Apparently, Dick Cheney is not the only one who thinks the president has ceded too much of his power since the 1970s and has become too week vis-à-vis the other two branches of American government. Now on the other end of the political spectrum, Steven Rattner, a Wall Street executive and former Obama Treasury Department official who helped engineer the president’s bailout of huge, irresponsibly managed American auto companies, has echoed Cheney in a recent New York Times opinion piece: "The assault on presidential authority dates from at least the early 1970s, when a mix of the Vietnam War, Watergate, and a mushrooming executive branch raised fears of an ‘Imperial Presidency.’" Since some on the left and some on the right agree with this premise, it must be true, right? Wrong. Compared to the Europeans, Americans are not good at remembering their history, and Cheney and Rattner, better than most, only remember back to the 1970s and even then, their memories are cloudy.
During that decade, Congress did push back some on the huge executive aggrandizement of power throughout American history, vis-à-vis the other branches, in major areas: the war power, the budget, and international agreements. Yet all of these congressional clawbacks were temporary or have been almost inconsequential.
Rattner mentions the War Powers Resolution of 1973, which was designed to limit the ability of the president to sustain wars on his own without congressional approval. From the Constitution and the debates at the Constitutional Convention, however, it is clear that the nation’s founders gave the Congress sole war-making power unless the country was under direct attack. Beginning with Harry Truman’s abuse of the Constitution when he did not seek a congressional declaration of war for the Korean "conflict," such declarations have become so yesterday. As we have seen from post-1970s U.S. military action-for example, Reagan’s invasion of Grenada and premeditated provocations of Libya, George H.W. Bush’s invasion of Panama, Bill Clinton’s escapades in the Balkans, and Obama’s more recent attack on Libya-the War Powers Resolution has been largely ignored and has been a failure in restoring congressional war-making power.
In the 1970s, Congress also set up its own budgetary process to counter executive encroachment on one of its other primary functions under the Constitution, which had eroded since President Warren Harding introduced a unified executive budget in the early 1920s. Yet the executive branch has gotten so mammoth-98 percent of all federal employees work for the president-that Congress usually changes the budget the president submits only at the margins. Congress has also allowed its constitutional powers to be abrogated by passing vague laws and allowing the executive to take the political heat in implementing them. Avoiding such responsibility helps when members of Congress try to get reelected, which they almost always do, but it is lousy for the republic, because they are eroding valuable legislative checks on executive power.
The third area in which Rattner sees congressional resurgence is that since 1970s, Congress has insisted that the text of any new executive agreement signed by the president with another country or countries be sent to the legislature forthwith. Nevertheless, Rattner argues that the authority for the president to enter such agreements has remained in place and notes the thousands signed by Bill Clinton and George W. Bush and the hundreds inked by Obama. Yet the Constitution does not mention executive agreements at all-instead requiring formal treaties, which must be ratified by a two-thirds majority in Congress. Yet 94 percent of all U.S. arrangements with foreign nations are executive agreements, not treaties.
The recent congressional action demanding that Congress examine and vote on any U.S.-Iranian nuclear agreement seems to have triggered Rattner’s piece. He says Congress’s bludgeoning of Obama into ceding his "prerogative" to enter into an executive agreement with Iran casts a pall over the legality of his recent executive orders on immigration, climate change and other issues. Yes it does, because guess what, executive orders are not mentioned in the Constitution either! One can make an argument that the Constitution does allow the president to implement and execute the laws passed by Congress, and therefore he needs the narrowly defined power to issue executive orders to do so. However, Obama and other recent presidents have gone far beyond that. Obama’s justification for issuing an executive order that somewhat liberalized immigration said that he had to act because Congress wouldn’t. Under the Constitution, presidents are not allowed to legislate using executive orders, just because Congress, the only body allowed to legislate, chooses not to act (even on laudable issues like immigration reform, which this author supports).
Also, instead of "bludgeoning" Obama over the Iran nuclear deal, Congress is whipping him with a feather. Congress is artful at pretending to do something when it’s not doing anything of consequence. Senator Ron Johnson (R-ND), impressively introduced a measure to make any nuclear agreement with Iran a treaty, which would require a two-thirds vote in the Senate for approval. He shouldn’t have had to do this, because under the Constitution, any arrangement with a foreign nation, no matter how minor, should already be a treaty. (The measure, even if offered, will not pass, which may be why Johnson introduced it.) Instead, inverting the Constitution on its head, Congress has arranged it so that it will need two-thirds vote to override Obama’s veto of congressional disapproval of any such nuclear agreement. Thus, Obama would need to get only 34 senators to sustain his veto and preserve any agreement-an easy task. Congress would get to vote on the lifting of economic sanctions on Iran but if it didn’t vote to do so, U.S. business would be at a tremendous disadvantage after any agreement, because the Europeans and the United Nations Security Council could lift their sanctions.
Congress is thus asserting its role, but only with smoke and mirrors. I predict that any final agreement with Iran will raise a lot of fuss among Republicans and even some Democrats, but will eventually go through. Like immigration reform, I support a verifiable nuclear agreement with Iran, but I do not support the unconstitutional road to get there.
On the nuclear agreement with Iran, Obama’s acquiescence to Congress’s charade of relevancy reminds me of the Roman Empire, where emperors continued to pay due respect to the Senate, long emasculated from its glory days during the Roman Republic, but where everyone knew who was really running things.
