed, and be willing to work with people on a single issue with whom they disagree on others, presidential overreach will persist. Voters are unlikely to unite around the cause of executive overreach for one of the reasons Congress will not: they like it when their President is in power and dislike it when the President from the other party does it. When a voter looks at congressional gridlock, then sees the President she voted for do something without Congress, even if its overreach, that voter will excuse the President’s indiscretion as she feels the greater good has been served. Voters in both parties are guilty of this and executive overreach will continue until it becomes a unifying issue that both sides oppose regardless of which party occupies the White House. When this occurs the President will feel constrained and Congress will be compelled to act. And that’s the only hope.
There is an unaddressed requirement within our Constitution: Citizens will pay attention and make rational decisions. The Framers recognized that the general population could not be relied upon for good government which is why they established a federal republic rather than a national democracy. The problem becomes that without a public with a cultivated sense of justice and the common good than what we currently have, those who are elected as representatives diminish in quality as well. Those who are supposed to safeguard the structure are not of the quality that can be entrusted with such a task. Until school board meetings have higher attendance rates than high school football games, until more people go to church than watch football on Sundays, or book sales outpace beer sales, until the Kardashian’s popularity plummets and engagement at townhall meetings skyrockets, and until we can move past our own self-righteous indignation of those who oppose us and recognize that the nation’s salvation rests in the cultivation of good sense and goodwill among the populace, and not in a popularly elected official; executive overreach will continue until any semblance of a republic is lost. It is not important that we recognize what is lacking in others and tell them how to improve, it is important that we recognize in ourselves what is lacking and take action to improve.
Kyle Scott, PhD, has contributed to each of the “90 Days” series for Constituting America. His writing has appeared in academic and popular outlets. His fifth book, The Story of Politics, is due out this summer. Kyle teaches political science at the University of Houston and serves on the Board of Trustees for the Lone Star College System. You may find out more about him at www.kyleascott.com or contact him on Twitter @scottkylea or firstname.lastname@example.org.
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