Caleb Brown: This is the Cato Daily Podcast for Thursday, November 10, 2016. I am Caleb Brown. Executive power is the gift that keeps on giving to every future president. The aggrandizement of the White House by George W. Bush and Barack Obama will now pass to President-elect Donald J. Trump. Gene Healy, author of the Cult of the Presidency, discusses the implications for the next White House inhabitant.
Barack Obama and George W. Bush did a lot to expand the powers of the presidency, and Congress didn’t seem to stand in the way in any significant way. Barack Obama more recently, as you noted in a recent discussion with me, was concerned that he would be leaving “a loaded gun” around in the White House for the next president. And so what has he left behind for President-elect Donald Trump?
Gene Healy: Well, it’s an important part of Barack Obama’s legacy, although it’s probably not at all the legacy he wanted to leave. You know Obama and Dick Cheney will probably never be hunting buddies, but they have more in common than most people think. Cheney described the mission of the Bush Administration as “leaving the presidency stronger than we found it.” They did that, they handed off a more powerful presidency to Barack Obama, and he turned around and made it even more powerful. And now will pay it forward to Donald J. Trump. And Trump, well for most of this year, seemed like a thought experiment that a libertarian might come up with when you’re arguing with a liberal to get that person to focus on the dangers of concentrating too much power in the Executive Branch. Well, now it’s left the realm of thought. It is an actual experiment that we are going to be running and living through.
Caleb Brown: Yes. So it seems to be if you wanted a good test of institutions and you had a candidate who was espousing a great deal of rhetoric that, on its face, would be him proposing to do things that are illegal, unconstitutional, well beyond what is even understood now to be powers either assumed or explicit for the presidency, now we have to test the quality of those institutions.
Gene Healy: Yes. And see what remains of checks and balances. Trump has promised a great many things. He has said that he won’t refuse unilateral action. He said of Obama that “he’s led the way to be honest with you.” And among the initiatives that Trump has promised at home, he said he’s going to do a lot of right things with executive orders, like, and executive actions, like use the antitrust laws to silence his critics, deport five or six million unauthorized immigrants, create a database tracking Muslim citizens, and force Apple to make the iPhone in the United States. When it comes to foreign policy, he’s got apparently a secret plan to fight ISIS, but at one point that plan involved 30,000 more ground troops in the region. And he’s also threatened to order the military to commit war crimes to bring back waterboarding and “tougher practices” and to go after terrorists’ families and take the oil. And the question for us is, you know, can he do these things? Can he get away with it? And for too many of them it seems like the answer is yes.
Caleb Brown: All right. So walk us through some of these in particular that are, where you think based solely on precedent of presidents acting and Congress and courts not deciding against it, that President Trump in January would have the authority to do these things.
Gene Healy: Well, I think on so-called enhanced interrogation he has a lot of latitude to reverse Office of Legal Counsel opinions to do it in secret and get more aggressive interrogation that may violate international law. Now, on the home front, some of the things that Trump has pledged to do would require appropriations. If he wants to ramp up immigration enforcement to the levels he’s talking about, build the border wall and so on, he’ll need funds to do that. One problem is that in recent years President Obama has minted a presidential power of the purse. He spent about seven billion dollars in Obamacare cost-sharing subsidies to insurers that Congress never appropriated. If that’s allowed to stand then President Trump would have more leeway in terms of directing funds toward things that Congress hasn’t authorized.
Caleb Brown: Courts, in particular the Supreme Court, have rejected a great deal of the Obama Administration’s priorities. What could they do to step in and stop some of these actions? Or what would they be likely to step in and stop?
Gene Healy: Well, it’s true that in some areas Obama has met push back from the courts. In his recess appointments gambit where he accrued to or declared for himself a power to determine when the Senate was actually in session, he got firmly rejected at the Supreme Court for that. And earlier this year there has been some pushback on his immigration directives and the unauthorized spending on Obamacare. But you know, in general, very few executive orders are ever overturned in court. And that’s in large part because Congress has delegated so much power to the president in the form of broadly worded statutes that the president oftentimes has at least a colorable argument that what he’s doing is authorized in some way by a prior law passed by Congress. And the courts in general have been an even weaker bulwark of our liberties when there’s anything being carried out in the name of national security. And you add to that fact that Trump may get as many as four Supreme Court appointments and the judges he is likely to appoint or to nominate would be even less inclined to push back in the national security area, you’re facing a very powerful presidency with limited ability on the part of the courts to stop him.
Caleb Brown: President Obama and President Bush used, I believe, two authorizations of the use of force to expand wars and undertake essentially new ones in various parts of the globe. Is there any appetite for Congress to roll back any of that authority?
Gene Healy: The principal law that has expanded presidential war powers is the 2001 Authorization for the Use of Military Force, or AUMF, that Congress passed three days after September 11 in order, mainly, to go after Al-Qaeda and the Taliban. And yeah, under President Bush and increasingly under President Obama, it has become this blank check for globe-spanning war against any terrorist group that the president decides to target. That is something that Congress could address. The question is whether there is appetite for addressing that. When this issue came up in the current war, or latest war in the Middle East with ISIS, the Republican delegation was mostly complaining about new AUMFs on the table, that was mostly complaining that they didn’t delegate enough power to the president. So Republicans have, in general, been less vigilant on this issue than their Democratic colleagues have.
Caleb Brown: And it doesn’t seem to be a partisan thing?
Gene Healy: And this is one of the cases where it’s not. There has been a longstanding ideological predilection for decades now on the part of conservatives to support enhanced presidential war powers. And one result is that President Obama is going to leave office as the only two-term president in American history to have been at war every day of his presidency. The fear is that he won’t be the last. In theory Congress has all the powers it needs to stop a self-aggrandizing president. You know despite what we all learned in Schoolhouse Rock, we don’t have co-equal branches. Congress’s powers are far superior, at least on paper, to the president’s. The legal scholar Charles Black put it this way in the wake of Watergate. He said: My classes think I’m trying to be funny when I say that Congress could reduce the president’s staff to one secretary and put the White House up at auction. But he said, I am not trying to be funny, these things are literally true. And if Congress on paper has, you know, the power to sell the White House, they can certainly do lesser things. They could defund authorized war, investigate abuses by the intelligence agencies as they did in the 1970s, strengthen the War Powers Resolution, and police unauthorized spending by the president. The problem is that a Republican Congress would have been more likely to check executive abuses by a Hillary Clinton administration. But now you’ve got the imperial presidency is, you know, wearing the same color robes, red, as the majority in Congress, and that tends to make the job of restraining executive power all the more difficult.
Caleb Brown: Gene Healy is a Vice President at the Cato Institute. Subscribe to this podcast at iTunes, Google Play, and with Cato’s iOS app. And follow us on Twitter, @CatoPodcast.