On his first day in office, President Donald Trump signed an executive order effectively suspending enforcement of the Affordable Care Act’s individual mandate. The provision, requiring all Americans to purchase health insurance or pay a penalty, was the eye of a seven-year partisan maelstrom over Obamacare.
Conservatives argued the Constitution gave Congress no power to order Americans to buy insurance; liberals trusted in the infinite stretch of the commerce clause. John Roberts’ Supreme Court split the difference, upholding the mandate under Congress’ taxing power, not the commerce clause.
Yet little of that counts for anything. In the contemporary American system of government—in contrast to the one set up by the Founders in the actual Constitution—the final say is with the chief executive. The president can lay aside years of procedural wrangling in Congress and multiple Supreme Court rulings because he now has the power to simply choose which laws to enforce and which to ignore.
Trump can justify his move with precedent from the Obama administration. More importantly, and troublingly, he can claim that he is simply doing what the people want and the complicated machinery of government has failed to do: it is his unilateral action, not the difficult and often frustrating procedures of representation and litigation, that reflects the true will of the people.
Conservatives will not defend a law they spent most of the last presidency trying to dismantle. Trump’s base will not care—perhaps do not understand—the checks and balances at stake. This is how, in the name of empowering the people, the president undermines the best safeguards of their liberty: this is how populism undermines republican government.
The Ever-Expanding Power of the Executive Branch
Trump has ample precedent to build on. Even The New York Times noted Barack Obama’s sweeping and nearly unprecedented reliance on executive orders during his presidency, which conservatives rightly criticized. Trump has promised to reverse Obama’s decrees, which is welcome, but Trump is unlikely to reverse Obama’s expansion of the executive power itself. (He signed at least 23 orders in his first month in office). Precedent is a powerful tool, and Trump’s ability to claim that Obama did the same shields him from repercussions for incrementally expanding the scope and reach of executive orders.
An executive order is, technically, just an order from the chief executive to the rest of the executive branch, not a generally applicable law. By itself, an executive order is neither illegal nor an abuse of power. But the executive branch is so massive and the president’s authority so sweeping that if a president mandated, for example, that the departments and agencies may only do business with companies with purple logos, we would suddenly be awash in purple. Trump has already used executive orders to reshape immigration policy, much as Obama did before him.
Trump could use executive orders to reshape the relationship between the private sector and the federal government in ways favorable to his own business interests. More broadly, if Trump aggressively uses federal purchasing power to habituate the private sector to government’s role in corporate governance, he could accelerate the trend towards a corporatist economy in which the private sector acts as an arm of the state rather than an independent realm of activity. This would be a serious erosion of economic freedom, a major bulwark of a free and open society—and it would be perfectly legal.
Executive orders are only the first tool available to a president wishing to wield his pen and phone aggressively. The president can also invoke prosecutorial discretion. The president oversees federal law enforcement and the work of federal prosecutors. By shifting budgets and setting priorities, the president can effectively choose which laws to ignore and which to enforce.
Obama used this power to selectively enforce the law, as when his administration chose to stop defending the Defense of Marriage Act before Obergefell v. Hodges. He also set aside entire categories of people exempt from law, as when he directed the Department of Homeland Security and other agencies to stop deporting millions of illegal immigrants (later struck down by the Supreme Court).
Trump might continue Obama’s abuse of prosecutorial discretion. He could, for example, refuse to prosecute violations of environmental regulations. Civil rights groups are likely to be concerned that the Trump administration will only selectively enforce civil rights, equal opportunity, and anti-discrimination statutes. If his executive order proves insufficient, Trump might not even bother asking Congress to repeal Obamacare: he could use Obama’s newfound executive power of declaring laws he dislikes to be unconstitutional to find the individual mandate is illegal and thus unenforceable.
A Drastic Uptick in Surveillance Power
The foregoing tools—executive orders and prosecutorial discretion—are conventional, even banal, means of asserting sweeping executive power. Even if the Trump administration proves to be more chaotic than authoritarian, the president is likely to continue the drift towards their ever-greater use. But if Trump proves more competent, if he pursues executive power with great efficiency and intentionality, there are means available for empowering his pursuit.
The president commands the world’s most impressive military and intelligence systems. Franklin Roosevelt inaugurated a venerable tradition of using the surveillance state to spy on political opponents, a practice perfected by Lyndon Johnson and Richard Nixon. Reforms since the 1970s helped erect safeguards for civil liberties and limit the president’s legal authority. But the technical capacity of the U.S. government for intelligence, surveillance, and reconnaissance has expanded dramatically since then.
Liberals routinely hyperventilated about what they suspected George W. Bush was doing with his vast powers; conservatives fretted the same under Obama. Those fears were almost certainly overblown, but rightly pointed to the potential for abuse inherent in a system with such awesome power. (Obama commissioned a Review Group to recommend reforms to ensure intelligence collection stays within the bounds of law).
Given the clear potential for abuse, the clear advantages in doing so, and the ample precedent set down by illustrious predecessors, it is simply rational to assume that any president will at least be tempted to use the national security state for personal and partisan purposes.
For a president with Trump’s temperament, such fears are more than a rational assumption. The president would need only a small handful of loyalists willing to circumvent the permanent bureaucracy. Trump’s feud with the intelligence agencies during his first month in office may give him the perfect excuse to clean house and install the loyalists he needs. His plan to appoint Stephen Feinberg, head of a New York investment firm with no government or intelligence experience, to oversee and investigate the agencies is a first step in that direction.
An authoritarian president might not stop with politicized intelligence agencies. The Internal Revenue Service is a powerful bureaucracy with authority to take your money, investigate your finances, and garnish your paycheck. Richard Nixon is the best-known example of a president directing the IRS to punish his political opponents, one of the charges in the articles of impeachment drawn up against him.
Because it is so obviously illegal, presidents have generally avoided Nixonian levels of bluntness, but Obama’s IRS at least wandered uncomfortably close to the line. Trump need only suggest priorities for audits to a compliant Treasury secretary and IRS commissioner. (He might start by finding an IRS commissioner willing to overlook the normal obligation to audit a president’s tax returns.)
Finally, perhaps after many years of eroding the norms of limited government, President Trump might take direct action against the Constitution’s venerable protections for free speech and free press. Again, Trump can build on precedent: Obama prosecuted more people for leaking classified information than did any president in history (which, truthfully, is one of the best things Obama did in eight years).
But the difference between justified prosecutions of leakers to unjustified harassment of the media is very thin, and one Trump might easily overstep. Trump’s well-documented disdain for the media, his explicit threats to “open up the libel laws” to make it easier to sue media outlets for coverage he believes is untruthful, and his characterization of the media as the “opposition party,” and the “enemy of the American People,” suggest he might use whatever tools possible to harass, punish, and pressure the media.
Trump might, for example, use the threat of espionage and libel prosecutions as leverage to pressure media outlets and shape their coverage of other stories. Considering American’s widespread hostility to the media, Trump might feel he has public support on his side.
This Is Why We Need Limited Government
The American presidency has become a wildly inflated office over the course of the past century from precedent laid down by past presidents. Conservatives rightly highlighted the ways Obama’s use of executive power undermined limited government. That power is now in Trump’s hands.
With Trump’s victory, most elected Republican officials are likely to be swept off their feet with the prospects of passing conservative legislation for the first time since 1928 that to compromise with small nuances of constitutional order Trump wants tweaked in exchange.
Speaker Paul Ryan appears to be aware of the danger and reassured Americans during the transition that he and Trump had spoken “extensively” about the Constitution and about checks and balances. Observers should be skeptical of taking such reassurance at face value.
Consider the ample precedent established by Obama and previous presidents for progressively expanding executive power. Couple that with what we know of Trump’s character and temperament; his tendency, so far, to appoint loyalists unlikely to stand up to him; and, finally, a compliant Congress. We have a situation ripe for the further erosion of accountable, limited government in America.