Effective presidents must work with Congress rather than go it alone. Fortunately, the courts have begun to encourage such cooperation.
Effective presidents must work with Congress rather than go it alone. Fortunately, the courts have begun to encourage such cooperation.
I t’s fashionable these days to worry about growing presidential power. And it’s true that presidents today can do many things the Founders never intended. For one, the agencies they supervise can resolve the weightiest policy questions through regulations that bear the force of law, just as statutes do. The Founders would be shocked to see presidents exercise the lawmaking authority the Constitution vested in Congress.
But as another presidential election looms, we are struck just as much by the presidency’s impotence. For statutes offer something that presidents need but that regulations lack: permanence. Landmark legislation, once enacted, is here to stay; that’s why Americans still live under legislation passed decades or even centuries ago. Regulations, meanwhile, can be easily altered, and they often are: President Biden has rescinded almost all of President Trump’s signature regulations, just as Trump reversed President Obama’s regulations and Obama undid President Bush’s. If Trump is reelected this November, we’ll see agencies once again scramble to rescind regulations they issued in the months leading up to January 20.
The consequence is that presidents, though they regulate, de-regulate, and re-regulate with increasing gusto, struggle to make their mark in history. They have immense power for four or eight years but little ability to make permanent change. Their legacies, at least where domestic policy is concerned, evaporate on contact with their successors’ agendas.
The Founders had good reasons to give Congress, but not the president, power to confer permanence. The presidency is designed for action — for the swift, effective decision-making needed above all in war. There, making a decision is often more important than making the best decision, and unity of command matters more than giving everyone a seat at the table. But in legislation, the opposite is true. Measures meant to stand for decades or centuries need to be produced through the give-and-take of robust debate. And in a country dedicated to self-government, citizens of all walks must know that the lawmaking process reflects their interests and views. Only Congress, with its broad representation and penchant for negotiation, can hammer out a working popular consensus that is fit to last.
Presidents who desire lasting change need Congress to bless their policy programs with permanence. But legislation requires more time than regulation and, more importantly, compromise with the other side, and modern presidents often cannot afford either. As early as 1788, Alexander Hamilton explained that presidents would feel compelled to reverse each other’s measures, because to “undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert.” People’s demand for an energetic president, combined with the regulatory powers of the modern executive branch, creates immense pressure for presidents to deliver sensational but fleeting regulatory wins rather than less showy but more solid legislation.
We need, then, a way to force presidents to work with Congress rather than go it alone. The Constitution’s system for lawmaking was designed to do just that. But fateful choices by both Congress and the Supreme Court have undermined that process. Congress has passed statutes delegating broad, open-ended powers to the executive branch. And the Supreme Court has upheld these delegations.
We need a reinvigorated Congress unafraid to take on the most controversial questions rather than sending them to the executive for resolution. And we need a Court that holds Congress to its legislative duties rather than enabling its members to avoid responsibility.
Happily, the Court has begun to act. Just last term, the Court overturned the Chevron decision, which for 40 years required courts to defer to agencies’ interpretations of ambiguous statutes. Chevron had broadened the scope of executive power under existing statutes and thus undermined presidential incentives to work with Congress.
The Court has taken another important step forward with the major-questions doctrine. Under that doctrine, when a federal agency claims the power to issue a rule of vast economic and political significance, it must point to especially clear congressional authorization to do so. This prevents agencies from stretching vague, old delegations to exercise new powers Congress did not intend to give away, in turn pressing the president to negotiate with Congress when seeking new powers to address new problems.
A good example is student-loan forgiveness. While running for president in 2020, Joe Biden repeatedly promised he would eliminate significant amounts of student debt. When Congress refused to pass a bill authorizing his scheme, the Biden administration tried to forgive around $450 billion using the HEROES Act, a statute originally designed to assist military personnel following 9/11. The Supreme Court blocked that maneuver. Because canceling student loans was an economically and politically important move, the Court required the Biden administration to identify clear and specific legislation authority for its actions. And, the Court held, the HEROES Act did not supply such power.
What gives the judiciary the power to block the president from repurposing old statutes to claim new powers? One of us has outlined several justifications, but we’ll mention just two here. Justices Thomas, Alito, Gorsuch, and Kavanaugh have rooted this rule in the Constitution. As Chief Justice Marshall recognized in 1825, Congress may delegate the power to “fill up the details” of government policies to others, but Congress must resolve “important” policy issues itself. As Justices Gorsuch and Kavanaugh have explained, the major-questions doctrine enforces that rule by requiring Congress to either decide critical policy questions or clearly delegate their resolution to agencies.
Justice Barrett has persuasively argued that the major-questions doctrine is simply good textualism, and that Congress does not subtly delegate major powers to agencies using vague language. As she memorably explained, if a parent hands a babysitter a credit card and says “make sure the kids have fun,” it would be reasonable to buy the children pizza, but not to fly them to Paris.
Continued invocation of the major-questions doctrine protects Congress’s power by ensuring that our elected representatives play a meaningful role in addressing pressing policy questions. Only when they do so can presidents escape the cycle of futility that afflicts holders of the office today.
— Paul Ray is the director of the Heritage Foundation’s Thomas A. Roe Institute for Economic Policy Studies and former administrator of the Office of Information and Regulatory Affairs. Louis J. Capozzi III is a former U.S. Supreme Court clerk, an appellate lawyer at Jones Day, and a lecturer in law at the University of Pennsylvania Carey School of Law. The views expressed herein do not necessarily reflect those of Jones Day.