Magazine article Foreign Policy

The Disturbing Paradox of Presidential Power: Trump's Actions Are Forcing Us into Uncharted Constitutional Waters

Magazine article Foreign Policy

The Disturbing Paradox of Presidential Power: Trump's Actions Are Forcing Us into Uncharted Constitutional Waters

Article excerpt

"THE EXECUTIVE POWER shall be vested in a President of the United States of America."--Article II, Section 1, U.S. Constitution Debates over executive authority generally take place at the margins of the president's powers. Our collective understanding of the limits of executive power flows from an iterative process: Presidents test the boundaries of their authority and either successfully expand those boundaries in the process or get batted back by other branches of government. Other branches encroach on presidential authority and either get away with it--and thereby narrow the president's power--or not.

Our understanding of the boundaries of presidential authority flows from Abraham Lincoln suspending habeas corpus on his own and then going to Congress for ratification. It flows from Harry Truman trying to seize the steel mills and having the Supreme Court block him. It flows from presidents over time going to war on their own authority and Congress letting it happen.

Two centuries of experience with this approach to defining the parameters of the presidency have taught us that a certain vigilance in policing the outer bounds of presidential power is necessary--particularly when those outer bounds involve the coercive authorities of the office. So when a man who wears his propensity to abuse power on his sleeve was elected president last November, many commentators and critics instinctively knew to treat his enthusiastic remarks in favor of torture and certain war crimes as potentially more than mere words. They knew, without being told, to be concerned about the possibility of intelligence abuses. They worried about what he might do with drones. They worried about which "bad dudes" he might bring to Guantanamo Bay.

Eight months of Donald Trump's administration, however, suggest that--for this president, anyway--our collective anxiety has been at least somewhat misplaced. Trump's presidency has been abusive in the extreme, but the authorities he is abusing do not lie at the margins of presidential power. They lie at its core. And they thus raise a different question from the one we have taught ourselves over the centuries to ask.

Consider that since Trump has taken office, the fights over the major issues of presidential power that have divided Americans since 9/11 have largely disappeared from view. There's a reason for that. For all the fretting about Trump's noxious comments on torture, interrogation policy hasn't changed. Neither has detention policy--at least not yet. The authorities of the intelligence agencies to collect and process information have not increased under this administration. And, ironically, the person most vocal in complaining about alleged intelligence abuses has been Trump himself, whose complaints of illegality on the part of the intelligence community--from his predecessor "wiretapping" him to his gripes about "unmasking"--few commentators other than his core loyalists have taken seriously.

Trump's abuses, rather, have almost uniformly occurred in areas where the president's power is not contested, areas at the very heart of what the Constitution calls "the executive Power."

Few serious constitutional scholars, after all, doubt the president's power to "appoint ... Officers of the United States"--and thus to remove them. This is what Trump did to FBI Director James Comey. It is also what his tweets and interviews portend with respect to Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein. …

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