I have the pleasure today of speaking at the keynote before the CATO conference in Naples Florida being held a the Ritz-Carlton. Apropos of the current debate over the Trump executive order on refugees, the speech will address the scope of, and limits on, executive power. The speech will start at 11 a.m.
The Legislative Branch has lost the most with the rise of a type of über-presidency. We are seeing the emergence of a different model of government in our country – a model long ago rejected by the Framers. The rise of a dominant presidency has occurred with relatively little congressional opposition. Indeed, when President Obama pledged to circumvent Congress, he received rapturous applause from the very body that he was promising to make practically irrelevant.
The courts have played the most significant role in the transcendent rise of the American presidency by barring lawsuits and avoiding rulings in separation disputes. Indeed, I believe much of the dysfunctional politics criticized today is the result of the failure of courts to perform their most critical function in minding the lines of separation. The void left by the courts has left the two parties with raw muscle tactics. As prior presidents have slowly bled away legislative authority, the courts have stubbornly insisted that the executive and legislative branches would have to work things out. It is akin to a group of the best doctors in the world standing around and screaming at an anemic patient to “heal yourself.” In the meantime, much of the actual governance during this period has shifted away from political representatives and toward executive branch officials. We have seen the rise of a type of “fourth branch” of federal agencies with increasing power and independence over the governance in this country. If this body is to remain truly relevant into the next century, it will have to fight for the constitutional territory lost over years of erosion.