On assuming office, presidents parlay decisive victories into mandates, as if the size of the national vote they secured gives them license to ignore all Constitutional constraints.
Nowhere is this more exaggerated than during the first 100 days of a president’s term, a period characterized by a flurry of presidential activity, relying heavily on unilateral executive actions as a way to ram through policy without the bother of the legislative branch.
The concept of the first 100 days as a time of intense executive energy goes back to Franklin D. Roosevelt, a president who so transformed the structure and scope of government that political scientists refer to federalism differently before and after his administration. Using the Great Depression as justification, Roosevelt rammed fifteen bills through Congress, created numerous new executive agencies, and even reshaped the nation’s banking system.
FDR’s administration, sadly, is no aberration but rather the benchmark for more modern presidents, who focus on fulfilling overblown campaign promises that often hinge on powers the president doesn’t really have.
And even when the president does have the authority to act, the 100 days agenda often normalizes the idea that the president can and should make policy decisions.
Constitutionally, of course, this is nonsense. Article I delegates “all legislative powers” to Congress. The closest the Constitution comes to giving the president power to make public policy is his authority to make treaties. But even this must be done under the supervision of the Senate.
Yet, in his first day in office, Joe Biden plans to “rescind the travel ban on several majority-Muslim countries, rejoin the Paris climate accords, extend limits on student loan payments and evictions instituted during the pandemic and issue a mask mandate on federal properties and for interstate travel.”
Thanks to the creeping powers of the executive, these are mostly things the president has the power to do: the so-called “Muslim ban” was enacted by President Trump, as was the decision to withdraw the United States from the Paris climate accords. The eviction moratorium, again enacted at the behest of Trump, is more Constitutionally troubling.
But, for the most part, policy that has as its root an executive order is subject to being overturned by successive administrations. And that’s a compelling argument for vesting legislative power in Congress, not the presidency. When whole swaths of public policy are reversed every time the administration changes, there’s a tendency to view this through the lens of power politics: the victorious party gets to sit back in smug righteousness and congratulate themselves for doing something “for the good” and simultaneously gutting their opponent.
But fluctuations in regulation and the law create uncertainty that costs businesses money and creates existential uncertainty for certain members of the public. Concern for individual rights should preclude any behavior that undermines personal security, no matter the political party involved.
The Congressional process is fractured and slow-moving and while that can be frustrating, it also helps protect people’s rights. The same can’t be said for executive actions, which hinge on the impetus of one man and on the rationale of one man. This is more in keeping with a monarchy than with a country that claims to love rule of law.
Presidents have the ability to make these kinds of policy decisions thanks to Constitutional drift and the growth of the regulatory state. And their ability to rightfully use their power to make policy decisions helps normalize the idea that the executive should do this.
And that leads to expansions of executive power. When presidents do things like withdraw and enter the country into treaties at-will, the vast majority of people, unfamiliar with the nuances of government, will accept not only this action but other actions that are improper.
Take the eviction moratorium. At the behest of Trump, the Centers for Disease Control and Prevention (CDC) enacted a statute originally designed to be wielded by the Surgeon General that gave that office power to craft regulation to stop the spread of disease between states. The CDC interpreted this in a way that used the coronavirus as an excuse to stop landlords from evicting tenants.
This action was pretty clearly unconstitutional, not in the least because the statute at the heart of it doesn’t grant this power, but also because states, not the federal government, have the proper power to act here. The federal government might have been able to apply such actions to federally-funded housing projects, but the moratorium also applied to private residences.
Nor is this aberration of power going to die with the Trump administration; Biden plans to extend it.
There is a slight difference in Biden’s approach: he’s going to call on Congress to extend the ban. And while Congress is the proper branch to consider such a policy, there’s still no reason to cheer this as an act of Constitutional restraint.
In the first place, there’s nothing to indicate that Biden won’t use executive power to extend the ban should Congress fail to act in the way he wants to. Thanks to the precedent set by the CDC, he could credibly claim he has the ability to do so.
And that’s the real problem: there are now overtones of executive supremacy over the legislative branch to the future of this policy. The eviction moratorium didn’t come up through normal legislative channels; it’s been transferred from the executive to the legislative branch, like legislative approval is some kind of afterthought rather than a Constitutional necessity.
It’s like Biden is bringing the legislature in to consult on this policy. Nor is that aesthetic unique to the eviction moratorium. It’s ingrained in other items on Biden’s 100-day laundry list, like the sweeping immigration reform bill he plans to introduce.
There’s the suggestion there that Congress should defer to the policy wishes of the executive branch. As if the executive has some kind of right to set the tenor of public policy during his time in office and Congress some duty to consider it… And this is wholly unfounded.
This relationship paints Congress not as its Constitutionally written–as a branch independent of the executive with an equal claim to its root power and a greater share of responsibility for managing government–but as something subservient to the executive will, which is supreme.
Congress should reassert its authority by refusing to defer to the executive’s wishes. It should set its own legislative timetable and rebuke the idea that the president has some special right to act in the first 100 days.