Presidents and Congress: Principal-Agent Disputes

One ongoing source of conflict between the president and Congress derives from what might be called their principal-agent relationship. When Congress enacts a law the executive is required to execute it. One might say that the president is serving as an agent for the Congress. Conflicts almost inevitably arise any relationship of this sort. Whether the agent is a president or a plumbing contractor, the principal is likely to find instances in which the agent did not follow the precise terms of the contract or, perhaps, failed altogether to fulfill the contract.

Unlike most plumbing contractors, presidents are agents with their own agendas and their own ideas about the public interest. Presidents may decide to reject a congressional initiative, to nominally agree but not to do exactly what Congress mandated or, perhaps, to accept Congress’s mandate but take no action at all if they believe that Congress wants to take the nation in the wrong direction. As to outright rejection of a legislative initiative, the Constitution gives the president a conditional veto power–conditional because Congress may override the president’s veto. America’s early presidents seldom vetoed laws believing that the veto could only properly be used to protect the institution of the presidency from legislative encroachments.

Today, the veto or threat of a presidential veto is fairly common–FDR vetoed 635 bills–but during the Bush and Obama administrations because of partisan gridlock, so few bills were passed that presidential veto pens grew rusty. In 2013, Congress passed only 57 bills, the fewest in its history. None were vetoed by the president. The media noted in 2014 that there was so little legislative activity that even the number of demonstrations and protests on Capitol Hill had dropped sharply. There seemed to be little point to demonstrating when so little legislative activity was taking place.

The presidential veto is not as powerful a weapon as the veto power possessed by many state governors. Governors usually have “line-item vetoes,” that is they may veto portions of bills without having to veto the entire bill. The president possesses no such ability. Presidents must accept or reject bills in their entirety which gives Congress a chance to include measures the president opposes with measures the president would be hard-pressed to veto, such as defense appropriations bills. In 1996, Congress enacted legislation giving the president a line item veto power which President Clinton used a number of times. In 1998, however, the Supreme Court found that the line item veto was not consistent with the Constitution’s Presentment Clause because it improperly gave the president the power to amend legislation. Recent presidents, as we shall see, have sought to use signing statements for just this purpose.

The veto is a presidential power expressed by the Constitution. Two other ways in which presidents and the executive branch, more generally, can thwart Congress are not. The first of these is through the execution of a law in a manner inconsistent with congressional intent. This practice is associated with the agencies of the executive branch as well as directly with the president. A recent case that has caused a great deal of controversy involves a 2014 decision by the IRS to effectively rewrite a portion of the Affordable Care Act. The Act states that individuals who purchase health insurance through state exchanges are eligible for tax credits. These credits were intended to encourage individuals to purchase insurance through this mechanism and to encourage the states to establish such exchanges. By 2014, however, thirty-six states had declined to establish exchanges. In consultation with other agencies and the White House, the IRS decided to reinterpret the law to allow individuals who had not purchased their insurance in this manner to also receive tax credits. This seemingly minor change involved hundreds of millions in potential benefits and costs to businesses, individuals and the national treasury and pointed to problems in the underlying statute. Initially, federal courts split on the question of whether the IRS acted properly or not, but in June, 2015, the U.S. Supreme Court upheld the agency’s actions in the case of King v. Burwell.

When presidents, themselves, plan to execute the law in a manner inconsistent with statutory language, they often make their intent clear so that federal agencies will know what is expected of them by the chief executive. Signing statements are one vehicle presidents have used for this purpose. Thus, for example, when President George H.W. Bush signed a bill that included a provision requiring contractors on a particular federal project to pursue affirmative action in their hiring practices, his signing statement directed the Secretary of Energy to ignore the requirement.2 Similarly, when President George W. Bush signed legislation creating an inspector general to oversee U.S. operations in Iraq he issued a signing statement asserting that this official should refrain from audits and investigations into matters involving intelligence and counterintelligence. The legislation contained no such provision. As a presidential candidate in 2008, Barack Obama deplored this type of signing statement. As president, however, Obama followed the trail blazed by his predecessors, issuing some 30 signing statements indicating his intention to disregard potions of laws enacted by Congress and signed by the president.

For example, according to one provision of the 2014 Defense Authorization Act, the president is obligated to give Congress 30 days notice before releasing any prisoners from the Guantanamo military prison. When President Obama signed the law, he indicated that he would not be bound by this provision and later released five Taliban prisoners in exchange for an American soldier, Bowe Bergdahl, then held by the Taliban.It hardly seems necessary to point out that when presidents plan to directly violate a prohibition or a criminal statute they usually seek to avoid public disclosure of that fact. Thus, only through a determined congressional investigation was it learned that the Reagan White House had decided to directly violate a statutory prohibition, known as the Boland Amendment, forbidding further government funding of the Nicaraguan Contras whom the president had strongly supported.

Another way in which presidents can use their executive powers to thwart Congress is by failing or refusing to execute the law. President Nixon, for example, several times refused to spend or “impounded,” funds appropriated by Congress. This practice was later severely restricted by the 1974 Budget and Impoundment Control Act. Presidential refusals to execute laws is not altogether uncommon and tends to be associated with presidential efforts to win favor with important constituency groups. President Clinton, for example, declared that a section of a defense appropriations bill requiring the discharge of military personnel found to be HIV positive, was unconstitutional and would not be enforced. President Obama, long before the Supreme Court struck down many of its provisions, found reason not to enforce major portions of the Defense of Marriage Act which bars the government from recognizing same-sex marriage.

The Obama administration also refused to enforce the Unlawful Internet Gambling Enforcement Act aimed at blocking Internet gambling and granted waivers to ten states freeing them from provisions of the No Child Left Behind Act. The statute, as enacted by Congress, makes no provision for such waivers. The administration also announced that it would refuse to deport undocumented immigrants who came to the U.S. as children. Congress had considered and refused to enact legislation that would have adopted this policy. According to a White House official, “Often times Congress has blocked efforts and we look to pursue other appropriate means of achieving our policy goals…the president isn’t going to be stonewalled by politics, he will pursue whatever means are available to do business on behalf of the American people.”

As presidents become more willing and able to engage in unilateral action, the question of who will occupy the White House looms ever larger.