There have been key moments in American history when the two parties in Congress operated as part of the same team, the Legislature, and stood up to difficult presidents. Nowadays it seems the president’s party in Congress is usually aligned with the Executive against the other congressional party. Different strategies for different times, perhaps, but one thing critically important about 2016 is that whoever is elected in November should be faced by a Congress that fears not the Veto Threat.
Often a president merely needs to threaten a veto, publicly or privately, to wave off legislation he won’t sign, or at least won’t sign in its current form. President Obama has vetoed 10 bills and had 0 overridden by Congress. That’s the winningest record of any president in modern times. And of course there’s no way to override an executive order, a trick Obama has used over 600 times now – the all-time record among U.S. presidents.
Many Americans are worried the candidate they dislike will turn out to be an imperial president, exercising far too much power. Regardless of who’s elected, this is a legitimate fear and definitely possible given recent history! Obama has demonstrated just how badly executive power can be abused, but although he has done some arguably illegal things (the Iran nuclear deal as a prime example), many of his most egregious leadership decisions have been completely legal, though ill-advised or reckless. He’s currently on par for 641 executive orders if he keeps going at his current pace – that’s about one new regulation every 3 days.
But Bush Jr. misused executive orders too, as did his predecessors. One of the problems that will face Congress in any foreseeable future is the massive size of the executive bureaucracy – departments such as Defense, HHS, Commerce, Education, Homeland Security, Justice, Treasury – with their innumerable agencies, sub-agencies, offices, etc. The only real power Congress has over this labrynthine complex of governmental power is to vote on their budgets each year. That’s precious little control over agencies that wield considerable power over the American people. And the more powerful that bureacracy is, the more powerful the president who controls the patronage in that bureacracy.
The only way to control this bureaucracy is a backwards maneuver: lawsuits against regulation, which of course are handled by the Judicial branch. Examples of this include individuals or states suing for a stay on agency regulations until a court can rule on the constitutionality of certain rules. This is a laboriously slow process, especially given the numberless regulations being issued these days that must be reviewed and possibly challenged, as well as the generally slow process of the court system. Still, it’s better than nothing, and thank God for James Madison and his belief in a three-branched system of checks and balances!
So in the end the only real brakes that can be applied to the apparatus of executive regulatory authority today are: 1) congressional budget approval (highly imprecise as a control to tyranny); and 2) lawsuits against regulation (a rearguard action that shouldn’t have to be taken and does not always work). The legislature, i.e. Congress, was designed to balance executive power, but in current times it is more overawed and manipulated by the presidency than anything else.
The American people need a Congress that will take away from a president the corrupt over-extensions of executive authority that have grown up around the U.S. presidency in the last several decades. It would have to be an exceptionally conscientious president who would agree voluntarily to have his power diminished, so we must plan on pruning the presidency via veto-proof legislation. No longer should the mere threat of a presidential veto frighten Congress into backing off from controversial legislation or (even worse) watering down the legislation and then still claiming victory. Congress must not fear a president who did not elect them, but they must fear the people who did.