21.3 Executive Power in the 21st Century

Executive power in the 21st century has expanded dramatically, especially after 9/11. Presidents now claim broad authority in national security, often bypassing Congress. This shift raises concerns about checks and balances and the concentration of power in the executive branch.

The growth of executive power impacts domestic and foreign policy. Presidents increasingly use executive orders and administrative regulations to shape policy without legislation. This trend challenges traditional notions of separation of powers and democratic accountability.

Executive Power: Scope and Limits

Constitutional Basis for Executive Power

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• The President's executive power is derived from Article II of the Constitution
  • Grants the President the authority to execute the laws, serve as Commander-in-Chief of the armed forces, and make treaties with foreign nations
• The President's power to respond to national emergencies and threats to national security has expanded in the 21st century
  • Particularly in the aftermath of the September 11th attacks and the subsequent "War on Terror"
  • The President has claimed broad authority to use military force, conduct surveillance, and detain individuals suspected of terrorism, often without explicit congressional authorization or judicial oversight

Expansion of Executive Power in Domestic and Foreign Policy

• The use of executive orders, presidential directives, and signing statements has become increasingly common
  • Used as a means of asserting executive power and shaping policy without legislative action
  • Examples include executive actions on immigration (DACA), climate change (Paris Agreement), and healthcare (Affordable Care Act)
• The President's role in domestic policymaking has also grown
  • Use of administrative regulations to advance policy goals
  • Bypassing Congress and relying on executive branch agencies (EPA, HHS) to implement policies
• The limits on executive power are primarily derived from constitutional principles and specific legal provisions
  • Separation of powers and checks and balances aim to prevent concentration of power
  • The President's actions are subject to judicial review for constitutionality and compliance with existing laws
  • Congress has the power to constrain executive authority through legislation, oversight, and the power of the purse (budget control)

Checks and Balances on Executive Authority

Congressional Checks on Executive Power

• Congress has the power to pass laws that limit or regulate the exercise of executive power
  • Example: War Powers Resolution requires the President to seek congressional approval for the use of military force
  • Can also use oversight hearings, investigations, and budget control to constrain executive actions
• The Senate has the power to provide "advice and consent" on presidential appointments and treaties
  • Serves as a check on the President's ability to shape the executive branch and conduct foreign policy
  • Can block or delay controversial nominees or international agreements
• The House of Representatives has the sole power to initiate impeachment proceedings against the President
  • Provides a means of removing a President who abuses their power or violates the law
  • Impeachment is a rare and politically charged process (only three presidents have faced impeachment: Andrew Johnson, Bill Clinton, Donald Trump)

Challenges to Effective Checks and Balances

• The effectiveness of these checks and balances has been challenged in the 21st century by several factors:
  • Partisan polarization: Divided government and ideological divisions make it harder for Congress to act as a unified check on the executive
  • Congressional gridlock: Legislative stalemates and filibuster use can prevent Congress from passing laws to constrain executive power
  • Expansion of executive power in response to national security threats: Presidents have claimed broad authority to act unilaterally in the face of terrorism and other emergencies
• The erosion of norms and institutional constraints on executive power has also raised concerns
  • Examples include the firing of inspectors general, the politicization of the Department of Justice, and the rejection of congressional oversight requests
• Scholars have debated whether the constitutional system of checks and balances is still functioning effectively in the modern era of expansive executive power

Judicial Interpretation of Executive Power

Supreme Court's Role in Constraining Executive Power

• The Supreme Court has the ultimate authority to determine the constitutionality of executive actions
  • Can strike down presidential actions that exceed legal authority or violate individual rights
  • Examples: Youngstown Sheet & Tube Co. v. Sawyer (1952) - Court blocked President Truman's seizure of steel mills during the Korean War
  • United States v. Nixon (1974) - Court ordered President Nixon to turn over Watergate tapes, leading to his resignation
• However, the Court has also shown deference to the executive branch in cases involving national security and foreign policy
  • Examples: Korematsu v. United States (1944) - Court upheld the internment of Japanese Americans during World War II
  • Trump v. Hawaii (2018) - Court upheld President Trump's travel ban on several Muslim-majority countries

Lower Courts and Judicial Review of Executive Actions

• Lower federal courts also play a significant role in reviewing executive actions
  • Can issue injunctions to block or modify presidential policies that are found to be unlawful or unconstitutional
  • Examples include rulings on Trump administration policies related to immigration, asylum, and environmental regulation
• The effectiveness of judicial review as a check on executive power depends on several factors:
  • Willingness of courts to assert their authority and rule against the executive branch
  • Scope of the legal issues involved and the applicable standards of review
  • Compliance of the executive branch with judicial orders and respect for the rule of law
• Critics argue that the judiciary has become increasingly politicized
  • Appointment of conservative judges by recent Republican presidents may make courts more likely to uphold expansive claims of executive power
  • Raises concerns about the erosion of judicial independence and impartiality

Expanding Executive Power: Implications for Separation of Powers

Concerns about Concentration of Power in the Executive Branch

• The expansion of executive power in the 21st century has raised concerns about the erosion of the separation of powers
  • Concentration of power in the executive branch can undermine the checks and balances established by the Constitution
  • Makes it more difficult for Congress and the courts to constrain presidential actions
• The use of executive orders, signing statements, and other unilateral actions by the President can bypass the legislative process
  • Undermines the role of Congress in making laws and setting policy priorities
  • Example: President Obama's use of executive orders to implement immigration policies (DACA) after Congress failed to pass comprehensive reform

Implications for Transparency, Accountability, and Civil Liberties

• The assertion of broad executive authority in areas such as national security and foreign policy can lead to a lack of transparency and accountability
  • Potential for human rights abuses and violations of civil liberties
  • Example: Bush administration's use of "enhanced interrogation techniques" (torture) on terrorism suspects and the establishment of the Guantanamo Bay detention camp
• The politicization of the Department of Justice and other executive agencies can undermine the rule of law
  • Erosion of the impartial administration of justice
  • Example: Trump administration's efforts to pressure the DOJ to investigate political opponents and overturn the 2020 election results

Precedents and Proposals for Reform

• The normalization of expansive executive power can set dangerous precedents for future presidents
  • Makes it more difficult to restore constitutional limits on presidential authority
  • Each successive administration builds upon the claims of executive power made by previous presidents
• Scholars and policymakers have proposed various reforms to strengthen checks and balances and prevent the abuse of executive power:
  • Enhancing congressional oversight powers and enforcement mechanisms
  • Reforming the war powers framework to require greater legislative involvement in military actions
  • Depoliticizing the appointment of executive branch officials and protecting the independence of inspectors general
  • Codifying norms and informal constraints on executive power into law
• Ultimately, the preservation of the separation of powers and the rule of law depends on the vigilance of all branches of government and the engagement of an informed citizenry