A nation of laws, not of men?

February 14, 2017

On January 20, our nation watched the transition of power from one president to the next, from Barack Obama to Donald J. Trump. Hundreds of thousands gathered to witness the miracle of our republic and to celebrate the 45th president of the United States.


For all the pomp and circumstance, the inauguration of a president is not the coronation of a king. The president, though one person, is constrained by the Constitution. Our nation is ruled by law, not by men or women.


Or at least that was the original intent.


In a 1977 interview with journalist David Frost, former President Richard Nixon offered quite a different view of the presidency, at least in the time of war, national security, "or in this case because of a threat to internal peace and order of significant magnitude." At those times, President Nixon said, the president's word is law:


[I]t has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we're all talking about.


President Nixon had, during his presidency, employed that philosophy when he approved the Huston Plan -- the systematic use of wiretappings, burglaries, and other nefarious, illegal activities directed toward antiwar groups and others amidst the Vietnam War, anti-government protests. Ultimately, the plan was withdrawn, but the president's initial approval of it was included in the Articles of Impeachment against him. President Nixon ran headlong into the rule of law and found his power checked by Congress.


Over time, though, the Legislative branch empowered the president to act well beyond Constitutional limits. Article I, Section 1 of the Constitution states that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.” Even so, Congress delegated its power to the Executive Branch, enabling the president to issue thousands upon thousands of rules, having the effect of law. (Take a look at the Federal Register rulebook -- the 2016 edition is over 80,000 pages long.)


The Administrative Procedure Act puts some limits on rulemaking, as did the Supreme Court in Whitman v. American Trucking Assns., Inc., which held that "when Congress confers decision making authority upon agencies Congress must ‘lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.'" Nevertheless, that hardly serves as much of a barrier to regulation by the Executive Branch.<