Presidential Unilateralism is a Legitimate Part of Constitutional Government
Presidential Unilateralism is a Legitimate Part of Constitutional Government
Sarah Burns, Rochester Institute of Technology
The three branches of the federal government have unique advantages and disadvantages that should make “ambition. . .counteract ambition” to create a functional government. The executive branch exercises strong powers enforcing the law within the separation of powers. The president can constitutionally issue executive orders creating policy in the constitutional system.
The executive needs to have “energy” and “dispatch” to effectively carry out the role of the president, as Alexander Hamilton wrote in Federalist #70. The president enforces the laws, secures the safety of the people, and, from time to time, makes recommendations to Congress about the State of the Union or informs them about a pressing matter that needs the legislature’s attention. In contrast to the singularity that promotes the proper functioning in the executive branch, Congress, as the deliberative body, should be populated by a large body of people from diverse backgrounds. This organization helps facilitate compromise across all the different interests in the United States while attempting to diminish the power of a tyrannical majority (or minority). Finally, the judicial branch has neither “purse nor sword” and cannot adjudicate on any matter until it is brought before the Court, as Hamilton wrote in Federalist #78. Even then, they must carefully apply the law rather than attempting to imbue their decisions with their political views. They are not answerable to any political constituency, which makes it possible for them to remain above the fray associated with the politics of the time.
There are times, however, when the system either breaks down or falls victim to the large number of vetoes that exist to slow down the legislative process in the U.S. system. One of the most difficult things to accomplish is the creation and passage of a law. That is by design. As Hamilton notes in Federalist #73, it is the “inconstancy and mutability in the law, which forms the greatest blemish in the character and genius of our governments.” When Madison surveyed the problems under the Articles of Confederation, he noticed that state legislatures were sowing confusion by passing too many laws and, in some cases, laws that contradicted each other. The multiplicity of laws made it difficult for citizens to know what was and was not legal. This confusion was a grave danger to stability. During the Constitutional Convention, he and others worked hard to ensure that only the most necessary laws created by reason rather than passion were likely to become federal law. There was one final check on the constitutionality of the laws: the courts. As John Marshall wrote in Marbury v. Madison (1803), the judiciary has the capacity to engage in judicial review of the laws and strike them down if they are unconstitutional.
These restrictions on the passage of “bad” or “unnecessary” legislation provided a great deal of stability in the nation during stable, peaceful eras. It did, however, make it difficult to pass legislation in times of great political division. It can take a long time to pass laws, and there are often times when areas of the country or the entire country overwhelmingly call for a speedier solution. At times like these, it is possible that the executive will attempt to reach the “ceiling” of the office’s power by attempting to act by executive action prior to or without any laws passed by the legislature. The president may feel a duty to the country to act. The executive is duty bound by the oath of office to “faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
The ceiling of executive power comes in the form of the legislature constraining presidential action if he acts unilaterally. When this occurs, the legislature has four options: oppose the president by passing legislation undoing his actions; support the president with legislation; avoid passing or failing to pass any legislation; or appeal to the courts to intervene (though they are rarely successful when they attempt this course of action).
During moments of high polarization, it is difficult, if not impossible, for Congress to achieve consensus and pass significant legislation on controversial issues. Quite recently, Congress attempted to pass comprehensive immigration reform. They had not achieved this goal since the 1980s, when Ronald Reagan worked with Romano L. Mazzoli (D-KY) and Alan K. Simpson (R-WY) to craft a bill granting amnesty to those who came to the country illegally, as well as toughen controls on those who sought to enter the country illegally. Some claimed it only accomplished the first of these two goals, which caused many to distance themselves from any further discussions about major changes to immigration.
For over a decade, Congress made minimal effort to alter the still problematic immigration system. During George W. Bush’s administration, there were two failed attempts. During Barack Obama’s first term, he created a controversial executive order that allowed anyone who came to the United States illegally as a child to enjoy legal status if they came forward and provided proof, called the Deferred Action for Childhood Arrivals (DACA). Over half a million people are now in the program. A year later, there was a strong bipartisan effort to create immigration reform. The legislation would create more security at the border and make it more challenging for employers to hire undocumented immigrants. It passed the Senate but failed in the House. In 2014, Obama announced a memorandum called Deferred Action for Parents of Americans (DAPA) that would create deferred action for the parents of DACA, but Donald Trump rescinded this protection when he came into office in 2016.
In his first administration, Trump created many more restrictions in the name of national security. He issued Executive Order 13769, banning refugees from Iraq, Iran, Libya, Somalia, Sudan, and Yemen. The courts struck down several iterations of the ban, but the Supreme Court eventually upheld a version. He also cracked down on illegal immigration on the border with Mexico. Besides his many executive orders on the topic, he also wanted to build a border wall. He asked Congress to pay for the wall, and it provided some funding. In 2019, he used the national emergency powers to redirect funding from the Department of Defense to pay for some construction. While some denounced his policies as too severe, the number of migrants reported crossing the border peaked in March 2019 at 132,856 and dropped to a low in April 2020 at 16,182. He continues to implement significant changes in his current administration.
Under Joe Biden’s Administration, encounters at the border spiked. While there was a valiant bipartisan attempt to pass immigration reform in the spring of 2024, it ultimately failed. Seeing the continued problem of illegal immigration at the border, Joe Biden created an executive order to address the problem. Arguably, as a result of that new policy, immigration dropped.
There will be times when the president has to use the power of “first mover” to achieve a realizable goal (like improving the security of the border) when Congress fails to act. If the president is acting in the best interests of the country, it would seem improper to avoid using tools at his disposal. At all times, Congress remains capable of supporting or opposing the executive; they need merely assert their constitutional powers to pass laws.
