Bipartisan Abuse Of Executive Power

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Jim Huffman Dean Emeritus, Lewis & Clark Law School
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After the 9th Circuit Court of Appeals affirmed a lower court’s stay of President Trump’s  travel ban executive order, the president dismissed the ruling as political.  For their part democrats praised the three-judge panel’s unanimous ruling as a principled defense of the constitutional separation of powers and a rebuke of Trump’s abuse of executive authority.

Funny that.  I don’t recall similar democrat praise for the Supreme Court when it unanimously invalidated President Obama’s so-called recess appointments to the National Labor Relations Board or when the 5th Circuit Court of Appeals held that Obama’s Deferred Action for Childhood Arrivals (DACA) executive order was not authorized by statute.

To be clear, I am not defending Trump’s travel ban order.  It is, in my opinion, poorly drafted, clumsily executed and probably overbroad.  But it is generally understood that the president’s authority is at its maximum in matters of foreign affairs.  We will have to await a final judicial ruling on the merits to know whether the executive order falls within the president’s broad foreign affairs authority or violates the limits set forth in the Supreme Court’s 1952 decision in Youngstown Sheet & Tube v. Sawyer.  Until then, the celebrations and condemnations are a bit premature.

What is not premature, however, is recognition that presidents of both parties have abused and will continue to abuse their constitutional authority.  The only constraint is what they can get away with, and it seems each president gets away with a little more.

Whether or not the travel ban is ultimately found to be within the president’s authority, President Trump’s seeming indifference to, if not ignorance of, the limits of executive authority is worrisome.  But President Obama was not shy about declaring that he had a phone and a pen and that if Congress would not act, he would.  The difference between them is less one of executive ambition than of personal style.  Obama is, for the most part, disciplined and decorous.  Trump is a bull in a china shop.

What should concern us far more than the contrasting personal styles or even policy ambitions of presidents Trump and Obama is the steady expansion of executive power almost from the founding of the republic.  That this has occurred would disappoint, though not surprise, those who wrote our constitution.  In Federalist 15 Alexander Hamilton observed that “there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations.”  “It has its origin in the love of power” wrote Hamilton. “Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged.”

For the Founders it was a given that presidents and others wielding the coercive powers of government would seek to expand their powers.  Under the constitution the Founders designed, it falls to the other branches of government to resist.  Not in the way democrats in congress have now constituted themselves as the “resistance” to Trump the man – but in the assertion and exercise of their own constitutional powers.  The constitutional separation of powers is not self-enforcing.  Voids of neglect, caution or fear will be filled by the executive, just as executive abdication of duty invites legislative and judicial expansion.

Critics of the 9th Circuit’s ruling argue that it is the court, not the president, which has exceeded its authority.  If so, the 9th Circuit en banc or the Supreme Court will restore the constitutional balance of powers.  But overreach by the president can only be stopped by a congress willing to put partisanship aside in service to its constitutional prerogatives and courts willing to exercise their power of independent judicial review.

Alexander Hamilton was a leading advocate for a strong and energetic executive, but he also understood that the powers of the president are confined to those granted in the constitution or authorized by congress.  He and the other framers of our constitution expected that future presidents, of whatever political persuasion, would claim powers not granted.

The final check on such abuses of executive as well as legislative powers is judicial review.  There is no guarantee that judges, even with life tenure, will put politics and personal bias aside.  But as Hamilton observed in Federalist 81 the “danger of judiciary encroachments” is greatly mitigated by its “comparative weakness” and “its total incapacity to support its usurpations by force.”  Or as Alexander Bickel put it many years later in the title to a book, the judiciary is “the least dangerous branch.”

If there is any cause that should overcome the terrible partisanship that infects our national politics, it is enforcement of the constitutional separation of powers that safeguard against abuses of government power – whether we agree or disagree with the ambitions of the abuser.