Skip to content
Search

Latest Stories

Follow Us:
Top Stories

At the next debates, ask about things a president can do

Opinion

Democratic debate

Democratic presidential candidates debate at the Fox Theater in Detroit.

Scott Olson/Getty Images

Marcum is a governance fellow at R Street Institute, a nonpartisan, pro-free-market, public policy research organization.

July's Democratic presidential debates highlighted a number of important national issues. From health care to economic inequality, candidates offered many purported solutions. The vast majority of these ambitious plans, however, face a fundamental constitutional roadblock: Congress.

Without congressional support, plans such as Medicare for All or amending the Immigration Nationality Act are dead on arrival. Voters, candidates and media alike are well aware that Senate Majority Leader Mitch McConnell would prevent any such legislation from passing his chamber, and if Republicans take the House, the chances for passage are even slimmer.

But if you were completely unfamiliar with American civics, you might have assumed from watching the debates that a president's role is to make policy and lambaste Congress when it does not comply. But of course, all legislative power rests with Congress. Viewers of the debates would be better served by questions that illuminate the presidency's actual institutional roles. These responsibilities are vital for governing, but we often fail to press candidates about them until it is too late.


The president is the commander in chief and has the responsibility to "take care that the laws be faithfully executed." The president also possesses the power to nominate federal judges and high-level federal officials who oversee the workings of an ever-expanding executive branch.

Legal scholars and government lawyers often discuss the "inherent powers" of the presidency, which include the power to issue executive orders. We should want to know how, as president, the Democratic candidates would wield this power. Last month, for instance, Sen. Kamala Harris tweeted that, as president, she would "give Congress 100 days to put a gun safety bill on [my] desk for signature." If Congress failed to do so, she would "take executive action." What sort of executive action would she take? Does she believe, as president, she could impose an executive order as broad or as wide-reaching as any law imposed by Congress?

Such executive orders would certainly face legal challenges. The Trump administration's own regulatory decision to ban bump stocks was quickly challenged and continues to be litigated in federal court. Would Democratic candidates implement a similar regulatory strategy? Presidents appoint numerous senior officials to the Department of Justice. If the bump stocks case remains unresolved under a Democratic administration, would these new senior legal officials continue the charge? The Trump administration has been routinely criticized for its eagerness to reverse legal arguments raised during the Obama administration. Would a Joe Biden administration just as quickly return to Obama-era positions?

Beyond inherent powers, candidates have spent little time discussing roles specifically tasked to presidents by the Constitution. Consider the president's power to nominate high-level federal officials and judges. Who would Sen. Elizabeth Warren nominate to lead the Department of Health and Human Services if she becomes president? Who would Sen. Bernie Sanders tap to run the Department of the Treasury if he does? Criminal justice reform has been a hallmark of Sen. Cory Booker's platform. Would he pledge to name an attorney general who has experience as a public defender or serving nonprofit legal clinics?

As the third branch of government, the judiciary often gets third-rate consideration on the campaign trial. That was different in 2016, and now President Trump and Senate Republicans often cite the confirmation of dozens of federal judges as their greatest political achievement. But the only real discussion of the judiciary among Democratic candidates has concerned proposals to add seats or set term limits on the Supreme Court, even though the former holds bipartisan opposition and the latter would require amending the Constitution.

Federal judges serve for life and the ramifications of their decisions will last well beyond any one administration. But in the July debates, no Democratic candidates were asked about the judiciary. Yet over the same 48 hours, the Senate confirmed an additional 13 federal judges. Candidates should consider this disconnect. And in the next round of debates, they should tell us whether they have a draft list of qualified candidates for the Supreme Court, just as Trump did when he was the GOP nominee.

The presidency is a unique and powerful role. Yet too often, platforms and campaign promises sidestep the important constitutional responsibilities of the commander in chief. In addition to legislative priorities, candidates should answer how they intend to use the powers of the presidency. Doing so will be helpful for voters and perhaps cast a wider and more recognizable divide between the current presidential nominees.


Read More

The Puncher’s Illusion: Winning the First Round and Losing the War
Toy soldiers in a battle formation
Photo by Saifee Art on Unsplash

The Puncher’s Illusion: Winning the First Round and Losing the War

In the Rumble in the Jungle, George Foreman came in expecting to end the fight early.

At first, it looked that way. He was stronger, faster, and landing clean punches. I watched the 1974 championship on simulcast fifty-two years ago and remember how dominant he was in the opening rounds.

Keep ReadingShow less
Calling Wealthy Benefactors!
A rusty house figure stands over a city.
Photo by Katja Ano on Unsplash

Calling Wealthy Benefactors!

My housing has been conditional on circumstances beyond my control, and the time is up; the owner is selling.

Securing affordable housing is a stressor for much of the working class. According to recent data, nearly 50% of renters are cost-burdened, meaning they spend over 30% of their take-home income on housing costs. Rental prices in California are especially high, 35% higher than the national average. Renting is routinely insecure. The lords of land need to renovate, their kids need to move in. They need to sell.

Keep ReadingShow less
An ICE agent monitors hundreds of asylum seekers being processed upon entering the Jacob K. Javits Federal Building on June 6, 2023 in New York City. New York City has provided sanctuary to over 46,000 asylum seekers since 2013, when the city passed a law prohibiting city agencies from cooperating with federal immigration enforcement agencies unless there is a warrant for the person's arrest.(Photo by David Dee Delgado/Getty Images)
An ICE agent monitors hundreds of asylum seekers being processed.
(Photo by David Dee Delgado/Getty Images)

The Power of the Purse and Executive Discretion: ICE Expansion Under the Trump Administration

This nonpartisan policy brief, written by an ACE fellow, is republished by The Fulcrum as part of our partnership with the Alliance for Civic Engagement and our NextGen initiative — elevating student voices, strengthening civic education, and helping readers better understand democracy and public policy.

Key Takeaways

  • Core Constitutional Debate: Expanded ICE enforcement under the Trump Administration raises a core constitutional question: Does Article II executive power override Article I’s congressional power of the purse?
  • Executive Justification: The primary constitutional justification for expanded ICE enforcement is The Unitary Executive Theory.
  • Separation of Powers: Critics argue that the Unitary Executive Theory undermines Congress’s power of the purse.
  • Moral Conflict: Expanded ICE enforcement has sparked a moral debate, as concerns over due process and civil liberties clash with claims of increased public safety and national security.

Where is ICE Funding Coming From?

Since the beginning of the current Trump Administration, immigration enforcement has undergone transformative change and become one of the most contested issues in the federal government. On his first day in office, President Trump issued Executive Order 14159, which directs executive agencies to implement stricter immigration enforcement practices. In order to implement these practices, Congress passed and President Trump signed into law the One Big Beautiful Bill Act (OBBBA), a budget reconciliation package that paired state and local tax cuts with immigration funding. This allocated $170.7 billion in immigration-related funding for the Department of Homeland Security (DHS) to spend by 2029.

Keep ReadingShow less
Towards a Reformed Capitalism
oval brown wooden conference table and chairs inside conference room

Towards a Reformed Capitalism

Despite all the laws and regulations that apply to corporations, which for the most part are designed to make corporations more responsive to the greater good, corporations have wreaked great harm on our environment, their workers, their customers, and the general public. Despite all the rules, capitalism can still pretty much do what it wants.

The problem is not that the laws and regulations are not enforced, although that is partly true. The problem is more that the laws and regulations are weak because of the strong influence corporations have on both Congress (this is true of Democrats as well as Republicans) and those responsible for regulating.

Keep ReadingShow less