Yeah, this is another example of the failure of our system. If we rely on the Senate, and the Senate is complacent or complicit, there's not much we can do even if the rule of law is followed.
The scope of all legitimate executive power is problematic because it eludes precise boundaries. When a president is of the same party as the House and/or Senate they have a corruptive, partisan tendency to acquiesce to questionable exercises of executive power by "their" president. The coupling of the indefinite scope of executive power with partisan acquiescence means that "past is prologue." Left unchecked, questionable exercises of executive power ensure more of them by future presidents.
In
Youngstown Sheet & Tube Co. Justice Jackson expounded eloquently on the indeterminate scope of executive power.
A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves.
Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.
A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question.
They largely cancel each other.
And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way.
The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.
Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.