Stopping a Rogue Executive from Abusing the Massive Powers of the Presidency

The UnPopulist launches its 'Fireproofing the Presidency' series

(The UnPopulist illustration)

Former president Donald J. Trump represents a unique threat to the stability of the American republic. Presidents have long enjoyed an excess of power that they have often used in unconscionable and unconstitutional ways. Yet Trump’s distinctive combination of narcissism, a singular disregard for the truth, a pronounced persecution complex and the desire for political revenge presents particular challenges—especially given that Trump has not been shy about declaring in multiple venues how he intends to use—or misuse—his powers if he is reelected.

This month, we’ll kick off a series of essays in The UnPopulist, sponsored by Protect Democracy, that over the course of this year will feature legal scholars from across the ideological spectrum who will examine what could reasonably be done to check Trump’s nefarious plans. In the process, we hope to erect permanent guardrails to rein in future presidents tempted to go down the Trumpian path and make presidential powers less extensive and less susceptible to abuse.

Given a polarized country, a divided Congress, and the uncertainty of what will happen to the House and Senate in the forthcoming election, it won’t be easy to enact meaningful reforms. Still, it is vital that we start exploring reasonable options that aren’t political non-starters to prevent Trump from enacting his draconian plans should he once again find himself in the White House. Some of those proposals might merely involve raising awareness through journalism and public advocacy. Others might be to reform existing laws to make them less amenable to abuse or pass new ones. In addition, we could hold congressional hearings, consider strategic litigation and explore constitutional and legal remedies available to states to resist executive arm-twisting.

In this introductory essay, I will give a general overview of the immense scope of the powers that have been placed in the hands of a president and the specific dangers of having Trump wield them for a second time.

Framers’ Fateful Choice

During the 1787 Constitutional Convention, the Framers spent relatively little time on the presidency. Their main focus was on creating the legislative branch and delineating and controlling its powers. The executive branch was discussed as early as June 1st—five days after the Convention’s opening—but not in any great detail. The primary concern was elsewhere. Late into the Convention, they were still debating whether the executive branch should be one person or a committee of people. 

There were a few reasons for this. After declaring independence, many states wrote constitutions that had weak executive branches. Pennsylvania’s constitution of 1776, for example, created a “Supreme Executive Council” with 12 members. The Articles of Confederation did not have a separate executive branch at all. 

Two main things were influencing the debate over the executive branch: one was the tyranny of King George III, which was extensively discussed in the Declaration of Independence. The other was George Washington, who presided over the Convention but would also occasionally leave his chair on the dais to join the Virginia delegation. As the delegates debated the nature of the executive branch, the presence of Washington in the room greatly influenced the discussion. It was almost assumed that Washington would be the first executive. As historian Richard Beeman has written:

[I]t is likely that the debates over the character of the American presidency that whole summer were influenced by the presence of America’s first citizen. Washington’s very reluctance to assume power combined with his unique qualifications as the only man in America who could shape the office of the presidency such that it would prevent others from using it to subvert liberty were crucial factors in guiding the thinking of virtually everyone in the Convention. Had Washington been absent, it is entirely possible that the Framers of the Constitution would have created a multiple executive.

The irony then is that George Washington’s acute self-restraint made the Convention delegates more sanguine about creating a single executive. They were not oblivious to the dangers of populist demagogues in democracies. To the contrary, in fact. Still, the mental image of a Washington-like statesmen using his powers responsibly shaped their perception of how future executives would comport themselves. And, for decades, Washington’s example of integrity and discipline indeed did help define the traditional scope of the office. The presidency is somewhat defined and limited by the Constitution (there’s of course an ongoing debate about what those limits are). For example, the president is charged with the task to “take care” that the laws are faithfully executed, and he/she must seek the Senate’s “advice and consent” on nominations. But the Constitution doesn’t describe all the limits on the presidency because the Framers assumed that the office would be held by principled leaders like Washington who put the country’s interest ahead of their own and who would respect democratic norms and not, for example, baselessly challenge elections or prosecute their political enemies. That turned out to be a miscalculation.

Executive Powers and Abuses

We haven’t always had presidents with integrity. But that doesn’t capture the fundamental problem: each president who decides to push the limits of his or her power creates a new baseline for the misuse of the office by unprincipled actors. Woodrow Wilson used a variety of means to prosecute those who opposed America’s involvement in World War I. Franklin Roosevelt used an executive order to create concentration camps to imprison more than 100,000 people of Japanese ancestry. John F. Kennedy used the IRS and the FCC to shut down “right-wing” radio broadcasters who he thought would be a threat to the country and his reelection. 

But in the general historical consensus, those presidents are considered “good” because they seemed to be using their powers for ends that were considered “good” at that time (well, maybe not JFK in that instance!). Given what purportedly “good” presidents have done with the office, it’s worth considering what a petty and vindictive president would do. Unfortunately, we may learn that lesson if Donald Trump returns to the office.

---

---

The American president is rightfully called the most powerful person in the world. To use a coarse, but nevertheless important, example, Congress has not declared war since World War II, despite the Constitution explicitly and exclusively giving Congress the power to do so. All of the conflicts since World War II—from Korea to Vietnam to both Iraq wars, as well as an untold number of military excursions in foreign countries—have come from the hand of the president, not Congress. Congress has said at times that it authorizes military power, and has given that power to the executive, but that is just another example of Congress willingly reliquinshing its power. It’s hard to estimate the number of foreign casualties from those wars, but they are certainly over a million. The American government is the most powerful institution in the history of the world—the only competitor would be the Catholic Church, which doesn’t have nuclear weapons—and an astounding amount of that power rests in the hands of one man (or one day a woman).

Of course, the sources of some powers—like the power to wage war (or just use drones to attack other nations)—are obvious, but much of the power wielded by the executive has come from more subtle and behind-the-scenes means through a combination of congressional acquiescence and permission. For most of our history, Congress has either willingly given away its power to the presidency or failed to intervene when the presidency encroached on its constitutionally delineated territory. 

Congressional Abdication

While the Framers would be quite shocked by how the federal government operates today, they would be most shocked by how Congress has stopped being a guardian of its own power. The Madisonian framework of separation of powers depends on each branch of government protecting its domain. Of course, these limitations are sometimes breached, but the Framers assumed that the branches would not willingly give away their powers.

Why is that? Members of Congress have figured out that empowering the executive to pass regulations that have the force of law, make war, and enforce laws at his discretion gives them great political ammunition for reelection. On one hand, they can claim credit for executive actions when they agree with the regulations. On the other, they can disclaim any responsibility when the executive branch passes regulations that are unpopular. It’s a political “get out of jail free” card.

Here’s how it works: Congress passes broad and vague laws, like the Clean Air Act that say, essentially, the executive branch shall have the power to pass regulations that clean the air. The Act can be used effectively or ineffectively, but it grants the president great authority to affect the economy and the environment. One president might tighten restrictions, the next might loosen them. Meanwhile, members of Congress may complain, but what they should be really concerned about is their toothlessness even in the face of ham-handed executive action. In the same vein, Congress also passes laws like the 9-11 Authorization for the Use of Military Force, basically giving away its explicit constitutional power to declare war. Since its passage, the president has purportedly been empowered to carry out attacks in foreign countries with basically unlimited discretion. Presidents of both parties have used this power with gusto.

This is how most of American federal “law” is produced, at the behest of the executive branch, as empowered by Congress. For over a decade now, Congress has been locked in a stare-down, both parties looking across the aisle and essentially refusing to compromise at all. For both parties, almost no member ever crosses the aisle. As the Pew Research Center has written: “Both parties have grown more ideologically cohesive. There are now only about two dozen moderate Democrats and Republicans left on Capitol Hill, versus more than 160 in 1971-72.” As a result, Congress is ineffective, and basically no longer passes laws. The president—regardless of party—having been endowed by Congress with incredible powers, has taken the initiative to “make” law himself. In the face of a recalcitrant Congress, presidents seem unable to resist themselves from using—in President Obama’s words—the “pen and phone” to pass sweeping regulations that end up expanding the executive’s province.

The president is the only elected official in the federal government who can claim a nationwide “electoral mandate” (even when they lose the popular vote). And all presidents love to claim broad authorization derived from the election to impose their will on American society. And because Congress seems no longer able to act, presidents feel both frustrated and impelled to do as much as they can get away with. And that’s unfortunately a lot. 

Yet it gets worse. Most scholars agree that the president has almost total power over broad areas of the federal government, regardless of congressional action (or inaction). One is foreign policy, in which some would include immigration law. The president’s dealings with foreign nations are rarely subject to congressional oversight or judicial review. A rare exception was Trump’s first impeachment over his phone call with Ukrainian President Volodymyr Zelenskyy. Yet although Trump was impeached, he was of course acquitted by the Senate. That Trump’s level of political corruption is when Congress will make even a modest gesture toward discipling the president suggests just how much free rein a president has.

---

Trump Is Running for Dictator

---

Federal law enforcement, such as the FBI, is another area where the president enjoys incredible powers. To be fair, Trump has often been more antagonistic to the FBI than other executives. Yet there is every reason to believe that Trump will try to bring the FBI under his control and use it against his political enemies. Congress in the past has not been too concerned about abuses by the FBI, as the entire J. Edgar Hoover era showed. That’s why it will have little leg to stand on if Trump deploys it for his ends now. Still, without congressional action, stopping him will be exceedingly difficult. Litigation and state action might offer promising avenues, but there are no magic bullets.

That’s a brief overview of the current state of executive power that Trump would wield. Now let’s look at Trump’s political agenda.

Trump’s Personal, Partisan, and Persecutory Agenda

Over his political career, Trump has been fairly explicit in his primary political issues—namely limiting immigration and trade. Yet he has added to that an intense dislike of the “deep state” coupled with a sense of persecution in the 2020 election and the numerous prosecutions against him. All of that will influence his policies and actions if he returns to the presidency. 

It’s worth looking at what he has in mind:  

• He has promised to use almost all parts of federal law enforcement to enforce immigration law including the 1798 Alien Enemies Act to initiate the “largest domestic deportation operation in American history.” He would use this Act “immediately" and seemingly indiscriminately against undocumented immigrants. This means that he’d assume they are enemies by virtue of being “aliens” even if they pose no security danger. The Act ostensibly permits only such actions during a declared war or in the event of an “invasion or predatory incursion.” Yet even if the courts ultimately strike down his program, he would do massive damage to civil liberties and thousands of individuals and families in the interim. He has also promised to deport massive numbers of “Hamas sympathizers” here legally in the wake of the Israel-Hamas war. “We’ll get them off our college campuses, out of our cities, and get them the hell out of this country,” he wrote.

• He used the National Emergency Act to declare an “emergency” on the southern border last time and is likely to do it again. 

• He has said he will use the federal government to “root out the communists, Marxists, fascists and the radical left thugs that live like vermin within the confines of our country that lie and steal and cheat on elections.” In other words, he wants to rid America not just of aliens but also internal political enemies, i.e., Americans who oppose him. In his campaign speeches now, he talks incessantly about the “enemy within” against whom he will exact “retribution.” In addition, he has vowed to use the Department of Justice to go after the Biden family, and describes Biden as “the most corrupt president in the history of the United States of America.”

• He has asked for the death penalty against drug smugglers and human traffickers. He has also discussed using aspects of the Department of Defense against drug cartels, including special force operations, in other countries.

• He has threatened to further politicize the Department of Justice against so-called “Marxist” prosecutors who allegedly refuse to prosecute criminals. Trump has continuously said he would send in federal law enforcement to cities to “restore peace and public safety.” He has also said he would deploy the National Guard to cities that “refuse to act” on public safety. 

• He has said he would either close the Department of Education—or weaponize its funding structure against Critical Race Theory and gender ideology while ridding it of “Marxists.”

• He has also said he would remove “rogue” bureaucrats via an executive order.

• He wants to reclassify tens of thousands of federal employees under his “Schedule F” executive order. This would make it easier for him to reconstruct the federal workforce with loyalists willing to act on his designs, eroding an important check on executive abuse.

• He would use his pardon power to forgive the sentences of those who he claims have been “unjustly persecuted by the Biden administration,” meaning particularly Jan. 6 rioters.

• He has suggested that the Insurrection Act could authorize him to enlist the military to quell domestic violence. 

This is just a short list.

In his first term, Trump was somewhat restrained by staffers and cabinet members who believed in the Constitution and the importance of maintaining the integrity of the executive. Now, a stunning number of his formerly proclaimed “best people”—those who held some of the highest non-elected offices in the country—have come out against him. This is not just about policy disagreements. The people who worked closest with him—such as his former chief of staff John Kelly—have repeatedly said that they think Trump is unfit for the office of the presidency. Kelly has described Trump as someone who “has no idea what America stands for and has no idea what America is all about.”

Trump’s pathological indifference to democratic norms makes him particularly dangerous in the Oval Office. But the vast powers that the executive has come to wield in America need to be fundamentally rethought or this is not the last time this country will confront a figure like Trump. In the forthcoming essays, we will propose practical ways to erect guardrails around these powers but also scale them back to not only thwart Trump’s—but any future executive’s—abuses.

© The UnPopulist, 2024