Rethinking #NeverTrump: How A Trump Presidency Could Result In Limited Executive Power

Jerry Rogers and Andrew Langer Vice President, President, Institute for Liberty
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In a little-known 1992 Supreme Court decision, New York v. United States, Justice Sandra Day O’Connor laid out what should be considered the essence of our republic.  “The Constitution,” she wrote, “protects us from our best intentions:  It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”

With just days to go in the 2016 Presidential election, we think it’s important to underscore those principles—because an important opportunity is presenting itself, and it cannot be overlooked.  But this is not a defense of Donald Trump.  Nor is it a direct attack on Hillary Clinton.  What we hope to present is this potentially-overlooked opportunity, giving a justification for voting for Donald Trump that those passionate about limited-government might want to consider.

The greatest discomfort that detractors of both major candidates feel is how the records of these candidates indicate how they might handle the enormous power the executive branch wields.  For both camps—for the #NeverTrump-ers, the #NeverHillary-ers, and those who are showing disdain for both, the record of “accomplishment” of each candidate is, frankly, scary.

Which is why the Constitution was created in the way that it was.  Justice O’Connor went on to say that, “Federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”  But that power has to be diffused—and we’ve seen what happens over two successive presidential administrations when that power is concentrated.  It can be (and is) abused.

Those standing in opposition to both major candidates are right to be concerned.  Given the precedents set by this administration in using executive branch power to attack opposition groups, such power in the hands of either Clinton or Trump is of deep and abiding concern.  In fact, in the last eight years, we’ve warned repeatedly that people at all points on the political spectrum needed to be concerned about how presidential power was being wielded… initiatives like Operation Choke Point, which the House of Representatives concluded was being used to attack businesses with which the administration had an ideological animus set a precedent that could be used by a big-government conservative administration to attack progressive interests.

The problem, of course, is that the legislative branch has, over the last several decades, ceded a tremendous amount of ground to the executive—passing vague pieces of legislation, offering limited or tepid oversight of agency operations, and using the “power of the purse” in a very narrow range of circumstances.  This is compounded by a legal framework in which agencies are allowed to interpret the meaning of legislative language, and are given “deference” that interpretation.

In everyday life, it means, for instance, that an expansive definition of what constitutes “fraud” can be used to attack or silence political opponents.

But where is the silver lining in all this?  Where is the solution for those yearning for a return to the principles of federalism, checks and balances, and the separation of powers?  The answer lies, potentially, in voting for Donald Trump.

Again, this is not cheerleading.  What it is, put simply, is a recognition of two very different (and competing) political landscapes depending on which candidate is elected President.

Either major candidate, should he or she be elected, enters the presidency damaged, with massive amounts of distrust from their political opposition.  But whereas Sec. Clinton engenders, really, only the distrust of Republicans (and a handful of so-called progressives), Mr. Trump will enter the presidency with massive distrust from a much-wider cross-section of his colleagues in Congress (in both houses).

And therein lies the silver lining…  with Republicans, from leadership on downward, deeply concerned with the manner with which Donald Trump will execute his presidency, there is an opportunity for these Republicans to exert enormous pressure on the executive branch to rein in that branch’s power.  Moreover, with Democrats nearly-united in opposition to Trump, there is even more of an opportunity to achieve what those distrustful of the unitary executive and executive branch overreach have been trying to do for nearly two decades:  meaningful reform and reduction in the power of the President and his appointees—clear legislative language that prescribes precisely how laws are to be implemented, authoritative oversight of agency operations, and a real willingness to use budgetary tools to push back against executive branch mischief.

Unfortunately, the same cannot be said for the interplay between Congress and a Clinton presidency.  Should Republicans maintain control of Congress and Sec. Clinton gets elected president, the GOP cannot count on Democrats to work to rein executive branch power.  And should the GOP lose control of Congress in 2016 or 2018, with a Clinton presidency we would see the same wholesale abrogation of responsibility that brought the American people massive expansions of executive branch power under Presidents George W. Bush (from 2001-2007) and Barack Obama (from 2009-2011).

It is a mind-boggling concept—the idea that choosing Donald Trump could lead to a fundamental return to the basic constitutional precepts upon which this nation was founded.  But one has to recognize that this would be done in spite of the president—most likely without his support (if not his downright opposition).  But that’s why the founders separated the powers of government, specifically to prevent one branch from getting too powerful, and, in doing so, to protect individual rights.

So yes… it is possible that a vote for Donald Trump could represent a vote for a return to the principles of individual liberty.

Jerry Rogers is Vice President of the Institute for Liberty. Andrew Langer is President of the Institute for Liberty. Both host a weekly podcast, the LangerCast, on the RELM Network.