[This is a guest blog from a friend and colleague, Abner S. Greene, who is the Leonard F. Manning Professor at Fordham Law School and has been following the constitutional separation-of-powers issues at the heart of many of the current cases involving the scope of President Trump's powers for many years.]
Donald Trump's aggressive use of executive power in his second term threatens to upset the balance of power between President and Congress, and although courts have pushed back against Trump's excesses,[i] up-front hurdles and back-end limits render courts an imperfect check. In this essay I will describe an argument I made 30 years ago about the problem of expanded presidential power, explain the hurdles facing my suggestions for a better balance of executive-legislative power, discuss the limits of congressional power to check an unhinged President, and outline some difficulties with relying on courts to save the day.
In 1994, I published a law review article called "Checks and Balances in an Era of Presidential Lawmaking."[ii] I examined the records of the 1787 constitutional convention and looked closely at the Federalist Papers. From these materials, I concluded that "the framers were overwhelmingly concerned with either political branch aggrandizing its own power without sufficient checks. To the extent that there is any 'original understanding' of the division of power between the President and Congress, it is that both are to be feared, neither is to be trusted, and if either one grows too strong we might be in trouble."[iii]
