Tag: executive power

Ambiguities in U.S. Trade Laws Imperil Our Economy and Constitutional Order

In yesterday’s Investor’s Business Daily, Club for Growth President David McIntosh and I had a short piece on the perilous implications of President-elect Trump’s threats to unilaterally withdraw the United States from our trade agreements or impose punitive and wide-ranging tariffs on imports. The economic effects of Trump’s promises have been explored at length (see, e.g., this new one on NAFTA and Texas), but most trade law experts are just now digesting the legal issues. What we’re finding is, to use the technical term, a big mess that could have unforeseen economic and constitutional implications in the Age of Trump. As we note:

For almost a century, American trade policy has been formed and implemented by a successful “gentlemen’s agreement” between Congress and the president. Congress delegated to the president some of its Article I, Section 8 powers to “regulate Commerce with foreign nations” so that the president may efficiently execute our domestic trade laws. The president negotiates and signs FTAs with foreign countries, while Congress retains the ultimate constitutional authority over international trade, for example by approving or rejecting agreements or by amending US trade laws.

As a result of this compromise, the United States has entered into 14 Free Trade Agreements with 20 different countries and imposed targeted unilateral trade relief measures — all without significant conflict between Congress and the President.

The question now is whether Mr. Trump, as president, could and should single-handedly implement his trade agenda on Jan. 20, 2017 without any congressional action.

The IBD op-ed scratches the surface of these legal issues, but below are more details on just a few of the many ambiguities lurking in U.S. trade law—ambiguities that, if not properly clarified, could be exploited by a protectionist U.S. president against the original intent of the Congress that delegated their constitutional authority over trade policy under the (incorrect!) assumption that the president would always be the U.S. government’s biggest proponent of free trade.

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Let’s Build a New Consensus to Restrain Executive Power

It happened.

Don’t worry, our country is strong enough to deal with what might be coming. Unfortunately, however, our Constitution has some holes in it, many of which were created by the last two administrations, that allow presidents to assert shockingly broad powers. We will gladly welcome back to the fold our left-wing friends who have spent eight years cheering for executive power. They resisted executive power during the Bush administration, and it should be like riding a bike. We hope we will be joined by principled people on the right who understand the need for constitutional limits. Maybe, in the process, we can create a new consensus around limiting executive power.

Constitutionally limited government exists to protect the freedom of the citizens from the vicissitudes of democratic rule. The Framers of the Constitution knew that a person of George Washington’s caliber would not always be chosen president. They knew about demagoguery and populism. James Madison, in particular, was terrified of how voters in states could be swept up in waves of populist fury and, in the process, enact policies damaging to the long-term prosperity and freedom of the people.

Unfortunately, after a century or more of erosion, our Constitution doesn’t limit our government the way it once did. In particular, the president is incredibly powerful, and able to make significant decisions without proper checks and balances. Democrats wanted this power when President Obama was in office, but the powers of the executive, especially after President Obama, are now truly concerning when held by someone as unpredictable as Donald J. Trump.

Here’s a basic principle of good government: Don’t endorse a government power that you wouldn’t want wielded by your worst political enemy. Democrats will soon be learning that painful lesson.

Donald Trump and the Gift of Fear

The prospect of Donald Trump as president is only slightly less ridiculous than the idea of Charlie Sheen with nukes—and possibly more frightening. And yet, it looks as though the verbally incontinent celebreality billionaire has a one in three chance of being elected come Tuesday. 

Terrifying, yes, but fear can be useful. In this case, it ought to concentrate the mind wonderfully: if someone so manifestly unfit, so transparently likely to abuse power, can come within striking distance of the presidency, then maybe it was a bad idea to concentrate so much power in the Oval Office in the first place.    

It’s no secret that the “most powerful office in the world” grew even more powerful in the Bush-Obama years. Both presidents stretched the 2001 Authorization for the Use of Military Force into a wholesale delegation of congressional war powers broad enough to underwrite open-ended, globe-spanning war. Bush began—and Obama continued—the host of secret dragnet surveillance programs revealed by Edward Snowden—and others we’re still largely the dark about. And lately, on the home front, Obama has used the power of the pen to rewrite broad swathes of American law and spend billions of dollars Congress never appropriated. 

America’s center-left papers of record have lately begun to notice that the vast powers recent presidents have forged would be available to Trump as well. The New York Times’s Carl Hulse writes that Obama’s assertion of a presidential power of the purse could have ”huge consequences for our constitutional democracy…. How would lawmakers react if a willful new chief executive, unable to win money from Congress for a wall on the Mexican border, simply shifted $7 billion from another account and built it anyway?” And a month ago, the Washington Post kicked off a series of half a dozen editorials warning what would befall the republic should Trump ascend to Real Ultimate Power: “A President Trump could, unilaterally, change this country to its core,” the Post’s editorialists argued, and the other branches won’t be able to stop him: “in the U.S. System, the scope for executive action is, as we will lay out in a series of editorials next week, astonishingly broad.” 

It was nice to see the Post editorial board, which had called Obama’s recess-appointments gambit “a justifiable power grab,” evince some concern about potential abuses of executive power. Through five more editorials, they’d go on to observe that a President Trump could, among other abuses: “launch wars”; “take the oil”; “assassinate foreigners who opposed him”; issue a secret legal opinion overturning the torture ban; “launch surveillance programs targeting foreigners without informing Congress”; pull out of NAFTA, start a trade war, and “destroy the world economy.” An imposing parade of horribles, all leading up to the limpest of takeaways: “the nation should not subject itself to such a risk.” In other words, don’t vote for Trump. OK, then: Problem solved?

Obama Allows Congress to Participate in Lawmaking

This headline appeared in Thursday’s Washington Post:

Obama allows Congress a voice in NSA

The story reports that President Obama “will call on Congress to help determine the [NSA surveillance] program’s future. Which is good because Article I, Section 1, of the Constitution of the United States provides that:

All legislative Powers herein granted shall be vested in a Congress of the United States.

Deciding the scope and extent of any federal surveillance powers is clearly a legislative matter. Subject to the constraints imposed by the Constitution’s limits on federal powers, legislative powers are vested in Congress, not the president. How can reporters (and headline writers) write so cavalierly about the president “giving” Congress a chance to “weigh in” on matters of fundamental law? This headline should be as jarring as one reading, “Obama plans to give Supreme Court a say in fate of NSA program.” It isn’t up to the president. The legislative branch is empowered by the Constitution to make law, and the judicial branch is empowered to strike down legislative and executive actions not authorized by the Constitution. The president’s job is to “take Care that the Laws be faithfully executed.”

Arthur Schlesinger Jr. wrote that the rise of presidential power ‘‘was as much a matter of congressional acquiescence as of presidential usurpation.’’ It’s time for Congress to stop acquiescing. And for journalists to remind readers of the powers granted to presidents in the Constitution.

Rand Paul’s “Teachable Moment”

On the U.S. government’s targeted killing and drone-bombing program, in the past I have harped on the fact that despite the discrete and immediate effects of disrupting terrorist activity, no expert can conclusively answer whether such tactics materially reduce the threat of terrorism. But don’t just take my word for it:

  • General James E. Cartwright, the retired, former vice chairman of the Joint Chiefs of Staff, has said about drones undermining America’s long-term battle against extremism, “We’re seeing that blowback…If you’re trying to kill your way to a solution, no matter how precise you are, you’re going to upset people even if they’re not targeted.”
  • General Stanley McChrystal, the retired, former commander in Afghanistan, has said about drones and anti-American sentiment, “The resentment created by American use of unmanned strikes … is much greater than the average American appreciates. They are hated on a visceral level…”
  • And John Bellinger, a former State Department legal adviser in the George W. Bush administration, has said that one day, drone strikes might “become as internationally maligned as Guantanamo.” 

Today, in a piece for U.S. News and World Report, I write about yet another relevant factor in the drone debate beyond the scope of the aforementioned issues: the Congressional prerogative to limit executive war powers. It explains why Senator Rand Paul (R-KY) should keep fighting the good fight for more transparency over the program:

Today, our commander in chief, through a secretive decision-making process based on classified evidence, has declared the right to use lethal force against anybody, anytime, anywhere on earth. Although Paul’s effort to shine a harsh light on targeted killings has thus far been commendable, he has squandered many opportunities to explain how we get back to the constitution-based system he champions. In this respect, the liberty movement has been right to hold his feet to the fire. Thus, here comes the “teachable moment.”

Check it out

Book Forum Thursday: Debating American Exceptionalisms with Richard Gamble

Thursday at 10 AM Cato hosts Richard Gamble to discuss his book: In Search of the City on a Hill: The Making and Unmaking of an American Myth. Historians Walter McDougall and Derek Leebaert will provide commentary. 

Gamble’s book traces the “city on a hill” metaphor as American self-description. We follow it from John Winthrop, who may have used the term, following the gospels, to remind the other Puritans onboard the Mayflower of their faith’s requirements, to modern conservatives like Sarah Palin, who use it in a story about the inherent virtue of the United States—the version of American exceptionalism that sees U.S. foreign policy as the engine of liberalism’s global progress. 

The forum should help us make sense of recent debates—or rhetorical posturing—about American exceptionalism. Its loudest advocates today claim that their opponents, starting with President Obama, deny that the country is exceptional. What they ignore, as Gamble shows, is that their exceptionalism reverses the old kind. What made the United States exceptional upon independence was its liberal government. Most early American leaders thought that form of government would suffer from participation in European power politics. They worried that entanglement in foreign troubles would produce domestic conditions corrosive to liberty— a large military establishment and consolidated executive power. So the liberalism that made the nation exceptional meant avoiding the crusading foreign policies that modern proponents of American exceptionalism say it requires. 

Here’s how Gamble put it in the American Conservative last September: 

The old exceptionalism was consistent with the ethos of American constitutional democracy; the new is not. The old was an expression of and a means to sustain the habits of a self-governing people; the new is an expression of and a means to sustain a nationalist and imperialist people. The old exceptionalism suited a limited foreign policy; the new suits a messianic adventurism out to remake the world. 

McDougall’s Promised Land, Crusader State: The American Encounter with the World since 1776 concerned this revolution of exceptionalism’s meaning, so his comments should be telling. Leebaert’s recent book, Magic and Mayhem: the Delusions of American Foreign Policy from Korea to Afghanistan, is also quite relevant. As moderator, I will push the speakers to answer two questions. First, aren’t we discussing competing ideas of American nationalism? Second, are the ideas we generally see as drivers of foreign policies really just their PR and power the cause of both? 

Register here or watch live online.

FDR and Executive Order 9066

Gordon Hirabayashi died on January 2, at age 93.

The Washington Post obituary notes that the  federal government put him in a prison during the 1940s. President Franklin Roosevelt issued many decrees, but the one that would lead to Hirabayashi’s imprisonment, Executive Order 9066, said that thousands of Americans residing on the West Coast had to leave their jobs and homes and promptly report to certain prison camps (“relocation centers”).  The feds said actual proof of wrongdoing was unnecessary.

Hirabayashi refused to go along with the program, so he was prosecuted for disobeying the president and jailed. The courts rejected his argument that FDR had exceeded the powers of his office.  In an interview in 1985, Hirabayashi looked back on his ordeal and said, “My citizenship didn’t protect me one bit.  Our Constitution was reduced to a scrap of paper.”

Even though there are written safeguards concerning due process, habeas corpus, and jury trial, presidents will sometimes assert the power to override all that. FDR did it. George W. Bush did it. And Barack Obama wants to reserve the option to do it.

On January 17, Cato will be hosting a book forum about FDR’s war policies and civil liberties.

For related Cato scholarship, go here and here.

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