A Super-Power Presidency Is Unconstitutional

It just keeps growing, and now Trump has it all

Now that the Electoral College has made Trump’s 2016 win final, this is a good time to start thinking about what powers he will have when he comes into office in January. While the Constitution technically provides certain constraints on presidential actions, many of these formal and informal restrictions have fallen by the wayside.

The Growth of Presidential Power

Eisenhower warned that this was a problem.The dramatic increase in government services and departments during the Great Depression, coupled with the expansionary effects of a world war, left the federal government, and the president in particular, with new and broad powers. Gazing upon the redesigned government, Eisenhower warned of a military-industrial complex, saying, “Our military organization today bears little relation to that known by any of my predecessors in peacetime, or indeed by the fighting men of World War II or Korea.”

Nonetheless, many citizens did not worry as Johnson created “The Great Society.”

With Nixon, however, Americans awakened to the real problem of providing presidents with so much control over foreign and domestic affairs. Nixon claimed the power to unilaterally authorize the bombing of Cambodia (after Congress explicitly condemned any action in that country) and he authorized the NSA to spy on American citizens without a warrant.

Congress attempted to check these actions, creating the Foreign Intelligence Surveillance Court intended to provide government oversight of domestic surveillance. Instead, it provided the government with judges they needed to rubber stamp warrants for domestic surveillance.

They also passed the War Powers Resolution intended to contain presidential discretion over military affairs. Instead, it served to provide the executive with a way to legally justify unilateral action that falls below the 60-90 day threshold. Presidents came to have legal authority to engage in actions without having to go through Congress.

For this reason, Reagan saw a genuine opportunity to maintain popularity and achieve his objectives as president by using the power of his office to dramatically increase the arms race in order to defeat the Soviet Union. His gamble paid off as the Soviet Union fell.

Both George H.W. Bush and Clinton followed this model, seeing major domestic policies frustrated while enjoying heightened popularity when they intervened internationally.

By the time George W. Bush came to power, the executive branch had an established focus on international crises, only paying lip service to any sweeping legislative changes. The War on Terror served as a shot of steroids to presidential unilateralism and continues juicing it to this day.

While the president today has a variety of powers (enumerated, implied, discretionary and — more controversially — inherent ones), none are more controversial and disconcerting than the commander-in-chief power and the ability to authorize executive orders.

The Commander-in-Chief Power

As we all know from reading the Constitution (that’s something everyone does, right?) the president is the commander-in-chief of the armed forces. This provides him with the ability to initiate hostilities against any organization or country around the world at any time by ordering the armed forces into action.

They are duty-bound to follow his orders. Even if the president orders an illegal action, such as waterboarding suspects or targeting the families of terrorists, it is likely that the military would have the same reaction as they did when George W. Bush ordered illegal actions — they obeyed and simply wrote memos outlining their legal and moral concerns.

Referring back to the Constitution — that everyone reads — one might be tempted to say that Congress, not the president, has the power to declare war. Many legal scholars argue that Congress’s power to issue letters of marque and reprisal provides them with the exclusive power to initiate both large- and small-scale hostilities. By the letter, this is correct. By precedent, however, presidents have consistently initiated hostilities without prior authorization from Congress in most major and minor engagements.

Executive Orders

While Congress has the official law-making ability, presidents have used executive orders since the founding to engage in legislative actions. Executive orders come in many sizes and shapes. Some have limited impact on law and order, like Washington’s Thanksgiving Proclamation. Presidents have passed a little over 5,000 ceremonial proclamations similar to Washington’s.

Other orders are more significant. Presidents have passed around 3,200 orders that impact both foreign and domestic policy. These include “settle down” proclamations that come as a response to domestic unrest, such as John F. Kennedy’s cease and desist order to opponents of civil rights legislation in Mississippi or George H. W. Bush reacting to riots in Los Angeles in 1992. Some of these initiate the use of the military to quash riots.

Others shook the foundation of liberal democratic society, such as FDR’s order to intern Japanese Americans or George W. Bush’s order to forgo the Geneva Convention’s restrictions on interrogation techniques.

Unlike the passage of legislation, which requires lengthy discussion and a great deal of compromise, executive orders exist outside the confines of agreement. To quote Obama on the subject, “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone.” This, ladies and gentleman, is all one requires in order to create an executive order.

Bending the Constitution

It is now possible for the president to unilaterally control military operations and create legally binding executive orders that can fundamentally undermine the very core of liberal democracy.The Constitution places constraints on the exercise of power in order to protect the rights of American citizens. The Founders created a system that separates legislative, executive, and judicial power into different sets of hands in an attempt to ensure that government has to engage in a collaborative effort in order to change policies. It is a system created to force “ambition … to counteract ambition.”

It is therefore unsurprising that presidents, frustrated with the tedious process of obtaining congressional approval, seek to get around the legislative branch. It is problematic, however, when Congress and the Courts allow presidents to act that way. It is now possible for the president to unilaterally control military operations and create legally binding executive orders that can fundamentally undermine the very core of liberal democracy.

This power will now be in the hands of a man who promises to “bomb the hell out of ISIS,” thinks we should “take out [the] families” of terrorists, and wants to suspend immigration from countries with “a proven history of terrorism.”

Considering his current cabinet picks and his personality, it is likely that President Trump will bring the use of unilateral powers to a new level. Whether you support or oppose his views, this is a meaningful cause for concern. Constitutions can only bend so much before they break.

This piece ran on LearnLiberty

Further Reading

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