In the wake of the U.S. drone attack on Qassim Suleimani and the subsequent Congressional action to restrict further presidential military action against Iran, Andrew L. Johns, whose presidential address at the annual conference of the Pacific Coast Branch of the American Historical Association explored the appropriation of Congressional constitutional powers by the executive branch, offers his perspective on recent developments. A revised and expanded version of Johns’s PCB-AHA presidential address, “Declining the Invitation to Struggle: Congressional Complicity and the Rise of the Imperial Presidency” appears in the current issue of the Pacific Historical Review, which we invite you to read for free for a limited time.
On 3 January 2020, Major General Qassim Suleimani, the head of Iran’s security and intelligence forces, was assassinated in Iraq in an attack approved by President Donald Trump. The attack occurred without prior notification to Congress or any effort to seek congressional sanction. This should not be surprising to anyone who has paid attention to U.S. foreign relations and military actions over the past century. While Trump has asserted that he has “an Article II where I have the right to do whatever I want as President,” he is by no means the first commander-in-chief to unilaterally deploy U.S. military resources around the globe. Indeed, the deference of Congress to the president in foreign and military policy, combined with an aggregation of power to the executive at the expense of legislative prerogatives and congressional delegation of authority to the White House, has resulted in the creation of an imperial presidency and an irrelevant Congress.
Yet in the aftermath of the drone strike that killed Suleimani, a combination of Iranian rocket attacks and a series of belligerent and incendiary statements made by Trump inflamed tensions between Washington and Tehran, leading to fears of an escalated military conflict. In response, the U.S. House of Representatives voted on 9 January 2020 to force the president to seek congressional authorization before taking further military action against Iran. The partisan vote to curtail the power of the executive to wage war unilaterally represents a departure for Congress, which has not taken such aggressive steps to limit presidential authority in nearly five decades. More intriguing is the fact that some Republicans in the Senate—including Rand Paul (R-KY) and Mike Lee (R-UT)—have expressed skepticism regarding the president’s justification for the assassination. That these actions occurred during an election year makes these developments all the more remarkable, even though the concurrent resolution is only symbolic without the approval of the Senate, which will certainly not be forthcoming in the short term considering that the upper chamber has been preoccupied with the president’s impeachment trial.
Meanwhile, Senator Elizabeth Warren (D-MA) made headlines when she asserted that if elected president in 2020, she would forgive all student loan debt on her first day in office without waiting for Congress. Warren claims that the authority to do so through administrative action by the Department of Education is already available to the president under existing laws. To be sure, such dramatic action on her part would be wildly popular with the 44 million Americans who collectively owe over $1.6 trillion from their years in college–many of whom will be voting in the election this fall. Yet Warren’s broad interpretation of applicable law–which contains no explicit provision to cancel all student loan debt–reflects a combination of presidential overreach and extra-constitutional governance that should concern every citizen of the United States.
Warren’s proposal is only the latest in a series of assertions she has made with regard to using executive orders on day one of her potential presidency to ban fracking, impose a total moratorium on new fossil fuel leases, and expanding background checks for gun purchases–just to name a few. Framing these issues as crises invokes the notion of using expansive executive power to address them quickly while ignoring the ponderous legislative mechanisms of a divided, recalcitrant, and partisan Congress. Moreover, we have scores of statements from other presidential aspirants regarding how they would unilaterally employ executive power if elected. During the 2020 campaign, virtually all of the Democratic presidential candidates have expressed a willingness to act without explicit congressional sanction on a wide range of issues including immigration and gun control. Most of these actions would be constitutionally questionable at best. And we have seen Donald Trump and virtually all of his predecessors in the Oval Office use presidential powers and authority in a similar fashion, whether through executive agreements, executive orders, emergency declarations, or administrative actions that circumvent congressional involvement. That these politicians are willing to do so reflects the extent of the imperial presidency in both foreign policy and domestic politics.
These examples demonstrate the constitutional conundrum facing the United States in 2020. It is patently obvious that Congress has abdicated its role at the center of U.S. political life. As a result, the constitutional powers, authority, and prerogatives that should be exercised by Congress have been progressively appropriated by the occupants of the White House, both directly and indirectly. This, in turn, has made the country less democratic, more authoritarian, and decreasingly likely to solve complex problems that require a broad range of perspectives and thoughtful deliberation. Moreover, this takeover has created an added burden on an already impossibly complicated presidency, setting up the executive and the country for failure as Congress looks on from Capitol Hill, increasingly impotent and irrelevant. The impeachment trial of President Trump highlights only some of the recent problems that have resulted from this reality.
As my 2019 presidential address to the Pacific Coast Branch of the American Historical Association argues, the constitutional “invitation to struggle” between the executive and legislative branches in the United States has been largely declined over the past century. Yet the checks and balances of the constitutional framework not only allow but demand that Congress accept this invitation to participate fully in governance—especially since the executive will not stop seeking additional power. Whether through the courts, through congressional complicity, or by finding different ways to maneuver around constitutional and legal limitations, presidents will push the envelope to acquire power—often resulting in institutional and systemic instability. As citizens, we must demand that the constitutional balance of power be restored. The resolution passed by the House in response to the events in the Middle East is a good start, but much more remains to be done.