The United States, rather than maintaining its status as a republic, has been backsliding toward becoming a monarchy, according to a 2020 report by then-Cato Institute constitutional researcher Trevor Burrus. The continuing trend of broad expansion of presidential powers, Burrus notes, is eroding the powers of the legislative branch. Two examples are the Obama administration’s 2016 “Dear Colleague” letter, that had the effect of changing the definition of gender, and President Donald Trump’s 2018 imposition of steel tariffs in the name of national security, a decision that was upheld in court.
Historically, these types of issues would have been debated vigorously in Congress, followed by legislation by the House and Senate. Constitutionally, vital decisions of government were not to be decided by the stroke of a presidential pen, with no congressional action from the duly elected representatives of the people.
This trend of expanding presidential authorities has continued under President Joe Biden. Recently, Biden tried to implement a massive student loan forgiveness program, but Congress refreshingly reasserted its authority: The House passed a resolution to block Biden’s student loan cancellation effort.
A few weeks later, on June 30, the U.S. Supreme Court agreed that Biden’s proposed student loan forgiveness program was indeed an overreach of presidential authority. In a 6-3 ruling, the court determined that under the law, the president did not have the ability to cancel up to $430 billion in student loans. The decision upheld the constitutionally mandated separation of powers. It also determined that congressional legislation previously passed into law, and which the president had unilaterally determined granted him the authority, did not in fact give the Executive Branch the sweeping authority it had attempted to seize with its loan forgiveness program. Significantly, the Supreme Court decision maintained the checks and balances of power between the congressional and executive branches of government.
By addressing the not-yet-dead Iran nuclear deal, Congress can reclaim some of its constitutionally mandated powers by insisting that the initial steps taken regarding any Iran deal be reviewed by Congress, then followed up with strong action, as powerfully initiated by House Foreign Affairs Committee chairman Michael McCaul.
Letters of warning to the Executive Branch are just one instrument Congress has in its toolbox to control the excesses of the Executive Branch, especially when these letters are backed by Congress’s “power of the purse.” This means that all federal spending must originate in the House, and that no federal dollars can be spent until legislation is passed by both bodies of Congress and signed into law by the president.
Regrettably, Congress has allowed its authority to be eroded by the Executive Branch for decades, and has insufficiently guarded its power under both Republican and Democratic administrations.
These examples of controlling or influencing presidential authority—going to the courts and the power of the purse—could play out in a significant way in the coming months.
Biden is reportedly close to finalizing “agreements” with Iran on a prisoner swap in exchange for $6 billion in frozen Iranian oil funds and on its nuclear program, allowing it to legitimately possess as many nuclear weapons as it likes.
Congress should be particularly concerned that the administration might use extraordinary means to bypass it and implement a nuclear agreement without congressional review as is required by federal statute in the Iran Nuclear Agreement Review Act of 2015.
This legislation passed the House with 400 “yes” votes to 25 “no” votes, and passed the Senate with a vote of 98-1, a remarkably strong bipartisan response indicating deep support by Congress for exercising its rightful role in treaties and international agreements.
While it is unclear at this time whether there will be a new agreement between the United States and Iran in the near term, it is abundantly clear that Congress wants—and needs—to play a role in any future agreement. Given the uncertainty regarding whether Biden will follow the review steps outlined in and required by the Iran Nuclear Agreement Review Act, now is the time for Congress to assert itself fully and forcefully into this process.
Congress should indicate, clearly and immediately, that any perceived violation of the Act will be met by the strongest means possible under the Constitution: full use of the courts and the power of the purse to defend its position.
A potential Iran deal that Congress has clearly signaled it wants to reject is a perfect opportunity for Congress to reassert some of the authority it has tossed away or lost.
To make sure its voice is heard, Congress needs urgently to begin preparing for the fight that might materialize between the executive and legislative branches.
Congress must stop major national security decisions from being unilaterally imposed by an imperial president.
Originally published by the Gatestone Institute.