Trump’s actions are forcing us into uncharted constitutional waters.
- By Benjamin WittesBenjamin Wittes is editor in chief of Lawfare.
“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 Guantánamo 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. And, of course, it would be by forcing the firing of special counsel Robert Mueller that Trump might ultimately threaten the Russia investigation. The power to hire law enforcement officers who will act in his personal interests is certainly corrupt, but it’s a corrupt use of an undisputed authority.
Nor is there any serious debate over the president’s power to direct his administration to take action based on bad information and no coherent process. No language within the Constitution requires Trump to follow a process of any kind before directing the executive branch in some course of action or another. Rather, it gives him the authority to require written opinions from his cabinet officers on subjects related to their duties. If he wants to circumvent them before issuing fateful executive orders, he gets to do that.
Even the president’s power to spill highly classified information to foreign adversaries is pretty clearly established. The Constitution makes clear that “he shall receive Ambassadors and other public Ministers.” And the elaborate system of classification of national security information is almost entirely a creature of executive orders designed to protect the information the president chooses to protect. So if he wants to receive ambassadors in the Oval Office and blow secrets to them there, well, they’re Trump’s secrets to blow.
And, of course, the president’s authority to speak his mind, including on Twitter, is likewise beyond any serious question. Many of the abuses of authority in which Trump has engaged have taken the form of tweets — from maligning people in a fashion that would almost certainly be legally actionable were Trump not president to announcing new military policies on transgender service members without first establishing an official change in procedure.
But the president has the right to say what he wants. In fact, the Constitution actually requires that he “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” It doesn’t specify that he should do so in a speech rather than, say, in a tweet.
The paradox here is that this most abusive of presidents is engaging in his abuses without needing to make robust assertions of executive power. And this suggests that we may have spent too much energy policing the marginal powers of the presidency relative to the energy we have spent policing its discretionary core.
Trump is forcing us to confront the question of what minimum standards, if any, Congress — which has the power to impeach and remove the president — should demand of a president in the exercise of the central discretionary judgments associated with the office. That is, he’s forcing us to think about the true meaning of the obligation to “take Care that the Laws be faithfully executed” by a person who has taken an oath to “faithfully execute the Office of President of the United States” and “preserve, protect and defend the Constitution of the United States.” After more than two centuries and 44 presidents, these remain strangely uncharted constitutional waters.
This article originally appeared in the September/October 2017 issue of FP magazine.
Illustration by Matthew Hollister