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Monday, September 2, 2019

The Presidency Is Too Powerful

We now live in a world where a single individual can dictate the behavior of a country. Is that the world you want to live in?

Image Credit: Official White House Photo by Joyce N. Boghosian [public domain]

Imagine living in a world where a single individual can issue binding edicts directly controlling the behavior of every firm within a nation. Where one man can unilaterally impose his will upon the general public to the point of expressly forbidding trade relations with an entire country. How terrifying does that sound? That may well be the world we live in.

Trump’s Protectionistic Trade Policy

Last Friday, China announced it is imposing a new round of retaliatory tariffs that will cover around $75 billion worth of American goods. President Trump responded by saying the United States has “lost, stupidly, Trillions of Dollars with China” and we’d be “better off without them.” He went on to say that

our great American companies are hereby ordered to immediately start looking for an alternative to China, including bringing your companies HOME and making your products in the USA.

You may find this preposterous, but following his tweet storm, Trump correctly pointed out that his executive powers are vast and powerful. He specifically referenced the International Emergency Economic Powers Act of 1977, which allows the president to declare a national emergency and then “investigate, regulate, or prohibit . . . any transactions in foreign exchange.” This gives the executive branch virtually unlimited power to directly control foreign exchange in times of emergency and leaves the executive to decide what an emergency is. That is like telling a kid they are only allowed to have a cookie before dinner when they really need to and then letting them decide when they need to.

Even if Trump does not have the power to directly order all US firms to cease trade with Chinese corporations, the discretionary power held by the executive branch is strong—so strong that he may be able to achieve a similar outcome through other means. He could impose massive tariffs so large they essentially act as de facto prohibitions. He could threaten noncompliant firms with harsher regulations or enforcement that is more aggressive. He may be able to achieve his goals indirectly even if he cannot achieve them directly.

Executive Overreach

Either way, rhetoric like this shifts the Overton window further and further. We begin to accept things that seemed entirely unacceptable not long ago. We become desensitized. The dividing lines between the different branches of government become increasingly blurred. That is how we got where we are today.

Executive overreach is not a new phenomenon, but it does have an accumulative effect. Each president is able to get away with a little bit more, typically under the guise of an “emergency.” Slowly they amass greater and greater power. Slowly the concept of strictly limited, enumerated powers deteriorates. While each president since the founding has attempted to increase the scope of their power, this behavior took a new form after Woodrow Wilson.

Wilson began by going after one of the most fundamental constitutional guarantees: freedom of expression.

Wilson was able to take advantage of an overly ambitious president’s best friend: war. As FDR’s Attorney General Francis Biddle said, “The constitution has not greatly bothered any wartime president.” Wilson began by going after one of the most fundamental constitutional guarantees: freedom of expression.

After being inaugurated into his second term, Wilson asked Congress to give him the authority to censor the press during times of war, to criminalize the promotion of America’s enemies, and to combat literature that was “of a treasonable or anarchistic nature.” Congress listened and passed the Espionage Act of 1917, which gave Wilson almost everything he asked for except the ability to censor the press. However, just a year later the Espionage Act was amended with the Sedition Act of 1918, which provided for more government surveillance of its citizens and further limited speech that was viewed as detrimental to the government. Wilson finally amassed most of the power he wanted.

Encroaching Power

Franklin D. Roosevelt continued this legacy of expanding executive power during times of distress. In fact, during his first week in office, FDR used the Trading with the Enemy Act of 1917—a law granting the president vast economic powers during times of war or national emergency—to order a “bank holiday” in order to prevent bank runs. This was particularly aggressive because the act did not give him the power to regulate the domestic economy. Since FDR, executive power has continued to expand and grow, increasing more and more under each successive president. Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush Sr., Clinton, Bush Jr., Obama, and Trump have each used and built upon the powers seized by their predecessors.

We now live in a world where a single individual can dictate the behavior of a country. Is that the world you want to live in?

The Founders were afraid of this exact scenario. James Madison, often referred to as the “Father of the Constitution,” wrote that power “is of an encroaching nature” and thought “it ought to be effectually restrained from passive the limits assigned to it.” To combat this tendency, he created a system of checks and balances where each branch has significant authority over their domain and can limit the power of the other branches. Or, in the words of the great modern philosopher Kanye West, “No one man should have all that power.” However, Madison did not predict that branches would delegate their power to the extent they have with legislation like the Espionage Act or the International Emergency Economic Powers Act.

Because of power delegations like these and the normalization of executive overreach, we now live in a world where a single individual can substantially affect the economic activity of an entire nation and where the whims of one man can dictate the behavior of a country. Is that the world you want to live in?

  • Trace Mitchell is a Research Assistant with the Liberty and Law Center at George Mason University and a JD candidate at the George Mason University, Antonin Scalia Law School. He is also a Young Voices contributor, and his work has appeared in the Hill, RealClearPolicy, American Banker, Chicago Tribune, and various other publications nationwide.