Senator Bernie Sanders of Vermont is reportedly considering dozens of executive orders he could sign to go around Congress, and he’s already promised to implement major parts of his immigration plan unilaterally if it stalls on Capitol Hill. Before dropping out of the race late last year, Senator Kamala Harris of California vowed to enact her gun-control agenda herself if Congress didn’t act within 100 days of her inauguration. Even former Vice President Joe Biden, who has campaigned as a legislative consensus-builder and has been dismissive of his rivals’ plans to circumvent Congress, has proposed an aggressive use of executive orders.
This embrace of executive authority has disappointed, but not surprised, advocates who want to reverse a decades-long shift in power from a largely dysfunctional legislative branch to an ever more muscular executive.
“Executive-branch circumvention of Congress is what everyone expects by now,” says Philip Wallach, a senior fellow in governance at R Street, a libertarian think tank. It has been a decade since Congress last enacted a major new policy program, aside from a few big tax cuts and spending bills, he notes.
Read: The alarming scope of the president’s emergency powers
The past three presidents have tried to push the bounds of executive authority. In the years after 9/11, civil libertarians and some Democrats criticized the George W. Bush administration for its expansive interpretation of the president’s power to act in the name of national security. Republicans took President Barack Obama to court over his move to grant legal status to millions of undocumented immigrants after Congress refused to pass a comprehensive bill providing a path to citizenship. (The Obama administration rejected an even wilder idea of minting a trillion-dollar coin to obviate the need for Republican votes to raise the debt ceiling.)
Congress is at fault too. Over the years, lawmakers have written overly broad laws that have given executive agencies wide latitude to interpret and implement them as they see fit, argues Elizabeth Goitein, the director of the liberty-and-national-security program at the Brennan Center for Justice, a left-leaning think tank. Many disputes over such laws end up in the courts, leading to years of litigation, as has been the case with the Affordable Care Act, for example. “Congress has essentially abdicated the job of lawmaking and has left that to the president,” Goitein told me. “Presidents have also taken to stretching the bounds of those delegations and going beyond what Congress has authorized.”
Warren’s advisers told me she views Congress as a partner, noting her support for repealing the authorizations of military force that were passed in 2001 and 2003 and that presidents have used to justify military actions across the globe in the decades since. But Warren is also a candidate who conceived of and built from scratch an entire federal agency, the Consumer Financial Protection Bureau, that was designed to be insulated from congressional sabotage and oversight. For years, she has pushed the executive branch to be more aggressive about using its vast power to improve people’s lives. “She has really thought deeply about how you can use all the tools of government to actually deliver for people,” Bharat Ramamurti, the campaign’s deputy director for economic policy, told me.