The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Now That Democrats Have Failed in Their Attempt to Remove the President from Power,
it's worth asking why they haven't seriously considered the reverse: removing power from the president."
Well put, by Matt Welch here at Reason. An excerpt:
The Democratic presidential field, with the notable exception of faltering front-runner Joe Biden, has been engaging in a race to see who can make the most elaborate promises of immediate executive action. Forget 100 days; we're now talking 100 hours to see what that magical Oval Office pen and phone can do.
On Day One, President Elizabeth Warren would wipe out student loans for 42 million people, ban fracking "everywhere" and block any future fossil fuel leases on public lands and offshore. We are still awaiting the full Day One list from a future President Sanders, but we know it includes an executive order to "legalize marijuana in every state in this country."
Legalizing marijuana is a wonderful and long-overdue idea, but Sanders' way of getting there is not. Federal law, including the odious Controlled Substances Act, is constitutionally required to originate from or be struck down by either Congress or constitutional amendment. A presidency with enough power to legalize Activity X irrespective of Congress or the desires of states is a presidency with enough power to criminalize that same activity when the other team wins. It's a seesaw of authoritarianism, and we should all want to get off.
Of course, Republicans generally aren't much eager to diminish the scope of executive power, either, at least so long as they have it or expect to have it. The Framers' theory was that members of Congress, because of their roles and their own political ambitions (which, for most, don't extend to the Presidency), would work to protect Congressional authority and rein in Presidential authority; alas, we haven't been seeing much of that.
