Legislative Loopholes

The Constitution was built with a set of checks and balances to prevent tyranny of the majority. It gives expressed powers to the President and to the Congress to ensure that no one person has too much power over that majority. However, through the interpretation of implied, inherent, and delegated powers in the constitution, the President has gained too much power with too few checks to balance it out.

As the need for governmental agencies has grown, Congress has delegated powers to Agencies to implement congressional legislation on their behalf, but often Congress sets a broad objective and gives discretionary power to the administration of such agencies to determine how that goal is met. By creating these agencies, Congress forfeits its legislative power to the Executive Branch.

The implied power in the “vesting clause” has been interpreted to basically give the President the power over everything except explicitly limited by congress (Ginsberg et al., 2019). However, even Expressed Powers to Congress has been taken over by the Executive Branch through a different interpretation of the Constitution. For instance, the president does not have the power to have federal troops sent to a state unless the state requests it, but  if he considers it to be necessary during an emergency, to enforce judicial order, or to protect civil rights, then he can do it without state approval. The President has limited power to make treaties because they must be approved by the Senate first, but the President can use sole-executive-orders, which are exactly like treaties simply without the approval from senate. Only Congress can declare war, but through inherent powers, the President can declare war without the consent of Congress.

It is interesting how executive branch is the only one who seems to benefit from the implied and inherent powers, too. The Executive Privilege claims that confidential communications between a president and close advisers cannot be revealed without presidential consent. However, the expressed power of Congress in the Constitution gives Congress the authority to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers” (Ginsberg et al., 2019). Implied powers of Congress include legislative hearings, investigations, studies, and reports, and if Congress does not have the ability to have information regarding the activities of the executive branch agencies and officials, then it cannot fulfill these constitutional responsibilities.

Ultimately, it does not matter whether powers are taken away from the President; the executive branch has found loopholes to defend every action thus far, taking powers away would only lead to more loopholes.

Ginsberg, B., Lowi, T. J., Weir, M., Tolbert, C. J., & Campbell, A. L. (2019). American Political Culture. In We the people: An introduction to American politics. New York, NY: W.W. Norton & Company.