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The Rise of the Unitary Executive

The Biden administration recently inserted child care requirements for companies accessing funding in the new CHIPS Act, a bill to promote the development of the U.S. silicon chip industry. While access to affordable childcare, the requirement most reported on by media, is a laudable goal, the way the Biden administration has added this requirement, outside of congressional intent or language, is troubling. It is also part of a multi-decade power struggle between the president and Congress in which we have seen Congress increasingly cede power, while the executive arrogates increasingly more power onto itself.

How Did We Get Here?

In the late 1980s, the George H.W. Bush administration was challenged with what seemed to be a permanent Democratic majority in Congress. Democrats had control of the House since 1954, and control of the Senate for all but six years of that period. With no inkling that the 1994 Gingrich-led Republican takeover was in the offing, the Bush administration deployed a veto strategy to shape legislation. Bush learned from his time in the Gerald Ford administration the power of the veto as a tool for blunting Congress’ ability to get what it wanted, and he deployed the tool effectively, with 43 out of 44 of his vetoes being sustained. At the same time, Bush’s frequent use of the veto alienated Congress, creating what historian John Robert Greene called “a chain of legislative acrimony.”

When George W. Bush was president he did not use, or have to use, the veto nearly as frequently; he used another strategy to assert his will vis a vis Congress, namely, the signing statement. Here, rather than vetoing a bill the president states that he will not enforce or use their own interpretation to enforce specific provisions of a law. Bush was not the first or only president to use the signing statement, but using these statements to lay out what the Bush administration felt that congressionally-passed bills meant was criticized at the time as violating the separation of powers. While the Bush administration based its views on the language of the bills themselves, it was still a sticking point between the two branches.

President Obama took things to a new level with his declaration of “a pen and a phone” presidency. After a string of legislative successes in his first two years, Obama never again had an all-Democratic Congress to work with, so he explored the use of executive powers to accomplish his goals. Sometimes he would use those powers to do things that even he had previously said were unconstitutional, specifically his executive order allowing “dreamers” – children who came to the U.S. with parents who entered illegally – to remain in country. This step was notable in contrast to Obama’s previous declaration that such an action was outside the existing powers of the president.

When Donald Trump was president, he also toyed with expanding the powers of the presidency beyond what Congress had intended. The most notable example of this was probably Trump’s declaration of a national emergency to build a border wall. This declaration was not in line with what Congress intended with the creation of emergency powers, and a Republican Congress passed a resolution rebuking Trump for it. Trump vetoed this resolution, the first veto of his presidency.

Today’s Presidential Overreach

While the insertion of the child care mandate is the one making headlines, the Biden administration also inserted restriction on the use of American-made construction materials as part of their efforts to expand presidential power. Earlier in his presidency, Biden’s student loan absolution was something that then-House Speaker Nancy Pelosi explicitly said the president could not do without Congress. Biden went ahead anyway, and his action is currently being challenged in the courts.

For the past decade, students of our government have been complaining that Congress cedes too much power to the presidency. They are not wrong. Congress often passes large and vague bills, leaving administrations to sort it out. But the president has also been at fault. Presidents from the first Bush administration onward have steadily worked to increase the power of the presidency. Often they claim congressional inaction, but also there is a desire to get things done despite congressional, Constitutional, and procedural hurdles.

Our framers laid out a system with a separation of powers for a reason, and we, as a nation, should think very carefully before going further down this path towards the development of a unitary executive.

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