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Donald Trump Flaunts the Dangers of Presidential Power

Gene Healy

They called the last guy
“No Drama Obama,”
but after the tumultuous,
exhausting, occasionally terrifying first year of this
administration, no one is likely to make that mistake with Donald
Trump. On the plus side, for executive power nerds, the Trump
presidency has been quite the intellectual feast. Almost every day,
our 45th president has turned law school hypotheticals into live
issues, sending us back to the books on questions like:

  • Can a sitting president
    be prosecuted?
  • Does he have the constitutional power to pardon
    himself?
  • Does
    the 25th Amendment
    allow removal for megalomania and low
    impulse control?
  • And if the president decides to unleash thermonuclear
    “fire and fury” on North Korea, is there anything
    Congress—or anyone else—can do
    to stop him?

At this juncture, the prospect that Trump’s erratic
behavior might irreparably weaken the presidency seems like an odd
thing to worry about, yet some people do. “If Congress and
the courts diminish the power of the office to constrain
him,” Eric Posner and Emily Bazelon wonder in
the New York Times
, “could they leave the office
too weak for future presidents to be able to govern
effectively?”

It’s early days yet, but I’ll hazard a guess: no.
Nearly every modern president has left the office
stronger—and more dangerous—than he found it. So far,
Trump appears unlikely to depart from that pattern.

Barack Obama left office as the first two-termer in American
history to have been at war every single day of his presidency. In
his last year alone, U.S. forces dropped over 26,000 bombs on seven
different countries. Trump
blew past that tally
nine months into his tenure. Indeed, this
putatively “isolationist” president has deepened
entanglements on every battlefield Obama left him, ramping up

airstrikes
,
kill-or-capture missions
, and
civilian casualties
.

The legal justification for all this is the 2001 Authorization
for the Use of Force Congress passed three days after 9/11, and
which Trump’s two predecessors transformed into an enabling
act for globe-spanning war. Far from resisting mission creep, the
Trump administration has employed that authority for everything
from boots on the ground in Tongo Tongo to a “Make
Afghanistan Great Again” troop surge.

Outside of the ever-expanding purview of the AUMF, the Trump
administration believes it has enormous inherent powers over war
and peace. And as a practical matter, they may be right:
“don’t expect the law or lawyers to provide avenues to
constrain the President from using force in North Korea,”

warns Jack Goldsmith,
who served in the Justice
Department’s Office of Legal Counsel during the Bush
administration.

Nearly every modern
president has left the office stronger-and more dangerous-than he
found it. So far, Trump appears unlikely to depart from that
pattern.

Last summer, shortly after Trump’s off-the-cuff threat to
nuke North Korea, the New Yorker’s Evan Osnos flew
to Pyongyang for a series of interviews with top regime officials.
He recounted
an unsettling exchange
over dinner and drinks with Ri Yong Pil,
a Foreign Ministry apparatchik. Ri asked: “In your system,
what is the power of the President to launch a war [or] does the
Congress have the power to decide?” The president “can
do a lot without Congress,” Osnos answered, including launch
nuclear weapons; “what about in your country?”
Ri’s answer “was similar”: “Our Supreme
Leader has absolute power to launch a war.”

On the home front, thankfully, Trump’s unilateral powers
are less than supreme. The candidate who proclaimed “I alone
can fix it” has learned that the presidency doesn’t run
like a business or a reality show—you can’t just say
“you’re fired” to Congress or the courts.

Trump might get his way more often if not for his pathological
tendency to get in his own way. A competent and savvy would-be
strongman wouldn’t announce major policy changes over Twitter
or dare “so called judges” to strike them down.

Still, as then-law professor, now Supreme Court Justice, Elena
Kagan noted in a 2001 article
“Presidential Administration,”
modern presidents
have accrued significant power over regulatory policy,
“making the regulatory activity of the executive branch
agencies more and more an extension of the President’s own
policy and political agenda.” The Trump administration used
that authority aggressively in its first year, tapping the brakes
on “significant” new regulations (costing $100 million
or more), undoing 15 Obama-era rules via the Congressional Review
Act, and restricting the practice of making law via
“guidance” letters
. If the results fall far short
of Steve Bannon’s promised “deconstruction of the
administrative state,” they’re still welcome changes
for conservatives and libertarians.

But what goes down can come back up, and rise to new heights. As
Kagan noted, the president’s administrative authority works
just as well to push “a distinctly activist and
pro-regulatory agenda.” Even when one approves of what the
president does with the stroke of a pen, the fact that so much
power has been concentrated in the presidency undermines the rule
of law. One of Hamilton’s main arguments in the
Federalist for “energy in the executive” was
that it would be “essential to the steady administration of
the laws.” In the modern era, it has had the opposite effect:
the “law” can change radically from administration to
administration, depending on the policy preferences of the
president. You may “win” or “lose” every
four to eight years, depending on whether the president shares your
preferences, but at some point it’s worth asking: is this any
way to govern a country?

Handwringing about an unpopular president weakening the
executive branch is one of the hoariest—and
dumbest—clichés in presidential punditry. Whether
it’s Bill
Clinton
, George
W. Bush
, or
Barack Obama
, every time a president’s approval ratings
tank, we get a flurry of think pieces about the “Incredible
Shrinking Presidency.” Trump, massively unpopular to begin
with, has had
more than his share
.


“Officials start to ignore the Incredible Shrinking
President,”
MSNBC’s Steve Benen announced in
August: “It’s like we’re watching a president
become a lame duck just six months after his inauguration.”
“The ‘most powerful man in the world’ is suddenly
looking mighty powerless,” echoed
Mike Allen in Axios
. In
the Huffington Post
last month, Kevin Price proclaimed that
“Donald Trump’s influence is shrinking at a breakneck
pace,” as supposedly evidenced by the fact that he’s
abandoned “conventional methods to get things passed and is
now using policies, regulations, an d executive orders to get his
agenda accomplished.” But the prizewinner is probably
Time magazine’s April 6 feature on
“The Incredible Shrinking Power of the President’s
Threats”
—posted just hours before Trump ordered a
drive-by missile attack on the Assad regime in Syria.

That’s the thing about the “Incredible Shrinking
Presidency”: it never seems to get any smaller or less
menacing. But if there’s ever going to be a “teachable
moment” on the dangers of concentrating too much power in the
executive branch, it ought to be now.

Gene Healy is a
vice president of the Cato Institute and the author of The Cult of the
Presidency
.