Welcome to Part Four of Trust and the Presidency!
In Part One, you learned that the framers of our Constitution had a lot of trust issues. Among these were whether the presidency could be trusted to serve the common good rather than a favored faction and whether the president could be trusted with enough power to deal with the problems of the day without tyrannizing the people. You learned they tried to overcome their trust issues by creating a presidency with constrained powers and autonomy that would be accountable to Congress. They also attempted to insulate the presidency from the politics of faction through the invention of the Electoral College.
In Part Two, you learned that, contrary to the framer’s intentions, the presidency was politicized when the state legislatures required their electors in the Electoral College to represent the popular vote in their states. In so doing, the presidency gained a power base and accountability to the voters in addition to accountability to Congress. This shift in power and accountability can sometimes motivate populist or partisan presidents to try to weaken constitutional constraints that get in the way of their ambition.
In Part Three, you learned how the powers originally assigned to the presidency for war-making, treaty-making, and control over the federal bureaucracy were deepened.
In Part Four, we will review how Congress delegated budgetary, regulatory, and emergency powers to the presidency. As in the times of the framers, and as in Part Three, the issue is whether the presidency can be trusted with enough power to deal with the problems of the day without tyrannizing the people.
PART FOUR: DELEGATED POWERS
A. The Debate Over Delegation
1. Congress has delegated substantial budgetary and regulatory authorities to the Executive Branch. (These delegations are reviewed in the next two sections.) Both delegations have the potential to touch our lives directly through the quality of public services provided to us and the quality of private goods and services that may be governed by various federal regulations.
- The delegations could be advantageous if they brought more expertise and judgement than Congress can supply on its own. We know, for example, that most members of Congress lack the expertise to regulate agricultural water use, urban planning, or high-tech’ medical treatments.
- The delegations might also be to our disadvantage if they result in partisan decisions that benefit only some of us, thus dividing the nation. It’s easy to see, for example, how some policies change from administration to administration – environmental policies are but one example.
- Delegations could also be harmful if they are made by unaccountable bureaucrats whose interests are not aligned with our own.[1]
2. Is the delegation of such authority constitutional? Some constitutional scholars argue that delegation is indeed constitutional. Article 1 of the Constitution states that all legislative powers are vested in Congress, but nothing in the Constitution denies the use of that power to delegate specific authorities to the Executive Branch.[2] Moreover, they argue, delegation was commonly used both before and immediately after the Constitution was written. Those who adhere to the non-delegation doctrine assert Congress cannot delegate its legislative powers to the executive or judicial branches, nor to private entities. The doctrine comes from Article 1 of the Constitution that assigns all legislative authority to Congress. At issue is how to draw the line between what is and is not legislative activity. The Supreme Court set the bottom line in 1928. It ruled then that the congressional delegation of legislative authority is an implied power of Congress that is constitutional so long as Congress provides an “intelligible principle” to guide the Executive Branch.[3]
Application: if delegation is maintained, what could be done to ensure that the federal departments and agencies are adequately staffed with objective, skilled, and accountable staff? If delegation is eventually judged unconstitutional, would it be best for Congress to limit the scope of its budgetary and regulatory decisions to its available expertise, or should it seek to build up its own administrative support? What options would increase your trust in our Republic?
B. Budgetary Powers
3. Budgetary powers include the authority to make policies regarding taxation, spending, and borrowing.[4] All of these powers were assigned to Congress in Article 1, Section 8, and the 16th Amendment. The implementation of these powers was initially haphazard. The federal budget was controlled by congressional committees negotiating with Executive Branch agencies. There was no coordination across committees and agencies to ensure everyone was pulling in the same direction, nor to ensure any new borrowing would be sustainable.
4. Congress enlisted the presidency to help make a more organized budget process.[5] The Budget and Accounting Act of 1921 gave the President overall responsibility for budget planning by requiring the President to submit an annual, comprehensive budget proposal to the Congress with the assistance of a new Bureau of the Budget (later renamed the Office of Management and Budget or OMB). To meet that requirement, all budgetary and legislative proposals are required to pass through the OMB for review before going to Congress. Congress remains in control of all budgetary decisions, but the President’s vision often dominates due to the divided nature of most congressional sessions. In that context, a presidential veto threat can be quite effective.
5. The president has acquired the authority to set tariff rates.[6] The 1917 Trading with the Enemy Act allows the President to impose any tariff while the nation is at war. The affected trade does not have to be connected to an ongoing war. The 1962 Trade Expansion Act gave the President the authority to negotiate tariffs downward through 1967 with the goal of expanding trade. It also allowed the President to impose tariffs based on a recommendation from the U.S. Secretary of Commerce if “an article is being imported into the United States in such quantities or under such circumstances as to threaten or impair the national security.”[7] The Trade Act of 1974 allows the President to impose a 15 percent tariff for 150 days if there is “an adverse impact on national security from imports.” After 150 days, the tariff expires unless extended by Congress. In 1977 the International Emergency Economic Powers Act (IEEPA) shifted powers even more towards the White House. The Office of the President asserts that the IEEPA gives the President the authority to raise tariffs without any limits during a national emergency of any kind. Legal scholars disagree because the IEEPA does not mention tariffs at all and transfers no authority of tariffs towards the President.[8] On June 22, 2020, the Supreme Court let stand a U.S. Court of Appeals ruling against the American Institute for International Steel which had tried to assert that a steel tariff justified under the 1962 Trade Expansion Act was unconstitutional because the absence of an “intelligible principle” to guide the executive’s actions constitutes a violation of the nondelegation doctrine.[9]
6. Presidents also have some narrow budgetary powers during some emergencies. For example, in the event of a declaration of war, or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires the use of the armed forces, the Secretary of Defense may authorize military construction projects that are not otherwise authorized by law. These projects may be undertaken only within the total amount of funds that have been appropriated for military construction.
7. The presidency long-held, but recently lost, the power to impound (to refuse to spend money) appropriated by Congress. The president might choose to do so because the money was no longer needed, or less money was needed than appropriated. The power to impound was available to all presidents up to and including Richard Nixon and was regarded as a power inherent to the office. Thomas Jefferson was the first president to exercise the power of impoundment in 1801. Congress believed President Nixon abused the power to impound when he refused to fund an environmental project mandated by Congress. In reaction, Congress eliminated the power of impoundment with the Congressional Budget and Impoundment Control Act of 1974. Instead, presidents may propose cutting specific funds, but both the House and the Senate must choose to act on the proposal within 45 days. In practice, Congress has ignored the vast majority of presidential requests.
8. The presidency briefly held the power to veto specific spending. Congress adopted the Line Item Veto Act of 1996 to control “pork-barrel spending.” President Clinton applied the line-item veto to the federal budget 82 times. In 1998, the U.S. Supreme Court ruled the act violated the Presentment Clause of the United States Constitution: Article I, Section 7, Clauses 2 and 3 requires that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States.” In other words, the Line Item Veto Act unconstitutionally gave the President of the United States the power to unilaterally amend or repeal parts of statutes that had been duly passed by the United States Congress.
C. Regulatory Powers
9. Regulatory decisions by federal departments and agencies under the President affect our lives on a daily basis. Federal regulations are rules that make laws operational. They can have a large impact on a wide range of issues, including food quality and safety, job safety, public health, access to the internet, water rights, land use, the environment, and more. In 2015 and 2016, federal agencies published more than 7,000 final rules filling more than 60,000 pages in the Federal Register. During that same time, by contrast, the 114th Congress enacted just 329 public laws filling about 3,000 pages in the Statutes at Large.[10]
10. The presidency can influence Congress to adopt its preferred regulatory laws.[11]Beginning with the Reagan administration, the Office of Management and Budget began sending Congress “Statements of Administration Policy.” These statements are consistent with the advisory power assigned to the presidency under Article 2, Section 3. They provide legislators with clear signals as to which policies the administration would and would not support. They create leverage for the President since presidential vetoes are difficult to overturn.
11. After decades of incremental gains, presidents can now dictate their preferred priorities to federal departments and agencies.[12] Presidential involvement in regulation got its start with a concern that federal regulations were becoming too burdensome for American business. The Nixon administration responded by mandating a review of regulations to be issued by the Environmental Protection Agency. This process was formalized and expanded by the Ford and Carter administrations. In 1979, Congress adopted the Paperwork Reduction Act as a further response to worries about burdensome regulation. The act created the Office of Information and Regulatory Affairs (OIRA) located within the Office of Management and Budget, under the Office of the President. The OIRA was required to monitor proposed regulations and limit their administrative impact on private business. President Reagan took full advantage of the new law. He issued Executive Order 12291 in 1981 that no proposed regulation could be published unless OIRA certification that the benefits outweighed the costs. (Part Five reviews executive orders.) Departments and agencies would have to accept any revisions that OIRA proposed. In 1985, President Reagan issued Executive Order 12291, requiring all departments and agencies to report their annual regulatory plans for review and accept any revisions that OIRA requested. President Clinton issued Executive Order 12866, which required departments and agencies to adopt rules that are consistent with the President’s priorities. The order also, for the first time, required independent federal agencies to submit their regulatory plans for review by OIRA. In this way, the presidency gained control over the regulatory process.
12. Ordinary citizens have two opportunities to review and comment on proposed regulations before they become law.[13] First, the Administrative Procedure Act (APA) enacted June 11, 1946, governs the way federal administrative departments and agencies may propose and establish regulations. The APA applies to both the federal executive departments and the independent agencies. It requires departments and agencies to allow time for public review and comment on proposed regulations, and it grants U.S. federal courts oversight over all agency actions. The requirement to provide the public with adequate notice of a proposed rule is generally achieved through the publication of a notice of proposed rulemaking in the Federal Register. The APA requires that the notice of proposed rulemaking include “(1) the time, place, and nature of public rulemaking proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.” According to the Office of the Federal Register, departments and agencies will specify a comment period ranging from 30 to 60 days in the “Dates” section of the Federal Register document, but the time period can vary. For complex rulemakings, agencies may provide for longer time periods, such as 180 days or more. Agencies may also use shorter comment periods when that can be justified. Second, under OIRA rules, citizens may provide written comments to the OIRA Administrator on any rule that is under review.
13. Congress has a de facto legislative veto that can be used to negate Executive Branch regulations. The legislative veto was a feature of dozens of laws enacted by the federal government between approximately 1930 and 1982. In essence, Congress delegated various powers to executive officials on the condition that Congress can control their decisions without having to pass another law. These legislative controls included one-house vetoes, two-house vetoes, and committee vetoes. In 1983, however, the U.S. Supreme Court in 1983 ruled in Immigration and Naturalization Service v. Chadha that Congress may not use one-house and two-house vetoes. In practice, the court ruling has had little effect on the legislative vetoes that operate at the committee and subcommittee level. In addition, the 1996 Congressional Review Act allows Congress to issue resolutions of disapproval to block recent regulations.[14] The Act has been used fairly frequently since 2017.[15] Overall, executive agencies and congressional committees have developed a variety of voluntary accommodation procedures over the years that result in a standard quid pro quo: Congress agrees to delegate substantial discretion to executive agencies if they accept a system of review and control by the committees of jurisdiction. These mutual accommodations are a useful mechanism for reconciling legislative and executive interests.
Application: Based on what you have learned about the balance of Presidential and Congressional control over federal regulations and their control over personnel (Part Three), is it possible that some bureaucrats might issue regulations on their say-so? Why or why not?
Application: How do you assess the pros and cons of working with a divided Congress to achieve necessary regulation versus using executive authority via OIRA to get the job done?
D. Emergency Powers
14. It is easy for U.S. presidents to gain extra powers by declaring and renewing emergencies. This was made possible by Congress, which, over time, delegated substantial emergency powers to the presidency.[16]As of 2007, according to the Congressional Research Service, during an emergency, “the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.” That kind of power creates a real risk of tyranny unless Congress, the Supreme Court, and the citizens remain vigilant enough to stop any abuses of power.
15. The first delegation of emergency powers came early, out of fear of insurrection. The 1807 Insurrection Act allows the President to call the armed forces and the National Guard into service to address an insurrection against any state when requested by a state’s legislature or governor. Presidents can also act without the request of state officials when they determine that a state government is unwilling or unable to adequately address unlawful obstructions, combinations, assemblages, or rebellions that make it impracticable to enforce the federal laws by the ordinary course of judicial proceedings. The act was modified in 1871 to include the authority to enforce the Equal Protection Clause of the 14th amendment.[17] For that purpose, the President may act unilaterally when any insurrection, domestic violence, unlawful combination, or conspiracy deprives people of their rights, privileges, immunities, or protections named in the Constitution and secured by law. That degree of discretionary power is rather formidable.
16. The Insurrection Act has been used with both good and bad effect. The Act was used with good effect by President Eisenhower in 1957 to enforce desegregation in Little Rock, Ark., as did President Kennedy in 1962-63 in Mississippi and Alabama. President Johnson used the law to control a 1967 race riot in Michigan. President George H.W. Bush used the act in 1992 to respond to the Los Angeles riots. The Act was used with harmful effect to end a Colorado coal miner’s strike with excessive force in 1914 (the Ludlow massacre) and to suppress a political protest in 1970 where troops killed four protestors at Kent State University.
17. The Posse Comitatus Act,[18] as amended in 1956, is meant to constrain against tyrannical use of federal force. (The phrase posse comitatus refers to a body of men, typically armed, summoned by a sheriff to enforce the law.) The act says “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.” The act was intended to place clear limits on presidential authority to use federal force on U.S. soil.[19]
18. Citizens should understand when the Posse Comitatus Act is being violated. According to the Congressional Research Service,[20] the law is violated when (1) civilian law enforcement officials make direct active use of military investigators; or (2) the use of military personnel “pervades the activities” of the civilian officials; or (3) citizens are subjected to the exercise of military power which was regulatory, prescriptive, or compulsory in nature. The law is not violated when the Armed Forces conduct activities for a military purpose. Additionally, the law does not apply to the National Guard unless it is employed in federal service. State governors are empowered to invite the portions of the Army National Guard or the Air National Guard under their control to assist in law enforcement within their home states.
19. There are some statutory exceptions to the Posse Comitatus Act.[21] These include legislation that allows the President to use military force to suppress insurrection or to enforce federal authority, and laws that permit the Department of Defense to provide federal, state, and local police with information, equipment, and personnel.
Application: Some state constitutions prohibit the application of martial law to civilians. Examples include Tennessee Article I(25) and Vermont Article 16. By contrast, the U.S. constitution does not include any restrictions on the domestic use of federal force to coerce citizens. The Posse Comitatus Act provides that protection, but it is a law that can be changed at any time by Congress. Should something like the Posse Comitatus Act be placed within the Constitution, thus making the protection harder to overturn, or is flexibility necessary?
20. The U.S. National Emergencies Act of 1976 provides presidents with substantial powers.[22] Powers available under this Act are limited to the 136 emergency powers that Congress has delegated to the President, each available upon the declaration of an emergency. Only 13 of these require a declaration from Congress; the remaining 123 are assumed by an executive declaration with no further Congressional input.
21. The U.S. National Emergencies Act of 1976 includes an ineffective brake on abuse. The Act requires the President to cite a legal basis for an emergency and to say which emergency powers he or she would exercise. All emergencies must expire after one year if not renewed by the President. Yet, the President can renew a declared emergency at any time: congressional approval is not needed. This made it possible for presidents Bush, Obama, and Trump to renew their 9/11/2001 emergency authorities even though most of the 9/11 plotters had long ago been killed or caught. Osama Bin Laden was killed in 2011.
22. Congress has not made use of its power to cancel emergencies established under The National Emergencies Act. Of the 23 emergencies declared under the National Emergencies Act and no longer in effect, all were canceled by executive order rather than by Congress. As of September 2019, 62 national emergencies have been declared, and 34 of those remain in effect.[23] The bottom line is that it is easy for U.S. presidents to gain extra powers outside the constitution and the laws by declaring and renewing emergencies.
Application: If some emergency powers are repeatedly renewed, are they addressing true emergencies? Should such powers be delegated instead? Should the National Emergencies Act be revised to eliminate presidential discretion in renewing emergency powers?
Congratulations! You have completed Part Four of the series on Trust and the Presidency.
You have learned that Congress has delegated substantial budgetary and regulatory authorities to the Executive Branch. Both can touch our lives directly and should be watched carefully. The Supreme Court ruled in 1928 that the delegation of legislative authority is an implied power of Congress that is constitutional so long as Congress provides an “intelligible principle” to guide the Executive Branch.
The presidency gained budgetary powers at a time when Congress needed help to organize a chaotic budget process. As a result, all budgetary and legislative proposals are required to pass through the OMB for review before going to Congress. Congress also delegated the authority to set tariff rates. Presidents also have some narrow budgetary powers during some emergencies. Some budgetary powers have been taken away as well. The long-held power to impound money appropriated by Congress was removed in 1974, and the power to veto spending, granted in 1996, was removed by the Supreme Court in 1998.
Presidents have two tools they can use to influence the formation of rules and regulations. One is the use of “Statements of Administration Policy” to give legislators clear signals as to which policies the administration would and would not support. They create leverage for the President since presidential vetoes are difficult to overturn. Presidents can also regulate unilaterally when they wish. A combination of Congressional delegation and executive orders gave the President power to ensure regulations issued by federal departments and agencies are consistent with presidential priorities. This is accomplished through the Office of Information and Regulatory Affairs (OIRA). Congress and voters can push back. Congress has a de facto legislative veto that can be used to negate Executive Branch regulations in addition to the 1996 Congressional Review Act. Citizens have two opportunities to review and comment on proposed regulations. First, the Administrative Procedures Act provides citizens with the right to review and comment on proposed regulations. Second, under OIRA rules, citizens may provide written comments to the OIRA Administrator on any rule that is under review.
You also learned that Congress delegated substantial emergency powers to the presidency through the U.S. National Emergencies Act of 1976 and other legislation. The President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens. Only a few of these emergency powers require a declaration from Congress; most emergency powers are assumed by a simple executive declaration. The U.S. National Emergencies Act of 1976 includes an ineffective brake on abuse. Congress has not made use of its power to cancel emergencies established under The National Emergencies Act. That kind of power creates a real risk of tyranny unless Congress, the Supreme Court, and the citizens remain vigilant enough to stop any abuses of power.
Under the Insurrection Act, the President may call the armed forces and the National Guard to address an insurrection against any state, when requested by a state’s legislature, or governor. The president can also act unilaterally when a state government is unwilling or unable to effectively address situations that make it impracticable to enforce the federal laws, including the Equal Protection Clause of the 14th amendment, by the ordinary means. The Posse Comitatus Act, as amended in 1956, is meant to constrain against the abuse of such powers. There are, however, some statutory exceptions to the Posse Comitatus Act. Thus, it is crucial that citizens learn and understand when the Posse Comitatus Act is being violated.
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© Center for Free, Fair, and Accountable Democracy
July 2020
This material is to be used only for civic education.
It may be copied and distributed only for non-profit, non-partisan, educational purposes and only with proper credit to the
Center for Free, Fair, and Accountable Democracy.
Written by Douglas Addison for the
Center for Free, Fair, and Accountable Democracy.
Principle Reviewers:
Jay Barth,
M.E. and Ima Graves Peace Distinguished Professor of Politics, Emeritus; Hendrix College
Matthew Crenson
Professor Emeritus and Academy Professor,
John Hopkins University
Benjamin Ginsberg,
David Bernstein Professor of Political Science,
Johns Hopkins University
Internal Reviewers:
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Cover photo: whitehouse.gov
End Notes
[1] See John Hart Ely, 1980, Democracy and Distrust.
[2] See Mortenson and Bagley (forthcoming). Delegation at the Founding.
[3] J. W. Hampton, Jr. & Co. v. United States, (1928), 276 U.S. 394 (1928).
[4] This section draws upon Crenson & Ginsberg (2008) Presidential Power Unchecked and Unbalanced, pp. 19-24; and Congressional Research Service (2008) The Role of the President in Budget Development; and www.CBO.gov.
[5] Crenson & Ginsberg (2008). pp. 181-182.
[6] Congressional Research Service (2016). Presidential Authority over Trade: Imposing Tariffs and Duties
[7] See https://www.govinfo.gov/content/pkg/STATUTE-76/pdf/STATUTE-76-Pg872.pdf
[8] Tankersley, Jim (November 29, 2018). “How Tariffs Work, and Why China Won’t See a Bill”. The New York Times.
[9] See https://www.reuters.com/article/us-usa-court-steel/u-s-supreme-court-rejects-challenge-to-trumps-steel-tariffs-idUSKBN23T1ZU
[10] For one opinion on the topic, see Walker (2017). Restoring Congress’s Role in the Modern Administrative State. https://ssrn.com/abstract=3050981
[11] See Congressional Research Service (2016). Statements of Administration Policy. See https://fas.org/sgp/crs/misc/R44539.pdf
[12] Crenson & Ginsberg, 2008, pp. 205-211.
[13] Congressional Research Service (2017). A Brief Overview of Rulemaking and Judicial Review. https://fas.org/sgp/crs/misc/R41546.pdf
[14] Congressional Research Service (2001). Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act.
[15] See https://en.wikipedia.org/wiki/Congressional_Review_Act#Successful_uses
[16] Congressional Research Service (2007). National Emergency Powers. Note: The Constitution does not expressly grant the President additional powers in times of national emergency. However, scholars such as John Yoo assert that the Framers implied these powers because the Executive Branch is naturally nimbler than Congress.
[17] The national Constitution Center has a useful summary of debates over how the 14th amendment should be applied. See https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/702
[18] The Posse Comitatus Act was originally adopted in 1878 in the context of an effort to remove federal troops from states defeated in the Civil War.
[19] The Department of the Navy has prescribed regulations that are generally construed to apply the Posse Comitatus Act to the Navy and the Marine Corps as well.
[20] Congressional Research Service, 2020, p. 2.
[21] Congressional Research Service (2020). Defense Primer: Legal Authorities for the Use of Military Forces
[22] Brennan Center for Justice (2019). A Guide to Emergency Powers and Their Use. https://www.brennancenter.org/sites/default/files/2019-10/2019_10_15_EmergencyPowersFULL.pdf
