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The President Has Usurped the Constitutional Power of Congress

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  • 2-Minute Debate: The President Has Usurped the Constitutional Power of Congress

    Has the president usurped the Constitutional power of Congress? This debate short is part of a series co-produced by Intelligence Squared U.S. and Newsy.

  • Can the President Overstep His Powers When There Are Checks and Balances?

    Clip: Debaters argue if the President can overstep his Constitutional authority when there are checks and balances in place.

  • War Power and Implied Consent

    Clip: An audience member asks, “How does implied consent of Congress affect Presidential powers?” Example: the President has exercised his power to declare war without first getting Congress’ approval.

  • Volley Round: The World Has Changed with Regard to Executive Power

    Clip: Debaters discuss what a different world we live in today compared to when the Constitution was written.

Debate Details

The Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States," and it goes on to grant Congress a robust-and fearsome-list of powers. James Madison assumed that "[i]n republican government, the legislative authority necessarily predominates," and he cautioned that the legislative department may tend to "draw[] all power into its impetuous vortex." But modern politics and law seem to tell a quite different story. With executive orders, administrative regulations, creative interpretations of federal statutes, and executive agreements with other nations, it may seem that the President, not Congress, is, in effect, wielding the most potent legislative power. Indeed, the Supreme Court is currently poised to decide whether President Obama's unilateral immigration actions usurped Congress's power and flouted his duty to "take Care that the Laws be faithfully executed." But some argue that this is nothing new: they say that the President is not exercising legislative power; he is simply exercising his well-established executive discretion. Is Congress still the most powerful branch, or is this the era of the imperial presidency? Has the President usurped Congress's legislative power?

The Debaters

For the motion

Michael McConnell

Director, Constitutional Law Center & Professor, Stanford Law School

Michael McConnell is the Richard and Frances Mallery Professor of Law and director of the Constitutional Law Center at Stanford Law School, as well... Read More

Carrie Severino

Chief Counsel & Policy Director, Judicial Crisis Network

Carrie Severino is chief counsel and policy director of the Judicial Crisis Network. In that capacity she has testified before Congress on assorted... Read More

Against the motion

Adam Cox

Professor, New York University School of Law

Adam Cox is the Robert A. Kindler Professor of Law at New York University School of Law, where he teaches and writes about immigration law, constitutional... Read More

Eric Posner

Eric Posner

Law Professor, University of Chicago

Eric Posner is a legal scholar and frequent media commentator, having written op-eds and columns for a number of national publications including the... Read More

Where Do You Stand?

For The Motion
  • The Framers separated the powers of government into three branches and established a system of checks and balances to guard against abuse of those powers. There has been a pattern of overreach by the executive branch. As James Madison wrote in Federalist No. 51, "[i]n republican government, the legislative authority necessarily predominates."
  • With executive orders, administrative regulations, creative interpretations of federal statutes, and executive agreements with other nations, it may seem that the president, not Congress, wields the most potent legislative power.
  • Article II, Section 3 of the Constitution states that the president “shall take Care that the Laws be faithfully executed,” a duty Obama flouted by taking unilateral action to suspend the employer mandate of Obamacare, and through his executive orders on immigration, DACA and DAPA.
  • The Constitution clearly states Congress alone has the power to declare war. Obama exceeded his authority by waging war in Libya without congressional consent.
  • The president’s use of recess appointments is, as Justice Scalia wrote, “[a] self-aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by [the Supreme Court].”
Against The Motion
  • Strong executive power has been necessary for an effective and functioning government. The Framers feared the abuse of power, but they also feared a weak executive unable to enforce the laws of our nation. In Federalist No. 70, Alexander Hamilton argued for a strong, “energetic” president, writing that “[a] feeble Executive implies a feeble execution of the government.”
  • Over time, Congress has given the president enormous discretion to determine our nation’s policy.
  • With DACA and DAPA, the Obama administration has exercised prosecutorial discretion to make the best use of limited resources to prioritize the removal of undocumented immigrants who pose a threat to security, and defer the removal of others.
  • The president has authority to use military force without a declaration of war. The Libya intervention fell short of war—it did not involve sustained fighting or ground troops—and fell within the limits of the War Powers Resolution.
  • On presidential recess appointments, Justice Breyer wrote, that we should be reluctant to “upset this traditional practice where doing so would seriously shrink the authority that presidents have believed existed and have exercised for so long.”

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The Research

The Research

Why Obama’s Immigration Order Was Blocked

February 17, 2015
The injunction isn’t about prosecutorial discretion. It is about granting illegal aliens benefits not allowed by law.

Obama’s Unconstitutional Immigration Order

April 13, 2016
The Framers adopted the Take Care Clause to ensure that the executive in this republic is likewise forbidden to make law unilaterally. That is why the duty to “take care” means so much.

Executive Unilateralism: Who Decides the Immigration Laws?

February 3, 2015
Audio: McConnell discusses the constitutionality of President Obama’s recent executive action order on immigration.
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