Adam Schiff
Congressman Adam Schiff, Democrat from California, speaks during the news conference introducing the Protecting Our Democracy Act in the Capitol on Tuesday, Sept. 21, 2021. (Photo by Bill Clark/CQ Roll Call via AP Images)

Congress now has before it the most ambitious legislative proposals to curb presidential authority since the years immediately following the Watergate scandal and the Vietnam War. In the Senate, Chris Murphy, a Democrat from Connecticut, Mike Lee, a Republican from Utah, and Bernie Sanders, an Independent from Vermont, have introduced the National Security Powers Act of 2021, which would replace the 1973 War Powers Resolution with a more robust set of constraints on all unilateral deployments of military force by the president. It would, for example, shorten the president’s window for deploying force in advance of either an attack on the United States or specific congressional authorization from 30 days to 20 days. The act would apply not only to “boots on the ground” but also to force “deployed remotely.” It would cover supply and support operations of the kind the Obama administration argued were not involvement in “hostilities.” And it would attempt yet more strictly to prevent presidents from claiming that general appropriations measures constitute the requisite authority for the deployment of U.S. forces abroad.

In the House, Representative Adam Schiff and Democratic cosponsors have submitted an updated version of the wide-ranging Protecting Our Democracy Act, first proposed in the last Congress. As Charlie Savage recently reported in The New York Times, the PDA, if enacted, would make it more difficult for presidents to offer or bestow pardons corruptly, dodge Congress’s oversight subpoenas, spend or freeze federal spending unlawfully, fire inspectors general, retaliate against whistleblowers, or profit financially from “emoluments” bestowed on them while in office.

Yet other PDA provisions aspire to make it easier to prosecute former presidents for crimes while in office, insulate the Justice Department from improper political interference, render presidential transitions more efficient, tighten up enforcement of limitations on political activity by government employees, impose new limitations on the use of acting officials to fill advice-and-consent executive branch positions, codify the pre-Trump custom of tax transparency for presidential candidates, and eliminate the prospects for foreign interference in U.S. elections.

The current Congress has what may be an all but uniquely favorable window for pursuing action on these fronts. In part, that is because the Trump administration demonstrated the dangers of weak presidential accountability with abuses that, under previous presidents, might have seemed the stuff of mere law school hypotheticals. Yet concerns about presidential overreach did not begin with Donald Trump. Albeit at different levels of intensity, anxiety about an increasingly imperial post-Watergate presidency stretches across administrations of both parties going back to the Reagan administration.

The Biden White House—like any White House—will voice concerns about the imposition of new guardrails on the presidency. Having campaigned, however, as the anti-Trump, and having extraordinary experience in the legislative branch, President Biden would likely be the most sympathetic chief executive imaginable when it comes to these reforms. As a senator, for example, he too pushed for extensive reform of the War Powers Resolution.

Moreover, organized support from outside the government has the potential to add momentum for the enactment of these bills in some form. The nonprofit Protect Democracy, which boasts a bipartisan “cross-ideological advisory board,” is organizing support for the PDA. Further, the PDA and the proposed National Security Powers Act cover many of the concerns—even if not precisely following each recommended detail—voiced by the law professors Bob Bauer and Jack Goldsmith in their widely noted 2020 book, After Trump: Reconstructing the Presidency. Bauer, a former White House counsel under President Barack Obama, and Goldsmith, a former Justice Department official under President George W. Bush, have launched their own bipartisan program—the Presidential Reform Project—to build support for such reform initiatives.

Not surprisingly, reform proposals of this scope, even if enacted, are likely to raise significant issues of separation of powers law. In some respects, House Democrats have been cautious on this front. For example, to counter undue political interference with Justice Department investigations, their proposed PDA would require the attorney general to retain a log of communications related to ongoing investigations. The act would exempt, however, communications from the president relating to investigations unconnected to his family and close associates. Nor would Congress have access to the logs unless the department’s inspector general reported that a logged communication “is inappropriate from a law enforcement perspective; or . . . raises concerns about improper political interference.” These provisions are designed to minimize any direct imposition on the president or any exposure of internal deliberations beyond the executive branch itself, except in the most pressing contexts.

On the other hand, the act would require extensive disclosure to congressional committees of documents held by the Justice Department in connection with presidential pardon decisions, no doubt raising questions of executive privilege. Likewise, the act would prohibit the presidential removal of any inspector general except when based on nine specific varieties of “good cause.” Many legal scholars, including myself, have defended Congress’s authority, with respect to most administrators, to limit presidential removal authority in this way. The Roberts Court, however, features the most pro-executive lineup of justices since World War II. It is not clear that they would uphold these limitations.

The presence of these and similar legal uncertainties would not diminish the significance of these proposals, if enacted. But it does underscore how, even with reform statutes on the books, the checking and balancing of executive power is dependent on presidential attitudes and norms that operate within the elected branches. Even if a president were constitutionally entitled to withhold pardon-related documents, presidents could voluntarily decide to share them. Conversely, even if Congress were entitled to take advantage of new expedited procedures to enforce its subpoenas, the existence of that process by itself does not guarantee vigilance in congressional oversight. Members of Congress would still have to take their responsibilities seriously in order for the process to work.

The two proposals now before Congress by no means exhaust the steps necessary to ensure a presidency that operates in a manner consistent with both democratic accountability and the rule of law. It would be tragic, however, if Congress did not take advantage of this unusually propitious moment to breathe new life into checks and balances.

Peter M. Shane

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Follow Peter on Twitter at @petermshane