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The Problem Is Not the Presidential Candidates

We should always be on guard against presentism, but in this instance I do not hesitate to say that the upcoming presidential election is the most alarming in American history. I can make that statement with confidence because I do not believe the most disturbing aspect of the election is the choice of candidates – even though the two major party nominees present the worst choice the American people have faced in my lifetime (Eisenhower was president when I was born), and perhaps ever.

The reason this is such a frightening election is that the Constitution’s mechanisms for reining in or ousting a rogue president are in tatters.

We are not supposed to have transformative elections, contests that will forever change our system of government or enable government to orchestrate cultural upheaval. The Constitution is supposed to be our guarantee against that.

A couple of years ago, I wrote a book called Faithless Execution in an attempt to explain this and campaign, in my own small way, for a restoration. The theory I posited was straightforward. Among the greatest fears of those who founded our constitutional republic was that the powerful new office they were creating, the President of the United States, could be a path to authoritarianism and eventual tyranny. Much of the deliberation over the drafting and adoption of the new Constitution was dedicated to ensuring adequate safeguards against that possibility.

The Constitution’s aim is to preserve liberty and self-determination. Its prescription for doing so is to constrain government (and thus increase the realm of free, unregulated activity) by limiting and dividing governmental powers. Federal authority was balanced by states that maintained sovereign power. The limited powers delegated to the federal government were divided among three branches, each given sufficient inherent authority that it could not be overwhelmed by the others.

To prevent the president from becoming a monarch, the Framers made Congress supreme over the budget and the enactment of law. With limited inherent authority (albeit significant authority, particularly in the conduct of foreign affairs), the executive would not be permitted to act in the absence of statutory license and funding. Indeed, the president’s primary responsibility is to take care that Congress’s laws are faithfully executed and the Constitution is preserved.

Yet, realizing these grants of legislative power would be insufficient to hem in a determined rogue, the Framers added impeachment – an “indispensable” remedy, as Madison put it. It empowers Congress to remove government officials, up to and including the president, for “high crimes and misdemeanors” – corruption, abuse of power, misleading Congress, collusion with foreign powers against American interests, and other profound violations of the public trust.

Thus, besides the ballot box, the most vital limitations on presidential power are Congress’s powers to control spending and impeach. These were thought sufficiently strong checks that, for over 160 years, the president was not even term-limited (i.e., until the 22nd Amendment in 1951). This confidence owed to the principle that members of Congress had a solemn duty to defend their institutional authority and the constitutional framework. In essence, the president can act as a rogue only if Congress allows that to happen.

As I argued in Faithless Execution, while Congress’s powers to thwart abuse of presidential power are dispositive, there are, really, only two of them. If Congress refuses to use its authority to limit or cut off funding, the only remaining limitation is impeachment. If, in addition, Congress takes impeachment off the table, there is nothing left but a rogue president’s subjective sense of what he (or she) can get away with politically. The same, obviously, is true of the president’s subordinates: If, despite their lawlessness or incompetence, Congress maintains (or increases) their budgets and shrinks from impeaching them, then they are limited only by the whims of the rogue president they serve.