The system of checks and balances is one of the genius aspects of the Constitution of the United States. Each of the three branches are, or at least ought to be, supreme in their respective sphere with the Constitutional leadership commanding it’s own branch, but none commanding the whole government.
Between them, Congress via Article I of the Constitution ought to be considered the first among equals, but equal nonetheless. They are constrained by the Constitution via the Supreme Court, and in part by the President via the power of the veto. The Supreme Court is constrained by the Constitution and via statutes enacted by Congress and the discretion of the administrator in chief (i.e. the President).
The President is unitary executive that enacts the will of Congress, but is restrained by Congress and the Supreme Court alike. As Yuval Levin notes:
“A rough but useful rule of thumb would be that the president does command the executive branch but the executive branch does not command our government.”
As such, while all executive power is wielded ultimately by the President, that power is not unlimited. Indeed, ‘twould be an odd interpretation that the Constitution grants plenary power to the President subject to only enumerated or limited exceptions. This flies in the face of the very nature of the 10th Amendment as well as the worldview of the framers, who less than a decade prior were busy fighting for independence from a monarchy with less extensive powers than some would assert for the current President (though maybe not another President).
The President has only the power to direct what Congress has allowed to exist in the first place. Even in the areas where the President has the greatest leeway, i.e. foreign affairs and the military, the President is bound by the power of the Congressional purse, treaties, statutory authorization limitations, as well as the Senate’s power to refuse consent to appointments, as defined by legislation.
Indeed, this limitation of the President over the Federal government can be seen by recent Supreme Court cases including the overturning of the Chevron Doctrine. When it comes to major issues, Congress can not delegate it’s role in major legislative decision making nor can the President assume that power. To say otherwise would be to diminish Congress into just a rubber stamp for funding and a proposer of sweeping enabling acts, though certainly there are plenty of Senators and Representatives who would be more than happy to shirk that responsibility even more than they have already and relegate themselves to media commentators or at most a collective suggestion box.
This is why while the President can not be constrained by the Administrative State, and may dictate while not being dictated to, the President can be constrained by Congress and statutes, with the ultimate arbiter not being the President or the Administration in our new post-Chevron world.
What enabling or delegation Congress grants the President and the Administration is, or at least ought to be, subject to the terms and limitations Congress chooses to impose or allow. Again, to say otherwise is to grant the Executive Branch unlimited legislative powers subject only to narrow exceptions insisted upon by Congress. Congress can not delegate on major issues, but what delegation it can do is not limited to a manichean choice of all or nothing with any non-major issue delegation being mandated as unlimited within that non-major issue as if there were a Constitutional requirement via Article II that prohibits any leeway granted by Congress from having any qualification or requirement whatsoever.
Just as the President is the chief executive of the Executive Branch, the duty of the Executive Branch is limited to the President’s role as chief executive and not to the President individually. The duty is to the office and not the person of the President. This is something that those who pledge loyalty not to the Constitution or even the Presidency, but rather to the individual who is President at that time, should remind themselves of.
To wit: The proper role of the President is to administer and execute the laws with such limitations or requirements thereof. This applies regardless of who holds that office or by what purported mandate otherwise is claimed.
