Adler: Reassessing presidential power and constitutional limits in Trump 2.0
The Framers’ conception of the American presidency – its central functions, powers and limits – has faded across the decades as presidents of both parties – Democrats and Republicans, liberals and conservatives – have expanded the frontiers of executive power, but these acts of aggrandizement have occurred, chiefly, in the realm of foreign affairs and national security.
Indeed, the dawn of the Imperial Presidency reflected usurpation of the war power and the foreign relations powers vested by the Constitution in Congress. The constitutional arrangement for the conduct of domestic affairs, with few exceptions, has remained intact. Scholars have warned of further dangers to the Republic if the tendencies of the Imperial Presidency evolved to displace the constitutional dominance of Congress in the domestic arena.
That day, it seems, is here. President Donald Trump’s blizzard of executive orders in the first two weeks of his second term has subordinated congressional powers in his zeal to remake the federal government, fire career attorneys at the Department of Justice, fire civil servants at the FBI, freeze spending, hand over to Elon Musk the nation’s checkbook, with the potential to start and stop governmental payments and, among other acts, remove officials of independent agencies in defiance of the Civil Service rules and laws enacted by Congress in the 19th and 20th centuries. Diminishing Congress by concentrating power in the executive deranges the separation of powers and recalls James Madison’s admonition that in a Republic, “the legislature must predominate.”
Nobody disputes the right of a newly minted president to remove political appointees from the previous administration and replace them with those who share his ideology and policy preference, as well as the right to recommend redirection of departmental objectives, priorities and spending. Those are the fruits of victory.
Until now, however, it has been understood that executive orders do not replace laws, that Congress, alone, under Article I, Section 9 of the Constitution, has the power of the purse, and that the executive branch may not shutter agencies created, shaped and funded but Congress.
The question, at this juncture, is whether American law fences in the American presidency? To what extent this remains a rhetorical question depends on the disposition of Congress, forthcoming judicial decisions in response to Trump’s executive orders and public opinion.
The acid test of a Republic is whether a president can withstand the opposition of that constitutional triangle. We are witness to the transformation of democracy by executive order and decree. For their part, the Framers believed that the maintenance of the Republic required three foundational constitutional powers to remain in the hands of the legislature: the war power, the appropriations power and the lawmaking power. Those powers are slipping from the grasp of Congress.
To be fair, dissenting voices across the decades have sounded alarms as presidents aggrandized congressional powers, despite criticisms that they failed to comprehend changing international circumstances that “compelled” executive dominance over foreign relations and national security. In the wake of Vietnam, Watergate, Iran-Contra and the Iraq War, those persistent voices gained traction as they exposed the shortcomings, frailties and misjudgments inherent in the acts of presidential unilateralism that have imperiled the nation.
Nobody knows for sure whether dramatic changes in governance over foreign or domestic affairs will turn out to be wise. But one of the consistent virtues in the founding generation’s intellectual approach to the drafting of the Constitution that should resonate in our time, whether in its inclusion of enumeration of powers, separation of powers and checks and balances, was the commitment to the cardinal principle of republican ideology: the conjoined wisdom of the many is superior to that of one.
Collective decision making, discussion and debate across branches of government was a favored process, precisely because it engaged the views and values of representatives from across the nation, and served to expose the infirmities in purportedly superior policies.
President Trump, like any president, would do well to remember this foundational wisdom and engage Congress in consultation and planning. Congress might well support every one of his recommendations which, in the scheme of things, would make them stronger for having survived the scrutiny of those who represent the will of the people.
Discussion and debate are distinctive methods of free governance that have effectively served America for nearly 250 years. That method is superior to government by executive decree.
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.