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Trump Exposes the Peril of Presidential Power Grabs

Congress has been yielding lawmaking authority for almost a century. But never before has a president abused the power of his office quite like this.
August 28, 2019
Trump Exposes the Peril of Presidential Power Grabs
President declares a national emergency to free up federal funding to build a wall along the southern border, February 2019. (Photo by Alex Wong/Getty Images)

Like a sorcerer’s mad apprentice, Donald Trump conjures a tsunami of self that swamps our waking hours. A gyrating stock market. A spasmodically enveloping trade war. A fresh round of cruelties toward asylum-seekers. An imperious tweet ordering businesses to boycott China. An ever-escalating assertion of new presidential prerogatives. So completely does Trump’s feral inner landscape permeate our collective consciousness that his presidency feels like the empowerment of mass psychosis. 

How did this happen? From a historical perspective, it’s the work of a century and more.

The growth of presidential power escaped the Founders’ intended framework long ago. In that sense, Donald Trump’s contempt for constitutional constraints proceeds from the executive expansionism that marks America’s modern history.

What makes this president uniquely dangerous is that his romance of unchecked authority serves the personal pathology of an unstable would-be autocrat. Too late, we see the peril to democracy of licensing any president to exceed his writ. 

The Framers sought to prevent this. In theory, Article I reposes primacy in Congress, granting it the power to craft budgets, confirm or reject key executive appointments, override presidential vetoes, and even remove the chief executive. James Madison assumed that “[i]n Republican government, the legislative authority necessarily predominates.” Emblematically, he emphasized that because “the executive is the branch of power most interested in war, and most prone to it … [the Constitution] has accordingly … vested the question of war in the Legislature.” 

By design, the charter of the president in Article II was sparing, chiefly to command the armed forces and sign or veto legislation. Having shucked off King George so recently, the Framers shrank from creating a quasi-monarch.

Time passes; the world encroaches. Social contexts change, and so do concepts of governance. Since the beginning of the 20th century, executive power has slipped its original constitutional moorings. This happened most dramatically in the exercise of military power: lacking Congress’s power to declare war, presidents started waging war without declaring it in the name of national security. 

Such undeclared conflicts helped shape our post-World War II history: Korea, the Bay of Pigs, Vietnam, Grenada, Panama, Bosnia, Afghanistan, Iraq. Some followed elastic congressional authorizations; others did not. Since 9/11, one sole authorization has been the springboard for military operations throughout the Middle East. 

But the presidential absorption of congressional prerogatives transcends armed conflict. Over a century ago Theodore Roosevelt argued that presidents could do anything not explicitly barred by law or the Constitution.

Here, it is important to distinguish between an expansion of federal power through congressional action—for example, the civil rights laws of 1960s—and the burgeoning assertion of executive authority unimpeded by Congress or the courts. It is one thing to argue that the Commerce Clause warrants expansive federal legislation; it’s another to suggest that a president is inherently entitled to define his own powers. Instances of  such unilateral executive action include, at least arguably, FDR’s internment camps for Japanese-Americans; Richard Nixon’s wage and price controls; George W. Bush’s executive order expanding access to federal grants for faith-based charities; Barack Obama’s executive order protecting Dreamers; and Trump’s unauthorized reallocation of monies appropriated to the military to build his vaunted wall—invoking the pretext of a “national emergency.”

This last provides a good example of how far executive power has outstripped that of Congress. The 1976 National Emergencies Act was intended to address this imbalance by requiring the president to spell out his reasons for declaring a national emergency and, after six months, empowering Congress to terminate the declaration. But despite the declaration of 58 national emergencies, Congress has acted but once.

Some argue, further, that congressional legislation has delegated such broad powers to administrative agencies that the “administrative state” far exceeds any legislative mandate. But one sea change is abundantly clear – increasingly Congress has abdicated its constitutional role. 

In our current polarized politics, a key component of this derogation is sheer cowardice. In National Review, Senator Mike Lee wrote: “What Congress wants today is to be weak… for fear of the political consequences of hard choices.” When deferring to the executive won’t provide sufficient cover, all too often Congress punts issues to the courts. 

Inevitably, America’s “democratic” governance has decamped from Madison’s constitutional architecture. “An elective despotism was not the government we fought for,” he admonished, “but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by others.”

Good luck with that. 

Juxtapose Madison with his philosophical and psychological antithesis, the constitutional philistine Donald Trump. “I have the right to do whatever I want as president,’ Trump proclaims. And Madison would blanch at a Congress run by craven partisans who abdicate their legislative authority to suit Trump’s thirst for power.

In this vacuum, Trump seeks to misappropriate presidential authority to satisfy his political and psychological needs. Here the “imperial presidency” merges with unbridled sociopathy. 

To start, Trump’s Justice Department has affirmed that he cannot be indicted for obstructing justice in the Russian investigation – or for any other criminal conduct. This solidifies a dangerous departure from democratic rule first stated by the Justice Department under Nixon and then Bill Clinton: Alone among Americans, a sitting president now transcends law.

Emboldened, Trump and his appointees routinely disdain congressional oversight and legal or constitutional constraints. In the Atlantic, Donald Ayer summarizes Trump’s arrogation of power:

Witness his assertion of the right to flout all congressional subpoenas; his continuing refusal to disclose his tax returns, notwithstanding Congress’s statutory right to secure them; his specific actions to bar congressional testimony by government officials; and his personal attacks on judges who dare subject the acts of the administration judicial review. More blatant yet are his recent assertion of a right to accept dirt on political opponents from foreign governments, and his declaration of a national emergency, when he himself said “he did not need to do this,” he just preferred “to do it much faster.”

 What distinguishes Trump from his ambitious predecessors is captured by his contemplation of a “self-pardon”: the expansion of presidential power to serve purely personal ends. Writes David Graham in the Atlantic:

That is why Trump’s approach to executive powers is so strange. Most of the new powers he is claiming are about self-preservation. They arise not out of any public demand, nor out of any desire to accrue powers to the presidency itself. There are almost entirely motivated by personal, seemingly narcissistic reasons. This is in keeping… with his view of the presidency less as a vehicle for any specific policy agenda and more as a vehicle for self-glorification. Trump ran for the presidency for personal reasons, and he is expanding its power for personal reasons…

In other words, our constitutional checks and balances have so eroded that the presidency can be—and has been—hijacked to serve the ineradicable pathology of a man who would obliterate that design altogether. For Trump, even public policy is personal: the only organizing principle for his wildly oscillating stances is the desire to perpetuate himself in office by any means available. 

That includes stacking the remaining constitutional check on executive overreach: the judiciary. As Philip Rotner wrote here in The Bulwark:

Trump has … weakened judicial guardrails by salting the federal judiciary with politically sympathetic judges, an alarming number of whom received ‘Not Qualified’ ratings … by the American Bar Association.

Meanwhile, the Trump-made Supreme Court has issued a series of straight party-line 5-4 decisions that have weakened the guardrails … against the expansion of presidential power. The Court affirmed Trump’s authority to restrict travel from mostly Muslim countries; upheld transparent, politically motivated voter suppression laws; ruled that immigrants held in detention facilities have no right to a hearing to decide whether they were being legally held; and… declared open season for state politicians to rig elections by political gerrymandering…

One looking for the Supreme Court to constrain Trump’s further assertions of executive power may expect too much. His latest appointee, Brett Kavanaugh, seems likely further to tilt the court toward supporting a presidency unbound by legal limits.

One ominous sign is his attitude toward United States v. Nixon, wherein the Supreme Court denied Nixon’s assertion of executive privilege to withhold tape recordings that exposed his obstruction of justice. Kavanaugh, reports the Associated Press, has posited that the case was “wrongly decided” because it “took away the power of the president to control information in the executive branch.” By this standard, a president can withhold at will information sought by Congress or the Courts, including evidence that he has violated the law and thereby committed a potentially impeachable offense. 

Equally troubling, Kavanaugh joined the 5-4 Republican majority of the court in refusing to stop Trump from transgressing Congress’s legislative authority by reallocating to the wall $2.5 billion granted the military for other purposes. 

The constitutional context is striking. Trump acted after Congress had expressly refused to appropriate monies for the wall, provoking a costly government shutdown—a naked assertion of his power to gut the budgetary authority granted Congress under Article I. In response, for the first time ever Congress rejected a president’s emergency declaration, though it couldn’t overcome his veto

Effectively siding with Trump, the court overruled a lower court decision that Trump’s action exceeded his lawful authority, allowing Trump to proceed. In doing so, the justices ignored a congressional brief stating that: “Under our constitutional scheme, an immense wall along the border simply cannot be constructed without funds appropriated by Congress for that purpose.”

And so Trump can emasculate a congressional statute—and Congress’s explicit constitutional powers—simply to satiate his political base. Little wonder, then, that he feels free to attack our intelligence agencies and undermine our electoral processes to protect his grip on power. 

Take the slanders he directs at those charged with protecting America’s national security. To be sure, before the mid-1970s, the CIA and FBI and spied on political actors from the John Birch Society to Martin Luther King. But when these activities were uncovered, a consensus emerged that these critical agencies should be free of political pressures. 

But this bipartisan resolve did not survive Trump’s blatant subservience to Russia. He has attacked the CIA and the FBI for investigating the numerous ties between his campaign and Kremlin-connected Russians. With an insidious combination of self-protection and proactivity, he disdains the warnings of his own intelligence appointees concerning Russia’s intrusion to influence our 2016 presidential election—and their plan to do so in 2020. 

Stop to consider this. Recently the Senate Intelligence Committee reported that 21 states were targeted by Russian hackers in 2017, exploring how to hack statewide election results. These intrusions, the committee stated, serve Russia’s larger goal “undermining the integrity of elections and American confidence in democracy.”

Yet Senate Majority LeaderMitch McConnell, is helping Trump by trampling on the separation of powers: He has blocked two pieces of legislation designed to safeguard our elections in 2020 by requiring paper ballots and voting machines not directly connected to the Internet. 

There is nothing partisan about either legislative proposal—except that they could keep the Russians from helping Trump win re-election. Plainly, Trump prefers subverting democracy with the help of a foreign autocracy that loathes it—and the cynical and supine Republican leader of the Congress that James Madison conceived of as a barrier to executive overreach.

Nor is McConnell alone in helping Trump subvert the Framers’ design. In Attorney General William Barr, Trump has found the perfect avatar to convert his authoritarian cravings into unmediated executive power.

“For many decades,” Donald Ayer writes, “Barr had a vision of the president as possessing nearly unchecked powers.” Barr’s most naked assertion occurs in his unsolicited memo to the Justice Department prior to his appointment, which insists that “[Robert] Mueller’s obstruction theory is fatally misconceived” and “would… do lasting damage to the presidency.” 

Barr is more than Trump’s surrogate: Given the former’s ambitions for expanding presidential power, Trump is Barr’s instrument. Consider Barr’s foundational principles, emphasized in his own italics:

“Constitutionally, it is wrong to conceive of the president as merely the highest officer within the Executive branch hierarchy. He alone is the executive branch. As such he is the sole repository of all Executive powers conferred by the Constitution.” Moreover, “the Constitution vests all federal law enforcement power, and hence prosecutorial discretion, in the President.” 

Accordingly, Barr concludes, there is “no limit on the President’s authority to act [even] on matters which concern him or his own conduct.” Therefore “Congress could not make it a crime for the president to exercise supervisory authority over cases in which his own conduct might be at issue.”

In sum, the president can violate the law as he likes, immune from law itself. In dangerous confluence, Barr’s extra-legal presidency feeds Trump’ s psychological need for unbridled power.

Catalog Barr’s actions as attorney general:

He defied congressional demands for testimony and documents. He preempted Mueller’s report by misrepresenting its contents to further Trump’s false claims of exoneration and contradicting its conclusions by absolving Trump of obstruction; he ignored Mueller’s protests regarding his summary mischaracterization; and he mischaracterized the report—yet again—just hours before its release. 

Further, he accused the FBI of improperly “spying” by investigating Trump’s connections to Russia. He sanctioned an obvious lie to the Supreme Court to further Trumps efforts to include a citizenship question in the census. He tried to skirt the court’s ruling until the DOJ lawyers involved attempted to resign. He moved to block the House from investigating Trump’s finances. He refused to prosecute secretary of commerce Wilbur Ross – and himself – pursuant to contempt citations for refusing to comply with congressional subpoenas.

An attorney general in a functioning democracy does not rend the rule of law. Given that, one must assume that Barr will quash any investigation or prosecution which concerns, or even displeases, Trump himself—including Russia’s efforts to re-elect this derelict and disloyal president. 

As this misappropriation of executive power proceeds apace, so does the degradation of our democracy. Our president is a morally debased authoritarian-in-waiting who shreds legal and constitutional constraints. His party’s representatives in Congress have abandoned their constitutional duty to curb him. Its partisan Supreme Court majority may well emulate this fatal abdication. 

As the institutions of democracy fail, so does the popular understanding of what democracy is—and the means or will to uphold it.  Any student of history has seen this trajectory before, and knows too well where it ends.

Before it’s too late, enough.

Richard North Patterson

Richard North Patterson is a lawyer, political commentator and best-selling novelist. He is a former chairman of Common Cause and a member of the Council on Foreign Relations.