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The President Has Usurped the Constitutional Power of Congress

The BriefGet Up To Speed

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?


President Obama campaigned as a champion of transparency, yet he increasingly rules as an unaccountable monarch.

Thursday, January 1, 1970
Robert Pittenger, United States Congressman

Congress shares in the blame for acquiescing to decades of presidential power grabs.

Friday, November 21, 2014
Josh Blackman
Obama is using executive orders and other unilateral exercises of executive power to advance his agenda rather than wait on Republicans in Congress.
Wednesday, March 19, 2014
Brianne Gorod
The real problem with Obama is not overreach but his tendency to be hands-off.
Tuesday, October 28, 2014
Dana Milbank

An overview of the executive branch’s powers.

Thursday, January 1, 1970
A description of the legislative branch and the powers of Congress.
Thursday, January 1, 1970
Primarily, the Take Care Clause has been interpreted as placing an obligation on both the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress. However, the Supreme Court has also construed the Clause as ensuring Presidential control over the enforcement of federal law.
Thursday, September 4, 2014
Todd Garvey
This report first reviews the “definition” of an executive order and how it is distinguishable from other written instruments, and then provides an overview of the President’s constitutional authority to issue such directives.
Wednesday, April 16, 2014
Vivian Chu and Todd Garvey
President Barack Obama and his Republican opponents are engaged in yet another fight over his use of executive orders, but the use of this powerful presidential tool is hardly new.
Monday, November 17, 2014
NCC Staff
A table listing the total number of Executive Orders issued by presidential term.
Thursday, January 1, 1970
John Woolley and Gerhard Peters
The judiciary will have repeated opportunities to create a consistent framework for judicial review of Presidential actions that will insure control of inherent executive power, while allowing the President to flexibility necessary to carry out his job.
Friday, July 22, 1983
Erwin Chemerinsky

The president’s powers of unilateral action are a force in American politics precisely because they are not specified in the Constitution. They derive their strength and resilience from the ambiguity of the contract.

Thursday, July 22, 1999
Terry Moe and William Howell
The power of the Presidency has been expanding since the Founding, and that we need to consider the implications of this expansion within the constitutional structure of separation of powers, no matter which party controls the White House.
Friday, July 22, 2016
William Marshall
The “unitary executive” theory of presidential powers.
Thursday, January 5, 2006
Jess Bravin
House Executive Overreach Task Force Hearings
Presidents going beyond their constitutional authority is nothing new, and it’s imperative that Congress fix this to restore our system of government.
Monday, February 1, 2016
Bob Goodlatte, Chairman of the House Judiciary Committee
Statements from Eugene Kontorovich, Stephen Vladeck, and Steven Groves.
Thursday, May 12, 2016
Executive Overreach Task Force, House of Representatives Judiciary Committee
Statements from Elizabeth Papez, Josh Blackman, Simon Lazarus, and Elizabeth Slattery.
Tuesday, March 15, 2016
Executive Overreach Task Force, House of Representatives Judiciary Committee
Statements from Cleta Mitchell, David Bertstein, Emily Hammond, and Andrew Grossman.
Tuesday, April 19, 2016
Executive Overreach Task Force, House of Representatives Judiciary Committee
Statements from Matthew Spalding, James Capretta, Joseph Postell, and Stephen Vladeck.
Tuesday, March 1, 2016
Executive Overreach Task Force, House of Representatives Judiciary Committee
The eight justices on Monday will hear from 26 states and the House of Representatives challenging the administration's moves that could affect some 4.3 million undocumented immigrants.
Monday, April 18, 2016
Ariane de Vogue
The Department of Homeland Security’s proposed deferred action program for parents of U.S. citizens and legal permanent residents would also be a permissible exercise of DHS’s discretion to enforce the immigration laws. - Memorandum Opinion for the Secretary of Homeland Security and the Counsel to the President
Wednesday, November 19, 2014
Karl R. Thompson
Federal judge Andrew Hanen’s opinion issuing a preliminary injunction against the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.
Monday, February 16, 2015
Andrew Hanen, Memorandum Opinion and Order
The Executive does not have the power to authorize—let alone facilitate—the prospective violation of the immigration laws on a massive class-wide scale.
Monday, April 4, 2016
Supreme Court of the United States
Obama’s legal authority is clear, as it was for Reagan, Clinton and both Bushes.
Sunday, November 23, 2014
Stephen Legomsky
The Obama policy is constitutional, and appellate courts would do well to uphold it.
Thursday, May 21, 2015
Ilya Somin
In a setback for the Obama health care law, a federal judge ruled Thursday that the administration is unconstitutionally subsidizing medical bills for millions of people while ignoring congressional power over government spending.
Thursday, May 12, 2016
Associated Press
A U.S. judge said on Wednesday congressional Republicans could move forward with parts of a lawsuit that alleges executive overreach by President Barack Obama's administration in implementing his signature healthcare law.
Wednesday, September 9, 2015
Lindsay Dunsmuir
The GOP says Obama’s decision to postpone implementing the “employer mandate” stomps all over the Constitution. It doesn’t, and here’s why.
Wednesday, July 17, 2013
Simon Lazarus
War Powers
President Obama hoped to repeal the Bush-era authorization declaring war on al Qaeda—instead he's expanded it without bound.
Thursday, September 11, 2014
Jack Goldsmith
Congress should make it impossible for future presidents to evade its final decision.
Wednesday, February 11, 2015
Bruce Ackerman
What we’re seeing right now is Congress letting power slip right through its fingers and become more concentrated in the hands of the President.
Monday, September 29, 2014
Chris Edelson
Surveillance and military operations work on different time scales, a fact which is fatal to ignore.
Monday, September 29, 2014
Richard Epstein
Arguments in support of the idea that the president’s commander-in-chief and executive powers, granted in Article II of the Constitution, give him the authority to use force abroad.
Thursday, August 29, 2013
John Yoo
At least three sources firmly establish the President’s authority to proceed against ISIL.
Friday, September 26, 2014
Neil Kinkopf
The authority for the president to act without specific congressional authorization is set out in two opinions of the Office of Legal Counsel.
Tuesday, March 22, 2011
Walter Dellinger
The fight over whether Congress should be able to block any nuclear agreement with Iran was one more chapter in a fundamental struggle between the executive and legislative branches since the beginning of the republic.
Wednesday, April 15, 2015
Peter Baker
If it looks like a treaty, walks like a treaty and talks like a treaty, is it a treaty?
Thursday, March 12, 2015
Stephen Collinson
Recess Appointments
The Supreme Court issued a unanimous rebuke to President Obama on Thursday, saying he had overreached in issuing recess appointments during brief breaks in the Senate’s work.
Thursday, June 26, 2014
Adam Liptak
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Thursday, January 1, 1970
Michael Carrier
Climate Change
A divided Supreme Court agreed Tuesday to halt enforcement of President Barack Obama's sweeping plan to address climate change until after legal challenges are resolved.
Tuesday, February 9, 2016
Associated Press and IBJ Staff