Rule of Law

The Framers Wanted a Strong President

Alexander Hamilton wrote, “all men of sense will agree in the necessity of an energetic Executive.” That statement tells us what Hamilton would have thought of House Republicans, who last week passed the Enforce the Law Act, legislation directed at President Obama for, in the words of the House Report on the bill, “stretch[ing] his powers beyond their constitutional limits.”


House Republicans are wrong on two counts.  First, President Obama has hardly been failing to “[e]nforce the [l]aw.” For example, in the immigration context, the administration has been deporting people at record levels, prompting some Latino leaders to call Obama the “deporter-in-chief.”  Second, Obama does not need to “stretch[] his powers beyond their constitutional limits” to make good on his State of the Union promise to make 2014 a “year of action.” After all, our Founding Fathers wanted a strong leader for the nation.


Indeed, although House Republicans claim the Framers had a “deep-seated fear of the abuse of executive power,” what they also feared was a president who was so weak that he could not enforce the nation’s laws.


Before there was the Constitution, there was the Articles of Confederation. The Articles of Confederation lasted less than a decade, in large part because the government it established lacked an executive branch. When the Framers convened in Philadelphia to draft a new national charter, they sought to remedy this deficiency by creating a strong executive branch headed by a single person. The new Constitution gave the president a number of powers and duties, among them the obligation to “take Care that the Laws be faithfully executed.” Because the Framers understood that the execution of the law — unlike its enactment — would be an ongoing process, they required the president to always be in service, unlike the Congress which needed to meet only once every year.


One respect in which the president “faithfully execute[s]” the laws is by deciding what the laws mean and how they can best be enforced. When Congress enacts a law, there will often be ambiguities and gaps, and courts will generally defer to the executive branch’s understanding of how to resolve those ambiguities and fill those gaps. Moreover, because it would be impossible for every violation of the law to be prosecuted, the executive branch must exercise judgment in determining how to “faithfully execute” the law. As then-Justice William Rehnquist wrote for the Supreme Court nearly thirty years ago, an “agency’s decision not to prosecute or enforce [a law] . . . is a decision generally committed to an agency’s absolute discretion.” Of course, there are limits to that discretion, but House Republicans are wrong to suggest that the president is engaging in “executive overreach” by deciding, for example, how best to enforce the nation’s drug and immigration laws.


The Framers might not have been able to foresee the precise problems that confront the country today. But they foresaw that the president might sometimes need to take unilateral action to address them. House Republicans act as if every use of Obama’s executive power is an abuse of that power. It is not. We can only hope that sense will once again prevail in Washington, and House Republicans will not be allowed to deprive the country of the “energetic Executive” the Framers wanted.