The executive branch must respect the limits of the presidency and recognize that it must act as one of three co-equal branches of government.
- The Problem
- Recommendations for Action on Day One
- Recommendations for Short-term Action (First 100 Days)
- Recommendations for Legislative Action
Over the last several decades, Congress has ceded authority to the president in areas of critical importance, and the executive branch has seized the increased authority to abuse its power, often in secret, and unchecked by oversight. As a result, unconfirmed acting officials are running executive branch agencies; the U.S. military is engaged in conflicts without Congress having exercised its sole authority to declare war; and taxpayer funds are spent not as mandated by Congress through the appropriations process, but at the will of an executive branch abusing the power of the National Emergencies Act.
Recommendations for Action on Day One
- Reopen the Executive to scrutiny from Congress and the People.
The president will take office or begin a new term after four years of unprecedented secrecy and assertions of extreme executive powers vis-a-vis Congress and the People. He will have an historic opportunity to reopen the government to appropriate scrutiny from co-equal branches and the public and to reset the balance of power to what the Framers intended. He can do that by taking these steps on Day One:
- Announce his intent to follow the law and respect Congress’s oversight authority; Initiate a review of congressional information requests1 to the administration over the past four years and determine what documents previously withheld should be shared with Congress and which of those documents should be shared simultaneously with the American people through an easily accessible web portal;
- Direct the Office of Legal Counsel to develop a new publication procedure for its unclassified opinions such that draft opinions are subject to public comment and review.
Recommendations for Short-term Action (First 100 Days)
- Initiate a review of all Office of Legal Counsel opinions regarding the power of the presidency and institute a transparent and timely process for withdrawal or revision where warranted, in addition to opinion publication.
The president should commission an independent review of significant Office of Legal Counsel opinions on presidential power. Recommendations should be made public and should guide Office of Legal Counsel revisions, rescissions, or reaffirmations.
- Pledge nonpolitical inspectors general appointments and firings only for good cause.
Beyond adhering to existing statutory requirements, the president should prioritize nominating qualified individuals to fill vacant inspector general positions, including pledging to not nominate as an inspector general anyone who has held a political position in his White House or Cabinet. The president should commit to removing an inspector general only for cause, and shall not do so until he communicates to Congress the detailed and specific reasons why the inspector general is no longer able to fulfill their important mission.
- Commit to following statutory lines of succession for vacancies of advice-and-consent positions.
Where both an agency-specific statute and the Vacancies Act may be available to fill a vacancy temporarily, the president should commit to defaulting to the agency-specific statutory line of succession.
- Revise personnel composition of the Office of Legal Counsel at the Department of Justice.
The president should commit to working with the attorney general to ensure that the Office of Legal Counsel is staffed by career civil servants with only the role of assistant attorney general at its helm as a presidential appointee; and pledge to diversify the background of Office of Legal Counsel hires, including those with congressional and advocacy professional expertise.
The president should direct a review of all national emergency declarations still in effect, including declarations dating to the Carter Administration. Emergency declarations that no longer meet the statutory requirements upon which they were based, that have a history of abuse as a mechanism for pursuing non-emergency policy goals, or that do not practically rise to the level of an exigent national emergency should be rescinded.
- Disclose Presidential Emergency Action Documents to the Gang of Eight.
Consistent with post-Watergate reforms that require the executive branch to disclose covert military and intelligence planning and operations to at least some members of Congress, Presidential Emergency Action Documents should be confidentially shared with the Gang of Eight to facilitate basic and essential congressional oversight. The administration should also work with Congress to develop protocol for the timely disclosure of future Presidential Emergency Action Documents.
- Initiate a review of all relevant Office of Management and Budget guidance regarding budget and appropriations law.
The president should prioritize a comprehensive review of all relevant Office of Management and Budget guidance from the prior administration or term that provides instructions regarding federal agency (including White House) prerogatives in budget and appropriations law in order to revise, rescind, or reaffirm them.
- Instruct federal agencies to report Anti-Deficiency Act violations identified by the Government Accountability Office.
Federal agencies are required by law to report Anti-Deficiency Act violations to the comptroller general, the president, and Congress, including violations identified by the Government Accountability Office with which an agency disagrees. Despite this, the Office of Management and Budget has issued guidance that agencies need not report violations if an agency and the Office of Management and Budget disagree with the Government Accountability Office’s determination. This guidance should be immediately rescinded and proper reporting requirements reinstated.
- Instruct the Office of Management and Budget to make apportionments of appropriations transparent.
The Office of Management and Budget should regularly collate, centralize, and make accessible apportionment decisions. A system for easily accessing apportionment decisions should be built by the Office of Management and Budget that allows for publication of data in a timely manner and that is accessible to the public.
Recommendations for Legislative Action
1. Amend the Federal Vacancies Reform Act. The president should support an amended Federal Vacancies Reform Act that would: (1) clarify that the Act does not supersede agency-specific succession statutes; (2) extend all protections intended to guard inspectors general independence to acting inspectors general; (3) require that “first assistants” be in place prior to a vacancy, and that any individual who becomes an acting officer by way of 5 USC 3345(a)(1) has been serving in the role of the first assistant for at least 90 days in the year prior to the vacancy; and (4) establish new enforcement mechanisms available to Congress should the executive bypass Senate consent to fill key federal offices.
- Protect the integrity of inspectors general.
The president should support codifying stronger standards that protect the independence and integrity of the federal government’s inspectors general. Foremost, this should include support for legislation that gives inspectors general protections against removal without good cause. Congress should also protect the identities of all whistleblowers that come to inspectors general and the ongoing investigations in an office by prohibiting the president from appointing acting inspectors general who would simultaneously hold other political positions within the executive branch. (See also Chapter 4, “Whistleblowers”)
- Amend the National Emergencies Act.
The president should voice his support for a reinvigorated role for Congress in addressing national emergencies by endorsing legislation that would require that Congress must agree with the president in order to renew an emergency declared by the president and thus maintain presidential access to the statutory emergency powers unlocked by the declaration. An amended National Emergencies Act should include an initial sunset period of 30 days after an emergency declaration, subject to regular renewal votes. Further, should Congress decline to renew a national emergency, the president must be prohibited from unilaterally circumventing that outcome by declaring another emergency concerning the same circumstances.
- Amend the War Powers Resolution of 1973.
Drawing on his unique understanding of the essential role for Congress in foreign policy and matters of war and peace, the president should support legislation that would strengthen requirements that the Executive branch report to Congress all uses of force or engagement in hostilities, regardless of the underlying legal authorities for the activity; clarify the definition of “hostilities”; make public reports on the uses of military force; provide for automatic funding cut-offs for military operations that do not comply with the provisions of an amended War Powers Resolution; and authorize fines and other penalties for failures to report to Congress.
- Establish new Authorizations for Use of Military Force requirements.
The president should press for updated Authorizations for Use of Military Force requirements that would specify, at minimum, that: (1) the 2001 Authorization for use of Military Force sunsets automatically within one year of enactment; (2) subsequent Authorizations for Use of Military Force specify the individual groups or nations against which Congress is authorizing the use of force, as well as the specific countries where such force may be used; and (3) each future Authorization for Use of Military Force automatically expires after two years, at which time Congress may vote to extend it.
- Modernize nuclear command and control protocols.
The president should recognize that no one person should have authority to or bear responsibility for launching nuclear weapons and thus all-but-ensuring casualties of unfathomable proportions among civilian populations abroad and even at home. He should support legislation that would establish that (1) the president may not use United States armed forces to conduct a first-use nuclear strike unless such a strike is conducted pursuant to a declaration of war by Congress that expressly authorizes it; and (2) that the president does not enjoy unilateral authority to launch a nuclear weapon, but instead must obtain the concurrence of at least two named senior officers, such as the Secretaries of State and Defense.
- Prevent unconstitutional encroachments on Congress’s power of the purse.
The president should endorse new legislation that would (1) close historically abused Impoundment Control Act and National Emergencies Act loopholes; (2) establish new transparency mechanisms, such as requiring the Office of Management and Budget to make apportionments and any legal opinions on budget laws regularly and publicly available; (3) update executive reporting requirements on Impoundment Control Act and Anti-Deficiency Act violations; and (4) establish new enforcement mechanisms, such as clarifying Government Accountability Office authorities to obtain information and sue agencies in violation of the law and authorizing administrative discipline for offending officials, and requiring the Department of Justice to investigate reports of criminal violations.
1 In conducting the review, the administration should prioritize those information requests related to (1) ethical violations by government officials, (2) lawbreaking by government officials, (3) family separation and the treatment of refugees, and (4) receipt or solicitation of assistance from foreign governments in federal election campaigns.