What Executive Overreach Says About the Direction of Our Democracy

by Peter Quinn-Jacobs

February 17, 2016

Cover Photo Credits

At the beginning of 2016, President Obama announced that his administration will take executive action to reduce gun violence. Presidents, Obama in particular, have endured sharp criticism for employing executive orders this way, often not because the public dislikes the action taken, but because the President is exercising legislative authority traditionally held by only the legislature. For many, the overstep itself is the upsetting part. The truly terrifying thing is what this implies about the direction our system of government is headed.

Executive overreach is far from a new trend. Despite the precautions taken by the framers of the constitution to carefully balance the powers of our three branches of government, and to keep them largely separate, they have been stepping on each other’s toes for centuries. One of the most famous examples of executive action is President Lincoln’s emancipation proclamation. Worried about recognition of the Confederacy by England and France, Lincoln issued the proclamation to change the character of the war and win over strong abolitionist support abroad, especially in England. Even Lincoln acknowledged that Congress had the authority to liberate slaves, and that his justification of the proclamation through his war powers was constitutionally questionable. President Franklin Roosevelt made similarly questionable executive orders during the New Deal era in order to help the United States recover from the Great Depression.

In each case, the legislature failed to legislate during a time of crisis. Despite overwhelming support for ending the “Gun Show Loophole” over the past few years, Congress has failed to close it. President Obama, despite his condemnation of executive privilege as a senator and on the campaign trail, has felt compelled to action by the inability of the legislature to pass laws. During the civil war, President Lincoln issued the Emancipation Proclamation because he knew that the dysfunctional legislature was incapable of passing any similar measure in time to make a difference. In times when the legislature cannot perform its duties, Presidents step in and take power—sometimes reluctantly, sometimes out of necessity, but the fact remains that each President has ended his term with more power than when he started, power taken from ineffective and impotent Congresses.

This is a distressing trend because it implies a failure at the heart of the United States government; the legislative branch does not work. The 112th and 113th Congresses have been the least productive in history. President Obama and future presidents will likely do as presidents before them have done, and step past constitutional boundaries in order to enact necessary or popular policies. What we need to recognize is that excoriating the executive is not a solution, and neither can we rely on the court to police the boundary between the legislature and the executive. Hundreds years of citizen complaints and Supreme Court decisions have only slowed, and in some cases even aided, this presidential encroachment. We must determine and correct the structural defect in the constitution that has led to this pattern of piecemeal power grabs, or resign ourselves to a government where the legislature becomes increasingly symbolic. The more power we cede to the executive, the closer we come to the kind of tyranny the framers designed our government to repudiate.