The executive order is becoming a serious problem for the US


The office of the presidency is too damned powerful.

One man decided to set up concentration camps detention centers on our southern border. That same man has decided it’s okay to split up desperate families and cage children, depriving them of the most basic accommodations, like soap and toothbrushes.

One man decided, against the advice of every involved nation on Earth, to set aside our nuclear pact with Iran. Now that all those other nations have proven to be correct about the implications, that same man is banging the drum for war.

One man decided to break our trade deals with China and launch a trade war. The results have been catastrophic for many Americans, including our farmers. Worse, China isn’t going to sit around and do without, so they’re working to cultivate other sources (they can grow soybeans in Brazil, I bet). If you think they’ll tell these other sources to never mind once things are repaired with the US you’re naïve.

One man – a different man – decided to attack the wrong country after 9/11 and the result was the deaths of hundreds of thousands of innocent people.

And lest you think I’m captive to blind partisanship, it should be noted that still another man issued 560 major regulations in seven years, nearly 50% more than his predecessor. I might argue in defense of some of them, noting how they were intended to get around an unprecedented campaign of hateful, strictly partisan obstructionism that threatened the well-being of every human on the planet. If I did, I’d be right. Even so, during those seven years we had one man rendering Congress mostly moot, which is … concerning.

You see where this is heading, and you know we can go all day. (I keep using the term “man” because to this point we’ve not had any female presidents. But there’s no reason to believe a hypothetical Madame President would be any different.)

The rise of the “imperial presidency” isn’t a new thing. The framers of the Constitution were concerned about it from day 1 and built in a variety of structures designed to prevent the president from becoming too powerful, and in recent administrations we’ve seen their fears more than validated.

The current occupant of 1600 Penn is without question the worst to date. But while he provides us with spectacular examples of the problem, his case represents a difference in extreme, not type.

In 2013 I produced the New Constitution series, my shot at a constitution for contemporary America. The original document is regarded as the greatest of its kind in history – a view I have serious issues with – and I set out to fix everything that was wrong with it.

I’m generally proud of the results, although even at the time I realized it was far from perfect.

Lately I’ve been thinking it was even more flawed than I realized, and the impetus for my reflection has been the imperial presidency and the out-of-control use of the executive order to bypass the will of Congress. That the will of Congress often needs bypassing is beside the point.

Let’s set aside, for the moment, what you or I think of Donald Trump or his predecessors. The simple fact is that at present the office of the presidency is too damned powerful. The executive order dramatically undermines the power of the legislative branch. Yes, there are things only Congress can do – confirm judges, for example – but give it time. On paper only Congress can authorize war, but if Trump wants to invade Canada who’s going to stop him?

As I think about maybe doing a Newer Constitution revision (which already has three or four significant problems I’d need to address), I feel like we need hard limits on presidential authority, especially when it comes to the exercise of clearly legislative functions.

There’s nothing to be done about the realities of how power-mongering people behave in practice, so the highly partisan and corrosive effects of, for instance, the partisan judiciary (maybe the Justice for Life things needs looking at?) is always going to present nigh-on insurmountable challenges. (I mean, we have structures in place already, but when one party owns all three branches of government they can simply choose to ignore the rule of law).

But that doesn’t mean we shouldn’t use the Constitution to provide the strongest weapons possible against dangerous accumulations of power. The executive order might be a good place to start.

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