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Donald Trump Flaunts the Dangers of Presidential Power

They called the last guy “No Drama Obama,” [1] 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:

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 [6], “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 [7] nine months into his tenure. Indeed, this putatively “isolationist” president has deepened entanglements on every battlefield Obama left him, ramping up airstrikes [8]kill-or-capture missions [9], and civilian casualties [10].

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, [11] who served in the Justice Department’s Office of Legal Counsel during the Bush administration.

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 [12] 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,” [13] 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 [14].  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 [15]George W. Bush [16], or Barack Obama [17], 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 [18].  

“Officials start to ignore the Incredible Shrinking President,” [19] 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 [20]. In the Huffington Post [21] 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” [22]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 [23].

13 Comments (Open | Close)

13 Comments To "Donald Trump Flaunts the Dangers of Presidential Power"

#1 Comment By Chris in Appalachia On January 11, 2018 @ 11:55 am

“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.”

Maybe someone should drop a bomb on his Nobel Peace Prize.

#2 Comment By b. On January 11, 2018 @ 11:58 am

“The President is not the solution, the President is the problem.”

“The four most terrifying words in the English language are: I’m the President.”

#3 Comment By Paul Clayton On January 11, 2018 @ 1:13 pm

“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. ” After reading this, it’s hard to go on. Yeah, Obama was no drama, but he was a sneak, some would argue, a petty, but sneaky, dictator. He was cool before the lights, and he said a lot of nice things, depending on what side of the argument you were. But it was what he did and did not do, which counts. Obama nearly wrecked the country. Trump is still trying to dislodge the roots and tentacles of Obama many Frankenstein-ish governmental re-configurations. Obama, the non-drama queen, evidently planned to hand off his re-invented America to Queen Hitlary, to nail down the loose ends. That didn’t happen. So Trump has to go down into the basement, and up into the attic to kill the snakes and vermin that have invaded the houses of government (FBI/CIA/NSA/ATF/IRS/ETC… Okay? Of course there’s gonna be drama. There was always drama in the Vampire movies when the hero finally found the vampires lying in their coffins during the daytime. So when Trump is driving in the stakes, drama is what we get. And I love.

#4 Comment By Steve Naidamast On January 11, 2018 @ 1:37 pm

The US should have moved to a parliamentary form of government years ago. There is absolutely no need for an executive branch any longer that is so totally isolated from the legislature.

Parliamentary government also provides for far greater proportional representation.

The same holds true for the Supreme Court where no justice should serve longer than two years with each being randomly rotated through a selection system that provides for the top potential candidates whenever a new seat opens up.

As a young lady remarked years ago, the US is a modern-day country struggling with an 18th century Constitution…

#5 Comment By peter On January 11, 2018 @ 3:04 pm

“No drama Obama” was in fact the quintessential English politician: a huge gap between his talks and his actions (aka hypocrisy!)
While speaking, president Obama was elegant, eloquent, somewhat patronizing.
If one looks at his actions, he was sneaky and perfidious. His actions betrayed his speeches.
The most visible dichotomy was Mr. Obama being the only president continuously at war during his two terms – and getting the Nobel Peace Prize!
Receiving and still keeping this prize display both the madness of political correctness and Mr. Obama’s arrogance.
Donald Trump seems to be the opposite of a hypocrite. And he seems to care very little about political correctness.
He seems to enjoy speaking his mind!
This seems to be shocking for other politicians, for the media, for the world.
Mr. Trump might use his directness as a negotiating tool: ask for everything, you might get what you want (obviously less than everything). A former CEO in full action – not a college professor, not an actor, not a lawyer!
Foreign policy results:
North Korea is negotiating with South Korea.
Three two term administrations did not get anywhere with the Kim dynasty: NK has operational missiles and A-bombs.
What if the “my button is bigger” approach works better?
Didn’t Europe and Japan take full advantage of our military protection to focus on commercial production and increase their market share in the world, having to spend less money on defense?
OK – in all fairness, our military-industrial-complex was also in full action since Eisenhower’s final speech…
So, Mr. Trump speaks openly about real facts, which matter to most of us – especially to the “deplorables” who voted for him!
And the economy is humming along. And manufacturing jobs are being added.
If he improves the relationship with Russia, it will be better for humanity!

#6 Comment By David E On January 11, 2018 @ 3:14 pm

@Paul Clayton – Can’t you do a little better than a void-of-specifics rant? “Queen Hitlary”?

I read this site most every day, expecting serious discourse about real issues, not fact-free rants.

#7 Comment By The Wet One On January 11, 2018 @ 4:30 pm

So in other words, Congress has refused to do its job, take up its constitutional role and completed reneged on its responsibilities.

Or do I have that wrong?

If I’m not mistaken, Congress has the war making powers, or alternatively, the power of the purse over war making. As we have seen, Congress hasn’t done anything with its power, despite its power being supreme in this arena.

And so grows the Empire.

#8 Comment By Patrick On January 11, 2018 @ 5:36 pm

Perhaps the fundamental problem is a perversion of our constitution that is based upon a separation of powers designed to prevent a dictatorship or oligarchy. Congress has progressively surrendered its power to the executive branch of government; be it to pursue foreign wars or to govern by executive orders.

Obama was very dangerous to our constitutional republic because of the allegiance of; career bureaucrats, federal investigative agencies, and a fawning press. As well as an opposition party with many who have more of an allegiance to wealthy donors than those they are supposed to represent.

A prime reason that I voted for Donald Trump was because I feared Hilary Clinton as president. She and her husband have an unbelievable record of corruption, yet have never been help accountable other then being disbarred from practicing law and civil law suits.

I don’t think that Donald Trump could get away with a fraction of what Hilary would have. A Republican opposition party full of crony capitalist would have preferred cooperation verse opposition. With the turn of Justice Scalia’s seat to a radical progressive, Hillary may have achieved to power of government control not seen since Franklin Roosevelt.

My thought going into the election was that one candidate would consolidate the power that her predecessor achieved by executive action and packing courts with ideological sycophants. The other would realize that he was in over his head and seek advice; or bumble his way to impeachment or finish as a weak one term president accomplishing little.

I suspect that if the Democratic Party gains control of both houses of congress, or can convince a few Republicans to support impeachment, than President Trump may be removed from office. Our nation been through that before and we have a good vice president. I told my wife when we voted that a prime reason to vote for Trump is because he would be easier to remove from office.

#9 Comment By David Nash On January 11, 2018 @ 5:51 pm

The Wet One said on January 11, 2018 at 4:30 pm

“So in other words, Congress has refused to do its job, take up its constitutional role and completed reneged on its responsibilities.”

Not since December 7, 1941, at least.

But, I am a cynic.

Sam Clements was right, “There is no distinctly American criminal class – except Congress.”

#10 Comment By TR On January 12, 2018 @ 6:08 pm

Could we stop blaming Obama for the Nobel Peace Prize? He didn’t deserve it but he didn’t apply for it either. Blame the stupid Swedish Committee which has been doing stupid things and making stupid choices for years.

#11 Comment By tzx4 On January 13, 2018 @ 9:09 am

@Paul Clayton, please offer a rational explanation of how Mr Obama was a dictator? Your writing is either entirely not fact based, or it is deliberate hyperbole.
To my thinking if he were a dictator, he would still be in power having dissolved the Constitution and subjugated Congress and the courts, and would be ruling by martial law.
I guess your definition of dictator and mine are different.

#12 Comment By One Guy On January 16, 2018 @ 1:43 pm

Paul Clayton is here to remind us that it is impossible for a Trump supporter to praise Trump without mentioning Obama and/or Hillary.

#13 Comment By Kenneth On January 18, 2018 @ 11:38 am

Steve Naidamast says:
January 11, 2018 at 1:37 pm
“The US should have moved to a parliamentary form of government years ago. There is absolutely no need for an executive branch any longer that is so totally isolated from the legislature.”

Indeed. The imperial presidency cannot be meaningfully restrained or held to account by the legislature. This is not a partisan observation; it applies equally regardless of which party’s nominee wears the purple, and is a conclusion reached from every point of the political compass.

Given the indisputable imbalance between the imperial presidency and the legislative branch, the only way to preserve limited and responsible government in the United States is to make senatorial confirmation revisable on a simple majority, in effect an American form of confidence motion.