“This Unchains the President”: Sen. Merkley Calls for Biden To Circumvent the Congress

When Madison described the essence of his constitutional vision of the separation of powers in Federalist 51, he declared “Ambition must be made to counteract ambition.” Madison believed that the three branches would preserve the balance of the Constitution by using the institutional interests of each branch to jealously protect their inherent powers. He clearly did not envision many of our current leaders in Congress who often call for presidents to circumvent their own institution when they are unable to prevail with legislation. The latest example is Sen. Jeff Merkley (D, Ore.).

In a Washington Post article, Sen. Merkley stated

  “This is an important moment. There is probably nothing more important for our nation and our world than for the United States to drive a bold, energetic transition in its energy economy from fossil fuels to renewable energy. This also unchains the president from waiting for Congress to act.”

The “chains” that Sen. Merkley is referencing are the powers set aside in Article I for Congress to make such decisions through the legislative process. Like so much else today, the suggestion is that one can support the Constitution so long as it yields to your demands. We have heard the same argument with those demanding packing or changing the Supreme Court.

Many Americans misunderstand the separation of powers as simply a division of authority between three branches of government. In fact, it was intended as a protection not of institutional but of individual rights, by preventing any branch from assuming enough power to become tyrannical. No branch is supposed to have enough power to govern alone. Once power becomes concentrated in the hands of a president, citizens are left only with the assurance that such unchecked power will be used wisely – a Faustian bargain the framers repeatedly warned us never to accept.

The Madisonian vision has long been on the decline in Congress. One of the lowest points was the State of the Union address by former President Barack Obama when he announced that he intended to go it alone in achieving his policy goals, refusing to yield to the actions of Congress. One would have expected an outcry, or at least stony silence, from a branch that was being told it would be circumvented. Instead, there was rapturous applause that bordered on a collective expression of institutional self-loathing.

Before members like Sen. Merkley “unchain” a president, they should consider the costs of such constitutional convenience. They should also consider that this president has racked up an impressive array of losses over exceeding his constitutional authority, including the recent loss on climate change before the Supreme Court.  In the wake of that stinging defeat, Sen. Merkley is calling for more of the same — unchaining the President from the limits of both the legislative and judicial branches.