Historians and democracy scholars have been warning for decades that the American executive branch has departed from the original conception of the constitutional framers, who envisioned a president constrained by Congress and charged primarily with implementing the laws passed by the legislature (though Alexander Hamilton argued for a president with near monarchal powers). Even from the earliest days, presidents have overreached these boundaries, but not until the 20th century did that overreach become structural. When Arthur Schlesinger wrote The Imperial Presidency in 1973, he invoked that phrase not with respect but as a serious warning to the country. Since then, the presidency has become even more imperial, even more powerful, and less responsive to voters, to Congress and even to the courts in its day-to-day operation.
The blame lies with both parties. In a more or less unbroken streak since the Great Depression, each president has arrogated greater control over a larger and larger bureaucracy, often capitalizing on a national crisis to do it. By the time Barack Obama became president, he had an immense suite of powers at his disposal—which he expanded yet further, in the face of an intransigent Republican Congress, to push his policy goals in areas such as immigration, drone warfare, environmental regulation and federal oversight of local policing.
Trump critics appalled by what the current president did, or tried to do, might have directed some of their anger at Congress for giving up its authority over the decades. When Trump unilaterally slapped tariffs on a whole range of imported goods, he did it using trade authority that Congress had explicitly granted the presidency. When he instituted a travel ban on several countries, he did it using national security exceptions to Congress’ power to oversee immigration—exceptions that Congress had written into law. Trump redirected money from the Pentagon budget to build some of his wall, using discretionary funds and obscure exceptions to how the Pentagon can allocate those, even though the Constitution gives the power of the purse to Congress. When issued executive orders rolling back environmental protections and banning Chinese social media companies, some of those were well within his purview because Congress had delegated that authority; some, such as the ban on TikTok, slid through because of an overly generous but long-standing interpretation of the president’s national security powers. And though courts slapped down some of his orders, they also upheld much of what he did because it was under authority legally granted to his office.
For all of that, Trump made significantly less use of the powers of his office than he might have had he been more disciplined, more meticulous and more able to hire and retain the kind of skilled staff who understand how to build and implement durable executive power. He benefited greatly from the skill of George W. Bush and Obama, who did employ such people and craft such arguments and then handed Trump a plate of powers. Yet Trump didn’t know how to use those at first, and he actually issued fewer executive orders than Obama, Bush or Clinton. In that sense, the United States actually dodged several bullets relative to what he could have done.
And that is why, when Biden sits down in the Oval Office in January 2021, the Democrats will expect—understandably—a president willing to throw the full weight of the executive branch at his political goals, rolling back Trump’s actions and quickly advancing a Democratic agenda over the objections of a (likely) Republican Senate.
Instead of using his powers that way, however, the better outcome for the country might be neutering the next Donald Trump, and restoring some balance to American democracy by working with Congress to pare back the executive branch.
It’s likely that both the Democrats in the House and the Republicans in the Senate would be enthusiastic partners. A good place to start would be curtailing the White House’s tariff authority, granted decades ago and in a different age. Immigration would be another area: Leaving it to the whim of the executive whether to use Immigration and Customs Enforcement aggressively or not at all, whether to speed deportations and raids or halt them entirely, is to court constant uncertainty that is at odds with the rule of law.
The challenge for a Democratic president, of course, is that renouncing power would mean giving up a huge amount of influence on the regulatory sphere, which is one of the key ways a modern president affects the country. (It’s worth noting that Trump was, arguably, at his most popular in reducing the regulatory footprint of the federal government, such as allowing for greater innovation in financial services.) In addition to working with Congress to tighten some of the vague language that has allowed agencies to legislate through rule-making, a Biden administration could adopt an executive branch version of “judicial restraint,” which would mean not pushing the regulatory sphere to its outer limits in the service of its policy goals. Presidents Clinton, Bush and Obama all began their tenure promising to reduce the thicket of regulations; Biden could actually do it.
The prospect of a Biden administration working to check the powers of the presidency may seem slim, but it isn’t la-la land. There have been moments in recent history when executive power has, indeed, rolled back. After Watergate and the simultaneous revelations that presidents before Nixon had been using the CIA and other agencies to wage covert war without the express consent of Congress, the legislative branch clawed back some powers. Both Gerald Ford and Jimmy Carter chafed and were seen as weak presidents, which only renewed the determination of presidents since to wield their authority first and ask permission of Congress and the courts after the fact. Then, with the end of the Cold War and the presidency of Bill Clinton, Congress once again tried to assert more control—some of that destructively, during the impeachment process, but also legitimately in denying Clinton’s attempts to invoke executive privilege to thwart investigations.
Those brief shifts in the balance of power show that the growth of the imperial presidency is not unstoppable; it only appears that way because of the past 20 years, which saw vast expansion of presidential authority after both 9/11 and the financial crisis. And to the argument that no one gives up power willingly, we have the stunning example of the substantial reduction in nuclear arsenals after 1990, with some countries such as the Ukraine denuclearizing altogether and others such as Russia and the United States destroying significant portions of their arsenals.
The lesson of Trump should be that the United States dodged a bullet. Trump ended up doing far less than his opponents feared or than his supporters wanted, out of either incompetence or being checked by other institutions and power centers. But his election and near reelection also demonstrated that many Americans will risk some freedoms if they believe that their core agenda will be advanced, whether that agenda involves abortion, standing up to China, limiting immigration or maintaining domestic and international security. And even if that point is debatable (and it certainly is debated), the past four years should also demonstrate what the Founding Fathers certainly knew: that freedom and an open society do not matter to all citizens the same way at all times, and that any democracy is fully capable of electing leaders whose commitment to the rule of law and those freedoms is questionable. The best way to keep them from abusing their power and wrecking our system is to limit those powers in the first place.
To restore some balance, Biden doesn’t need to fall on his sword or become a weak president. Quite the opposite. Actively working with Congress to right a system that has become badly skewed could be one of the greatest acts of presidential leadership the country has seen in a long while. As the sages have said, it not now, when?