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He has erected a Multitude of New Offices,
and sent hither Swarms of Officers
to harass our people, and eat out their substance.
He has made Judges dependent on his will alone,
for the Tenure of their offices and
the Amount and Payment of their Salaries.
He has kept among us, in Times of Peace,
Standing Armies....

32 Franklin D. Roosevelt 19331945Democrat
33 Harry S. Truman 19451953Democrat
34 Dwight D. Eisenhower 19531961Republican
35 John F. Kennedy 19611963Democrat
36 Lyndon B. Johnson 19641969Democrat
37 Richard M. Nixon 19691974Republican
38 Gerald R. Ford 19741977Republican
39 James Carter 19771981Democrat
40 Ronald Reagan 19811989Republican
41 George H. W. Bush 19891993Republican
42 William J. Clinton19932001Democrat
43 George W. Bush 20012009Republican
44 Barack Obama 20092017Democrat
45 Donald J. Trump20172018Republican
46 Michael R. Pence20182021Republican

The Imperial Presidency

In 1973, historian Arthur Schlesinger coined the term "Imperial Presidency" to describe a presidency that had assumed more power than the Constitution allowed, and had circumvented the traditional checks and balances of the constitutional system. For a time, the Nixon Administration seemed to represent the singular embodiment of that idea. But as the Bush Administration came to a close, there was little doubt concerning the persistence of Schlesinger's notion. More than three decades later, Schlesinger himself characterized the Bush Administration as "the Imperial Presidency redux", although he more optimistically predicted that "democracy's singular virtue--its capacity for self-correction--will one day swing into action."

The Theory of the Unitary Executive was first proposed under President Reagan. Reagan's notion was that only a strong president would be able to dramatically limit big government. Of course, that didn't happen, bu the Theory of the Unitary Executive has been expanded since then by every president, Democrat and Republican alike. On 24 June 2006 the American Bar Association "the president's practice does grave harm to the separation of powers doctrine and the system of checks and balances that have sustained our democracy for more than two centuries."

While several Presidents have used them, the frequency of signing statements that challenge laws escalated substantially, and their purpose changed dramatically, during the administration of President Bush the Younger. According to the ABA, the task force report notes: "From the inception of the Republic until 2000, Presidents produced fewer than 600 signing statements taking issue with the bills they signed. According to the most recent update, in his one-and-a-half terms so far, President George Walker Bush . . . produced more than 800." The report found that President Bush's signing statements were "ritualistic, mechanical, and generally carry no citation of authority or detailed explanation."

The Bush Administration's approach to power was, at its core, little more than a restatement of Nixon's famous rationalization of presidential misdeeds: "When the president does it, that means it's not illegal." Under this view, laws that forbid torturing or degrading prisoners cannot constrain the president because, if the president ordered such acts as Commander in Chief, "that means it's not illegal." Under this view, it was not the courts that decide the reach of the law -- it is the president -- and neither the judiciary nor Congress can constrain him. And where statutory law or the Constitution itself appear to impose obstacles to presidential aims, creative counselors can be relied upon to reach whatever result the president desired.

The President claims the authority to withhold in the public interest information whose disclosure might significantly impair the conduct of foreign relations, the national security, the deliberative processes of the executive branch or the performance of its constitutional duties. Congress consistently attempts to obtain access to the most sensitive executive branch information and is not always receptive to arguments that the executive branch, like Congress and the courts, must enjoy some measure of protection for confidential exchanges of information if it is to function effectively.

It has long been recognized that the President, both personally and through his subordinates in the executive branch, determines and articulates the Nation’s foreign policy. Since the 1970s, Congress has increasingly attempted to assert itself in the area of foreign affairs at the expense of the authority traditionally exercised by the President. The President has the responsibility, under the Constitution, to determine the form and manner in which the United States will maintain relations with foreign nations. One of the checks and balances imposed by the Founding Fathers was the requirement that senior Executive Branch officials be appointed only with the consent of the Senate. In the modern regulatory state the approval of officials by the Senate is one key way to ensure that regulators do not abuse their authority. The Appointments Clause is an essential aspect of separation of powers. By permitting the President or his direct subordinates to appoint the officials within the executive branch, the Appointments Clause helps ensure that those who make policy are accountable to the President.

The President, as the head of a unitary executive branch, has a duty to “take Care that the Laws be faithfully executed,” U.S. Const, art. II, § 3, to coordinate and supervise his subordinates, and to ensure that the executive branch speaks with one voice. See generally Myers v. United States, 272 U.S. 52, 163-64 (1926). The President’s power to remove subordinates is essential to carrying out these responsibilities. The constitutional limitations on congressional restrictions on the President’s removal authority “ensure that Congress does not interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed’ under Article II.”

For decades, Congress under both parties authorized and permitted federal agencies to exercise immense control over the economy through the rulemaking process. For the regulated, there is virtually no difference between a legal requirement imposed by statute and a legal requirement imposed by regulation. But both parties have always agreed that agency action is limited to the authority granted to the agency by an Act of Congress, duly signed by the President. Under this simple limitation, at least some limits are imposed on the unelected officials who run the agencies.

The Regulatory Flexibility Act of 1980 requires federal agencies to publish in April and October semiannual regulatory agendas in the Federal Register describing the economically significant regulatory actions an administration plans to develop within the next year. Congress enacted the Administrative Procedure Act and other strictures on the rulemaking process in part to ensure that the public and impacted parties have the opportunity to review, comment on, and offer suggested changes before new regulations take effect. The Obama Administration has been using “guidance documents” to make major policy decisions that should be vetted through the Notice and Comment Rulemaking process. This practice avoids the transparency and public participation requirements associated with the rule making process.

Because it is impossible to anticipate every possible scenario, often laws explicitly provide the Executive Branch with the ability to waive certain requirements when the national or public interest is better served by a limited waiver than the full application of the law. But like any other authority, waivers can be abused. When the promise of a waiver is used to coerce individuals, businesses or state and local governments into doing something they would not otherwise do; the waiver process morphs into a new way of making law. When waivers are provided to politically connected applicants or to some individuals or entities but not other similarly situated individuals or entities, the rule of law is undermined.

The President is charged under the Constitution with ensuring that the laws are faithfully executed. When “laws” are created without going through Congress; when laws are selectively executed; when an administration intervenes into the normal judicial process and diminishes an individual’s property rights; and when the normal regulatory process is circumvented, the rule of law is eroded. While Administrations of both political parties have been known to test the bounds of the limits of their power, the breadth of the breakdown in the rule of law in recent years has reached new levels.

White House strategist Stephen Bannon proclaimed at a conference of conservatives in February 2017 that the "deconstruction of the administrative state" was his goal. It was unclear so far what Bannon's phrase "administrative state" means, or what "deconstructing" it would entail. Deregulation is surely a key element of it.

Bannon said " If you look at these cabinet appointees, they were selected for a reason and that is the deconstruction. The way the progressive left runs, is if they can’t get it passed, they’re just going to put in some sort of regulation in an agency. That’s all going to be deconstructed and I think that that’s why this regulatory thing is so important.”

Obamacare is the leading edge of what National Review writer David French called a "vast and bloated executive branch -- existing through its alphabet soup of agencies such as the EPA, IRS, DOE, ATF, and the like." The "administrative state," in other words, is all the structures and functions of government that conservatives dislike, an alien force that, as French said, "intrudes into virtually every aspect of American life."

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Page last modified: 07-10-2017 17:47:50 ZULU