So Donald Trump is president. But nervous progressives shouldn’t worry. The Constitution contains road blocks to mitigate any danger posed by a Trump presidency.
Unfortunately, these safety measures have been substantially chipped away across multiple presidential administrations. We’ll need a substantial change in thinking about the proper power of the presidency to restore these checks and balances.
This Is Why Separation of Powers Is So Important
Let’s take a step back to 8th grade civics. You may recall a discussion on separation of powers. The basic premise is simple: Congress makes the law, the president executes it, and the court interprets it and decides on its constitutionality. (This is extremely oversimplified: it leaves out millions of dollars spent on lobbyists.)
Thomas Jefferson warned against the perils of concentrating power in a single branch: “concentrating [the powers of the executive, legislative, and judiciary] in the same hands is precisely the definition of despotic government,” he wrote. Checks and balances are in place to ensure no one branch of government becomes too powerful (say, through implementing the policies of President Trump without Congress voting on it).
In the United States, separation of powers has greatly eroded over time through 1) increased use of executive orders, and 2) increased deferment to the executive on foreign policy matters. If we are going to preserve our liberty in the face of President Trump, we must roll back this executive aggrandizement.
Limiting Executive Orders Can Stop President Trump’s Overreach
Executive orders are simple. The president issues a decree which has the force of law. But it is the legislature’s job to write laws. Did you know that all presidents from George Washington through Andrew Johnson issued a total of 270 executive orders? Barack Obama, to date, has issued 260 Executive Orders. (To be clear, this is nowhere near the high point for executive orders. FDR issued a whopping 3,721 Executive Orders in his 12+ years in office.)
Some of Obama’s orders are inside the appropriate sphere of presidential power; but what are the proper bounds?
In 1951, President Truman, without Congressional authorization, tried to nationalize the steel industry to break up a strike. As you can imagine, the Supreme Court struck this down. As you can further guess, they struck it down 6-3. But don’t worry—they left us with six(!) different opinions explaining why it wasn’t okay for the president to do this.
A president has authority to issue orders where authorized by Congress or by some provision in the Constitution. The president could not unilaterally nationalize the steel industry because he is no lawmaker. The decision to nationalize was “for the Nation’s lawmakers, not for its military authorities.” (343 U.S. 579, 585 (1952)) The president executes the law. He does not make the law.
This leads us to the first limit on President Trump: executive orders are only proper where they “direct that a congressional policy be executed in a manner prescribed by Congress.” The president does not have the power enact wholesale changes in domestic policy without Congress’s say.
Putting the above into practice, President Trump would not be able to wholesale remake our nation’s immigration system via executive orders. Members of Trump’s transition team have already expressed their desire for him to use executive orders to begin constructing the Huuugge Wall of America™ and to create a Muslim registry. At minimum, President Trump needs Congressional authorization to enact those policies—which is to say nothing about their ultimate Constitutionality or sensibility.
The flip side to stopping President Trump is that no president can use executive orders to wholesale rewrite domestic policy. It was therefore improper for President Obama to bypass Congress in implementing DACA. Yes, you may wholeheartedly agree with that policy, and wish the Supreme Court upheld its Constitutionality. But the price of your desired policy and an efficient system is far too high to give President Trump (or any president) such power.
The President Should Not Have The Power to Declare War
Under the Constitution, the president has broad powers in the realm of foreign affairs. But Congress must act as a check where appropriate. The Constitution expressly gives the power to declare war to Congress. Remarkably, there has been no formal declaration of war since World War II; Congress has totally acquiesced its responsibility to the Executive.
It is important for the power to declare war to reside with Congress, not the President. As Alexander Hamilton noted, this division of power distinguishes the president from having the powers of a king: a necessary distinction for ratifying the Constitution. The effect of a declaration of war is the “repealing [of] all the laws operating in a state of peace, so far as they are inconsistent with a state of war.” This separation of power between those who conduct war and those who decide when war “ought to be commenced, continued, or concluded” is a “great principle” of free government, needed to prevent tyranny.
In 1973, Congress took a step to reassert its power over war by passing the War Powers Resolution. The War Powers Resolution boils down to two main requirements: the President must consult with Congress before sending American Armed Forces into armed conflict, and the Presidential deployment of military force must cease after 60 days barring Congressional approval.
This leads us to a second limit on President Trump: Congress must rely on the Constitution and the War Powers Resolution to limit his ability to deploy our military.
By restoring Congressional authority over war, President Trump would not be allowed to unilaterally deploy American Armed Forces without limit. Congress shouldn’t be afraid to go to court to fight for this important principle of limited government.
This would mean no president could unilaterally deploy the Armed Forces without limit. President Obama’s actions against ISIS in Syria must also comply with the War Powers Resolution. U.S. action in Syria began in September of 2014. Since there has been no Congressional approval for continued military action, further combat must stop until Congress authorizes it.
This Isn’t About Republican Or Democratic Control
You may be wondering why any of this matters. Republicans control both houses of Congress, and can support President Trump’s agenda. But this view ignores a few points.
First, the midterm elections are just two years away. Congress must answer to the electorate more quickly than President Trump will. And accordingly, it has less incentive to buck the electorate’s wishes and Constitutional requirements.
Second, despite President Trump’s claims, Republicans are not unified. Nearly a dozen Republican Senators did not support Mr. Trump in the presidential election. It only takes three of them to flip sides and join 48 Senate Democrats to stop President Trump’s legislation.
Finally, in areas where Republicans are lock step with President Trump in implementing problematic legislation, Senate Democrats can and should filibuster to stop the legislation. A filibuster is a valuable tool to ensure broad bipartisan support of legislation.
We Should Heed Jefferson’s Warning About Government Power
Our current government is too easily dominated by the executive branch. Separation of Powers diffuses this control across multiple branches, so that it cannot be dominated by one dangerous individual.
As Thomas Jefferson prophetically warned,
Nor should our assembly be deluded by the integrity of their own purposes, and conclude that these unlimited powers will never be abused, because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when corruption in this, as in the country from which we derive our origin, will have seized the heads of government, and be spread by them through the body of the people; when they will purchase the voices of the people, and make them pay the price.
The time President Jefferson warned of approaches. This delusion of integrity of purpose has clouded our need for a limited government for too long. The first step to protecting our liberty is restoring the separation of powers.
