The Presidency Has Become Too Powerful

It’s long past time for Congress to reassert itself.

One of the first lessons American students learn about their government is the concept of “checks and balances”: our democracy is a constant tug-of-war between the legislature, the executive, and the judiciary, each of which is responsible for checking the other such that none of them ever grows too powerful. This was intentional, as the founding fathers were wary of allowing too much power to be accumulated in the hands of any one branch—especially the executive.

To check the head of the executive branch (the president), the founders prescribed—in the very first article of the constitution—many of the responsibilities of governing to the legislature, including writing laws, appropriating taxpayers’ money, and conducting oversight of the executive branch. The power of the president, by contrast, was highly constricted. The office was to be primarily concerned with conducting the nation’s foreign policy, overseeing the military, and implementing domestic laws as Congress instructed. The founders of course had good reason to be wary of a powerful executive: they were fleeing the tyranny of a king.

Yet, for decades now, Congress has increasingly ceded more of its power to the president, skewing the balance between the three branches. Some of this has been out of legislative interest (to speed up certain decision-making processes) or self-interest (members of Congress generally don’t like to take difficult votes, so it can be easier to just empower the president to make tough calls¹). Presidents have assumed more power for themselves as well, interpreting ambiguities in congressional laws to align with their own policy preferences.² Even some of the presidency’s constitutional powers are clearly capable of being exploited for political expediency, as we saw just this past month with two different presidents’ highly controversial pardons.

Even more troubling? Many people in both parties are beginning to warm to the idea of a more powerful executive. A 2023 survey from UVA’s Center for Politics found that 31 percent of Biden voters and 37 percent of Trump voters favored “giving the president the authority to bypass Congress.” The same project has also previously found that large majorities of both sets of voters think “our country needs a powerful leader in order to destroy the radical and immoral currents prevailing in society today,” and near-majorities say it “would be better for America if whoever is president could take needed actions without being constrained by Congress or the courts.”

There are a couple of apparent reasons why many Americans have opened themselves to the idea of a stronger executive. One is practical: the checks and balances that keep majoritarian impulses at bay can also serve as obstacles to achieving meaningful progress and delivering for the public. At a time when the global economy is rapidly changing and many feel left behind, a system of government that has trouble keeping up may appear useless. (This is a good argument for reforming Congress to make it more responsive.)

But there’s also another, more worrisome reason. In another Center for Politics survey, fully 75 percent of Biden voters and 78 percent of Trump voters at least “somewhat” agreed that Americans who “strongly support” the other party “have become a clear and present danger to the American way of life.” If this is true, it means it’s possible that not-insignificant shares of Americans are simply becoming less willing to be governed by their political opponents. Some may even start entertaining the idea that they won’t have to live in that world if their preferred candidate wins the presidency—and if that person is given enough power.

In this context, it’s easy to see how the stakes of presidential elections will grow as the presidency becomes more powerful, and how Americans of each party may be inclined to give their president more power when they’re in charge. And as these stakes grow, anti-democratic behaviors taken in pursuit of claiming—and retaining—that power are virtually guaranteed to become more commonplace, threatening the country’s experiment in self-government.

This is why it is paramount that Congress reassert itself and reclaim—or even claim for the first time—powers that are ripe for abuse in the hands of the president. Let’s consider a few ways they might do this.

Tariff power

It may come as a surprise to anyone who has followed the news over the past few weeks, but the power to set import tariffs constitutionally falls under the purview of Congress, not the president. However, Congress has increasingly delegated this power to the president over the past century.³ Setting aside questions about the policy merits of tariffs, they were never meant to be a tool for presidents to unilaterally conduct trade policy, but many have used them this way, including both Biden and Trump. Most recently, Trump claimed emergency authority to levy tariffs under the International Emergency Economic Powers Act of 1977. Congress could amend that law (and others) to reclaim those powers—or at least set stronger limits on them.

Pardons and commutations

Among the most controversial powers held by the president is the ability to grant clemency to anyone they want. With the stroke of a pen, presidents can grant full immunity to someone convicted of a crime in a court of law. While clemency powers can serve a useful purpose in correcting past wrongs, recent events show just how much room there is to abuse them.

Biden became the first president to ever administer a pardon for his son (who was criminally convicted) and also preemptively pardoned others—including more family members—all of which prompted criticism of nepotism and favoritism. For his part, Trump issued a “full, complete and unconditional” pardon of people who violently attacked the Capitol building on January 6 and has toyed in the past with the idea of a “self-pardon.” All this risks incentivizing bad behavior from future presidents and people in their orbit if they know there will be no consequences for their actions.

It is therefore worth considering whether Congress should either take these powers for themself, in full or at least in part. One interesting reform proposal, suggested by UMB law professor Ben Yelin, would essentially be modeled after the Congressional Review Act:

• After a president issues a pardon, it would not go into effect for 45 days.

• During that period, Congress can pass a joint resolution of disapproval, which would not be subject to a filibuster in the Senate.

• The resolution would be presented to the president, who could sign or veto. In the case of a veto, Congress could override it with a two-thirds majority.

• If the resolution does not pass or veto is sustained, the pardon goes into effect.

• If resolution is signed or veto overridden, the president cannot issue a pardon for that individual for the remainder of that term.

There are surely other interesting reforms as well—Congress could even push to abolish the pardon power or claim it for themselves.⁴ However, because this power is prescribed to the president under the constitution, it would take an amendment to change anything, which is of course is easier said than done. Moreover, the party that controlled the White House would almost surely resist. One way to change that calculation would be to propose an amendment that does not take effect until the start of the next president’s term. This way, neither party knows who will be in office, and they may both see an opportunity to diminish the other’s power.

Executive Orders

Like tariffs, some may be surprised to learn that the power of the president to issue so-called “executive orders” (EOs) is not explicitly outlined in the constitution. Over time, the courts have ruled that the president’s authority to issue them is an inherent part of presidential power. Some EOs are meant to direct federal agencies to take specific actions, which is within a president’s purview, while others are little more than an effort to bypass Congress to implement the president’s agenda.⁵

Perhaps the most memorable EO during Biden’s tenure was his attempt to forgive student debt on his own. The courts decided he had no authority to do so, but it didn’t stop him from trying again. Trump has similarly issued high-profile EOs, including his bans on people traveling to the U.S. from several Muslim-majority countries, the creation of the DOGE program (which even some Republican senators have acknowledged doesn’t pass constitutional muster), and, most recently, an apparent effort to abolish the Department of Education.

Whether or not any given EO ultimately passes constitutional muster, the continued push by presidents of both parties to usurp more legislative authority for themselves risks further expanding the scope of the presidency and crowding out the legislative branch, which is where laws affecting most of Americans’ daily lives are meant to originate. Congress does, of course, have the authority to override presidential directives by passing their laws, but it’s nearly impossible to do that unless the opposition party controls Congress with veto-proof majorities.

As with limits on pardon powers, reining in EOs might require a party with a trifecta agreeing to limit their own president’s power to pass such reforms. This means at least one of the two parties must clearly understand that what goes around comes around, and that EOs passed by their party will almost surely be undone by a future president of the other. Better to ratchet down this never-ending tit-for-tat than to let it spiral out of control.

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Many people seem to take a myopic view of the presidency: they want it to be powerful when their party is in charge but not when the other party has control. But a politics that holds different standards depending on who has power is neither right nor sustainable. The founders’ original intent was that the legislature, not the president, be primarily responsible for lawmaking, and they feared the concentration of too much power in the hands of just one person. It’s time Americans started reckoning with this history again.

Still, the reality is that any reforms to the presidency will require at least one of the two parties to take active steps to curb these powers while they have it. A Republican president will never accept limits on his power from a Democratic Congress and vice-versa. But as America’s politics grow more polarized and the stakes of winning the highest office in the land become greater, it’s vital we address these questions now.

1. It’s worth noting, for example, that Congress has not made a formal declaration of war since World War II—even though the U.S. has been engaged in numerous foreign conflicts since then.

2. Last year, the Supreme Court tried to rein in the executive branch by striking down this practice.

3. In fact, Congress hasn’t set new tariff rates since the 1930s.

4. Of course, given that Congress is often reluctant to take difficult votes—issuing pardons could easily come back to bite them—the latter option seems less likely.

5. EOs are not federal laws, but they often carry the same impact.