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Presidential Power

Wednesday, February 8th, 2017

Gary J. Schmitt

January 27, 2017 | The Weekly Standard

More than a few commentators have analogized Donald Trump’s election to that of Andrew Jackson: anti-establishment, populist, and rooted in a grassroots anger against existing Washington ways and policies. And more than a few commentators have called Donald Trump’s tweets and media blasts a modern-day version of Theodore Roosevelt’s bully pulpit: a way to call out corporations and business elites for serving their own narrow interests over the broader ones of the nation.

What we have not seen is a Donald Trump who seems all that familiar with the constitutional “powers and duties” of an office he has now sworn to “faithfully execute.” On the one occasion during the campaign he was asked directly about a constitutional issue—his willingness as president to defer to Congress’s Article I prerogatives—his answer was a bollixed muddle that included a defense of an article that doesn’t even exist. Indeed, only a few minutes after taking it, the new president declared that “the oath of office I take today is an oath of allegiance to all Americans,” rather than, as the oath itself has it, a pledge to “preserve, protect and defend the Constitution of the United States.”

Taken together, it appears that Donald Trump’s tenure may well be headed towards what critics will call an “imperial presidency,” that is, a presidency in which the administration acts as though the formalities of the law can be stretched or even ignored in the name of accomplishing a perceived larger public good. The criticism will not be new. Both George W. Bush’s and Barack Obama’s presidencies were labeled as such.

That successive presidents of both parties have been charged with “imperial” overreach suggests that it has become a part of the everyday tool of partisanship. However, it also suggests that something more permanent now exists in our political system that lends itself to presidents acting in a manner that opens the door to the accusation.

The first and most obvious element is America’s role in the world. As Alexis de Tocqueville noted long ago, the president’s power in comparison with that of the monarchs of Europe can appear weak, but the reason for this lies “more in circumstances than laws.” It is in foreign affairs that “the executive power of a nation finds occasion to deploy its skill and force.” A global power such as the United States will inevitably require a chief executive to wield expansive discretion on the world stage and especially so when at war.

Next, the expansion of the federal government and the regulatory state cannot help but lead to the expansion of the executive authority, as it administers the vast array of laws and mandates that now constitute American government. Even a president who wishes to clear the books of the thousands of regulations and policy directives issued by his predecessor will have to exercise his executive scythe in a manner governed by his own reading of the law and his own policy preferences.

And, of course, every president these days thinks he’s acting in the name of the people, with a mandate to fundamentally change this or that about the country. In the process, he makes too little of the fact that his actual power rests on the Constitution, not popular vote, and that, unlike the legislatures in parliamentary systems, congressional majorities have wills and minds of their own. Schooled by Woodrow Wilson to believe that a president is “the only national voice in affairs” and “if he rightly interpret the national thought and boldly insist upon it, he is irresistible,” modern presidents habitually promise too much and then face the need to expand their reach to try to accomplish those lofty goals.

These underlying facts of American political life are not likely to change anytime soon, if ever. The power of the presidency, moreover, was never intended to be minimal. Within a decade of the revolution, the founding generation had overcome their fears of anything smacking of monarchical authority. They saw, in the absence of independent, unitary executive authorities at both the state and national levels, shoddy governance when it came to domestic and national security affairs. America’s first constitution, the Articles of Confederation, did not have a separate executive branch, and the Constitution, in adopting a system of separated powers, intended to free up executive capabilities more than limit them. Accordingly, George Washington, the first president, was quick to assert the office’s primacy in foreign affairs, control over the executive departments, and, with the “State of the Union” address, leadership in setting out the policy issues of the day that he believed needed to be addressed by the government.

In sum, by virtue of both its design and evolution, the presidency has taken on expansive powers. As a result, it’s not always easy to draw the correct line between the legitimate exercise of executive authority and its abuse. But it’s an issue almost guaranteed to arise given the new president’s stated agenda and his executive style. Democrats will be looking early and often for any perceived abuse of office. The more difficult task will be across the aisle. Republicans in Congress will want to push back against those charges as undoubtedly partisan and will sometimes agree with the policy ends being pursued by the president but, at the same time, have their own oaths to “support and defend the Constitution.” One suspects the next four years will not be easy ones for those who take their oath seriously.

Gary Schmitt is director of AEI’s Program on American Citizenship.

AEI