http://www.learnliberty.org/blog/trump-inherits-a-super-powered-presidency/?gclid=CjwKEAiA17LDBRDElqOGq8vR7m8SJAA1AC0_pKDi1suq6oa1F1jHs4psR7ZvKyzHqL9Unod9wN7U2hoCnR3w_wcB
Now
that the Electoral College has made Trump’s 2016 win final, this 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.
This leaves Trump with a presidency more powerful and more unchecked than any in history.
The Growth of Presidential Power
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 tried to create “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
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.
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