December 19, 2016
Since the election, what’s
been going on with conservatives and Trump populists is not clear.
Conservatives are talking about constitutional conventions and amendments. Given the lack of coherence, it’s hard to know what
populists, or at least Donald Trump, are talking about.
The tyrant usurper: A major complaint from conservatives has been that president Obama has
abused and unconstitutionally applied or expanded executive powers by
unilateral action. One reason for that is, as one observer puts it, Obama was
trying to “circumvent congressional inaction or opposition.” That raises the
narrow question of whether a president facing a hostile congress has a duty to
try to govern via executive action when congress is broken. It also raises the
broad question of what the constitutional scope of executive power actually is.
Maybe Obama wasn’t a usurper at all and had a duty to act in the face of an
AWOL congress.
Given the constitution’s lack
of detail on many matters, including the scope of executive power, the question
cannot be conclusively resolved. Opinions on the various sides will be dictated
mostly by social identity, personal ideology and a personal rational that
supports personal belief. There’s no surprise since that’s the basis for most
political beliefs and the historical record is almost always open to various
interpretations. Put another way, most political beliefs, including ones about
the scope of executive power, are mostly personal and subjective.
The case for the unconstitutional executive: Writing in the Wall Street Journal (December 17-18,
pages C1-C2), Jeffrey Rosen, President and CEO of the non-partisan National
Constitution Center and professor of law at George Washington University (Yale
law school graduate), argues that executive powers “have ballooned far beyondtheir constitutional bounds.” Coming from a bona
fide non-partisan constitutional scholar, that’s a striking claim.
Rosen’s essay, The Over-Inflated Presidency, argues
that the debate centers on whether constitutional executive powers are limited
to what the constitution explicitly authorizes. One interpretation, the
‘conservative’ view, is that executive power is limited to those explicitly
enumerated. The powers include power to command the armed forces, at least in
times of war, if not always, veto of congressional legislation, pardon for
certain offenses, power to convene congress to declare war and power to make executive
appointments and treaties with senate advice and consent.
Another interpretation, the
‘populist’ view as Rosen sees it, is that the president has the authority do
whatever the constitution doesn’t explicitly forbid. Rosen fears that president Trump will have this mind set.
A third view, one that Rosen
doesn’t mention, is a pragmatic, public service-focused view holding that although
executive power is flexible or ill-defined, it falls short of imposing tyranny
as described by some reasonably acceptable conception of presidential power, e.g., no unreasonable or
unnecessary infringement on (i) constitutional personal freedoms, (ii) state
powers and (iii) congressional powers. For the pragmatic view, the devil is in
the details, e.g., what’s the definition of unreasonable and unnecessary? Those
concepts have meanings that vary with the observer’s mind set.
Of course, the conservative
and populist views also have their own devils. The constitution does not say that
the president is limited to only enumerated powers, or that the executive can
do whatever the constitution doesn’t expressly forbid.
Rosen, a believer in the
conservative narrow scope vision of presidential power makes the following
observations. They illustrate the practical difficulty in attempts to
definitively define constitutional limits on executive power.
Rosen points out that since
the constitution doesn’t specify if the president has powers beyond what was
enumerated, “it fell to George Washington to fill in some of the
gaps—establishing, for example, the president’s power to recognize foreign
governments . . . .” That’s an explicit statement that executive powers include
at least some matters the constitution is silent about.
There’s nothing surprising
about the existence of “gaps” in the constitution because the constitution
would have to specify every possible act a president would need to undertake,
which is an impossible task. President Washington ran into the limits of
express powers regarding the constitutionality of chartering a national bank.
That led to the birth of the concept of constitutional flexibility and that
some powers are implied to exist because they are necessary and proper for the normal
functioning of government. The courts continue to recognize implied powers (https://en.wikipedia.org/wiki/Implied_powers)
that are not explicitly named in the constitution.
Rosen argues that Franklin D.
Roosevelt “exercised extraordinary powers across many domains: detaining
Japanese Americans in California prison camps, trying and executing accused
Nazi saboteurs, disregarding U.S. neutrality by implementing the Lend-Lease
program and ultimately constructing the New Deal administrative state. He did
all of this, it should be noted, with the tacit or explicit approval of
Congress and the Supreme Court.”
That raises the question of
why neither congress nor the courts acted at the time of FDR and any time
thereafter to restrain executive actions that are far beyond constitutional
bounds. If some of what FDR did was blatantly unconstitutional, why do most or
all of his illegal actions still stand today? The situation makes no sense,
unless one assumes that what FDR did was arguably within the scope of executive
power.
Alternatively, one could
argue that once an illegal executive action has been taken and not timely
challenged, it becomes legal by default of the legislative and judicial
branches. There’s no constitutional or logical basis to believe the latter
option applies, so the former best explains the situation. Even today in 2016, congress
or the federal courts could repeal or strike down FDR’s illegal acts if they
were in fact illegal.
When congress is AWOL: We are in a time when congress doesn’t function properly.
Partisan disputes have displaced regular debate, compromise and legislating.
Maybe that will change when the new congress convenes in 2017. Maybe it won’t.
Regardless, president Obama had to work with a hostile congress that has not
functioned normally at least since republicans took control of the House after
the 2010 elections. Under the circumstances, should the scope of presidential
power be as the conservative view sees it even if congress is dysfunctional?
Two fundamental problems: The constitution could have included language specifying
that the president either had powers not otherwise reserved to the other
branches of government, the states or the people. It could have stated the
president had no powers beyond those enumerated. Instead, the constitution is simply
silent.
Given the long history and continued
judicial and congressional acceptance of some flexibility over the scope of
presidential powers, it’s reasonable to believe that the president has some powers
that are not enumerated and those powers can include ones far beyond the
constitutional bounds that some experts like Rosen see. If nothing else, that’s
how American politics have in fact operated under the constitution. That alone
should count for something.
A second problem is that
arguments for a scope of presidential power limited to the enumerated powers
plus some “gaps” are rarely or never accompanied by any vision of what needs to
be changed, how that would be done and what effects on the American people that
would likely impose. Rosen’s criticism is no
different. He gives no vision for how government would work differently and why
or how that would be better.
