Claiming that he “cannot wait” for Congress to act, President Obama has promised to issue an executive order granting amnesty to several million illegal aliens. There is little doubt that the president will follow through on his promise. From altering bankruptcy laws and declining to defend the Defense of Marriage Act, to eighteen unilateral alterations to the Affordable Care Act and various foreign excursions, his entire presidency has been characterized by universal disregard for the legislative process. His actions are not those of executive operating within a constitutional system, but rather those of a monarch who believes he can rule by fiat. Now that the Republicans will control both houses of the legislature, this monarchical rule by decree will most likely accelerate.
The dangers of this mentality towards presidential power have been well-documented on the pages of Nomocracy so there is no need to reiterate them here. Additionally, pundits and politicians have appealed to Congressional authority (or, better yet, the reassertion of that authority) as a method to nomocratize the executive. While the threat to liberty by presidential kingship is real and congressional authority can be a potent remedy, under the current political climate both seem unlikely to curb this growing – and bipartisan – trend in presidential power. Instead, this essay suggests a different approach, namely that we take a page from English constitutional history and tame the executive by amending the constitution.
The Framers inherited an English constitutional history that taught that the greatest single threat to liberty and the rule of law resided in the arbitrary rule of a monarch. Of special and lasting constitutional significance was the clash between the Stuart Kings and Parliament. Starting with James I, but accelerating with his successors Charles I, II, and James II, the Stuarts believed they could govern England through their own will. By ignoring, or outright dissolving, Parliaments, the Stuarts ruled through proclamation and decree. They created and then forced the payment of taxes; denied trial by jury, habeas corpus, and due process of law; attempted to disarm segments of the population; dispensed with provisions of the law they did not like in order to grant favors to particular groups; and suspended laws with which they did not agree, effectively making the law unenforceable.
Some of these actions may have been done for laudable purposes, such as James II’s dispensing with legal prohibitions against Catholics. Commendable or not, they nevertheless flouted the constitutional order. In short, they led to a series of constitutional crises and, ultimately, civil war and massive political upheaval. In 1688, having tired of tolerating the robust use of dispensing and suspension power, Parliament forced James II to abdicate his throne and named William of Orange and his wife, Mary, the dual monarchs of England. Before they could come to power, however, Parliament forced them to agree to explicit prohibitions upon their power. Better known as the English Bill of Rights, the first two limitations upon their power stated
That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal.
These explicit provisions tethered the crown to the constitutional boundaries of their authority.
Interestingly, although the Framers incorporated other elements of the English Bill of Rights into the constitution and its own Bill of Rights, these two opening provisions of the English predecessor were never included. The argument could be made, as it often is when trying to defend executive power, that the framers “vested” a President with broad authority, including, perhaps, the power to dispense and suspend federal law. This is certainly the argument made in recent decades by Presidential administrations. Such an argument, however, contradicts the clear nomocratic nature of the constitution. The Framers, very aware of this English history, did not seek to create an executive that could circumvent the rule of law. By enumerating federal power, including the power of the executive, and ensuring that the office “shall take care that the laws be faithfully executed,” they had every expectation that the law and constitution confined presidential power. In this, they were wrong. It is time to rectify this mistake, reach back into English constitutional history, and incorporate these opening provisions of the English Bill of Rights into our own constitutional order.
Critics of this argument will claim that amending the constitution is incredibly difficult. They are right, and tinkering with the constitutional order should never be taken lightly. Furthermore, to believe that congress would act in a bipartisan manner and muster the necessary two-thirds votes of both houses to submit to the states an amendment limiting presidential power is nothing short of being a Pollyanna. Yet, Article V does provide that two-thirds of states can, in ratifying conventions, create amendments. This process, used only once to ratify the Twenty-first Amendment, can be a possible method to change the constitution. If the Republican Party is serious about executive overreach (which is debatable), then they could turn to the states for this constitutional remedy. Admittedly, Republicans control only 23 state assemblies, far from the 30 needed to make two-thirds, but they are majorities in 68 out of the nation’s 98 state houses. Given that not all Democrat controlled houses are overwhelming majorities, nor do they all necessarily reflect the more liberalized ideology of the national Democratic Party, there is real potential to incorporate these seventeenth century provisions into the constitution and, thus, rein in the presidency.
Nathan Coleman is Associate Professor of Higher Education and History at the University of the Cumberlands.