Congress’ Systematic Undermining of Presidential Article II Authority

The Constitutional Foundation

The United States Constitution establishes a clear separation of powers. Article II, Section 1 states unambiguously: "The executive Power shall be vested in a President of the United States of America". This vesting clause places sole executive authority in the President. Article II, Section 3 further requires the President to "take Care that the Laws be faithfully executed." For nearly 250 years, however, Congress has encroached on this authority through legislation and the creation of "independent agencies" that limit presidential control over executive functions.

The Rise of "Independent Agencies"

Congress has established numerous independent agencies, such as the Federal Trade Commission, the Securities and Exchange Commission, and others, that exercise significant executive power while enjoying substantial insulation from presidential oversight. These agencies often operate with heads removable by the President only "for cause," such as inefficiency, neglect of duty, or malfeasance. This structure reduces direct accountability to the elected President and creates what scholars and jurists have described as a "headless fourth branch" of government. By delegating rulemaking, enforcement, and even adjudication powers to these entities, Congress has fragmented the executive authority the Constitution vests exclusively in the President.

Key Supreme Court Precedents

The Supreme Court has repeatedly addressed this tension between congressional design and constitutional text.

In Myers v. United States (272 U.S. 52, 1926), the Court affirmed that the President possesses broad removal authority over executive officers to fulfill his constitutional duty of faithful execution.

However, Humphrey's Executor v. United States (295 U.S. 602, 1935) introduced an exception, upholding "for cause" removal protections for certain "quasi-legislative" or "quasi-judicial" agencies. This ruling enabled the expansion of independent agencies shielded from full presidential control.

Later decisions have narrowed this exception. In Free Enterprise Fund v. Public Company Accounting Oversight Board (561 U.S. 477, 2010), the Court struck down a double-layer of for-cause removal protections, holding that such extreme insulation prevented the President from exercising necessary oversight and violated Article II.

Most significantly, Seila Law LLC v. Consumer Financial Protection Bureau (591 U.S. 197, 2020) invalidated for-cause removal protections for the CFPB's single director. The Court ruled that this structure unconstitutionally concentrated substantial executive power in an official unaccountable to the President, reaffirming that the President generally must be able to remove principal officers at will, with only narrow, historically grounded exceptions.

Additional Congressional Encroachment: The Impoundment Control Act

Congress has further undermined presidential authority through statutes like the Congressional Budget and Impoundment Control Act of 1974 (Pub. L. No. 93-344, Title X, 88 Stat. 297), commonly known as the Impoundment Control Act. Enacted in response to prior executive actions, this legislation severely restricts the President's ability to withhold or delay the expenditure of appropriated funds, even when such discretion might be necessary to faithfully execute the laws or manage fiscal priorities. The Act requires the President to report proposed rescissions or deferrals to Congress and mandates release of funds if Congress does not approve rescissions within 45 days of continuous session. It effectively prohibits unilateral impoundment for policy reasons, as confirmed in cases like Train v. City of New York (420 U.S. 35, 1975), where the Supreme Court held that statutes do not imply presidential discretion to allot less than authorized amounts absent clear congressional intent.

Such restrictions limit the President's constitutional discretion in executing appropriations, imposing congressional oversight on core executive functions and further diluting Article II authority.

The Hypocrisy of Congressional Criticism

When a President asserts full Article II authority and challenges these long-standing arrangements, certain members of Congress and aligned media outlets frequently accuse him of violating the law or the Constitution. This reaction is deeply disingenuous. The same institution that systematically diluted presidential authority through independent agencies and statutes like the Impoundment Control Act now condemns efforts to restore the original constitutional design. Congress created the very framework it now defends, yet it cries foul when a President seeks to reclaim the executive power the Framers vested solely in his office.

Restoring the Constitutional Design

The pattern is clear: Congress has undermined presidential authority by dispersing executive power across insulated bureaucracies and restrictive statutes. These arrangements frustrate the President's constitutional duty to faithfully execute the laws and reduce accountability to the electorate. Recent Supreme Court rulings signal a return to the text's plain meaning: the executive power belongs to the President alone.

When a President acts to correct this long-standing overreach, he is not breaking norms. He is upholding the Constitution. The time has arrived to realign the structure of government with the unambiguous command of Article II: "the executive power shall be vested in a President of the United States of America".

Michael J Badagliacco, "MJB"