They called the last guy “No Drama Obama,” but after the tumultuous, exhausting, occasionally terrifying first year of this administration, no one is likely to make that mistake with Donald Trump. On the plus side, for executive power nerds, the Trump presidency has been quite the intellectual feast. Almost every day, our 45th president has turned law school hypotheticals into live issues, sending us back to the books on questions like:
- Can a sitting president be prosecuted?
- Does he have the constitutional power to pardon himself?
- Does the 25th Amendment allow removal for megalomania and low impulse control?
- And if the president decides to unleash thermonuclear “fire and fury” on North Korea, is there anything Congress—or anyone else—can do to stop him?
At this juncture, the prospect that Trump’s erratic behavior might irreparably weaken the presidency seems like an odd thing to worry about, yet some people do. “If Congress and the courts diminish the power of the office to constrain him,” Eric Posner and Emily Bazelon wonder in the New York Times, “could they leave the office too weak for future presidents to be able to govern effectively?”
It’s early days yet, but I’ll hazard a guess: no. Nearly every modern president has left the office stronger—and more dangerous—than he found it. So far, Trump appears unlikely to depart from that pattern.
Barack Obama left office as the first two-termer in American history to have been at war every single day of his presidency. In his last year alone, U.S. forces dropped over 26,000 bombs on seven different countries. Trump blew past that tally nine months into his tenure. Indeed, this putatively “isolationist” president has deepened entanglements on every battlefield Obama left him, ramping up airstrikes, kill-or-capture missions, and civilian casualties.
The legal justification for all this is the 2001 Authorization for the Use of Force Congress passed three days after 9/11, and which Trump’s two predecessors transformed into an enabling act for globe-spanning war. Far from resisting mission creep, the Trump administration has employed that authority for everything from boots on the ground in Tongo Tongo to a “Make Afghanistan Great Again” troop surge.
Outside of the ever-expanding purview of the AUMF, the Trump administration believes it has enormous inherent powers over war and peace. And as a practical matter, they may be right: “don’t expect the law or lawyers to provide avenues to constrain the President from using force in North Korea,” warns Jack Goldsmith, who served in the Justice Department’s Office of Legal Counsel during the Bush administration.
Last summer, shortly after Trump’s off-the-cuff threat to nuke North Korea, the New Yorker’s Evan Osnos flew to Pyongyang for a series of interviews with top regime officials. He recounted an unsettling exchange over dinner and drinks with Ri Yong Pil, a Foreign Ministry apparatchik. Ri asked: “In your system, what is the power of the President to launch a war [or] does the Congress have the power to decide?” The president “can do a lot without Congress,” Osnos answered, including launch nuclear weapons; “what about in your country?” Ri’s answer “was similar”: “Our Supreme Leader has absolute power to launch a war.”
On the home front, thankfully, Trump’s unilateral powers are less than supreme. The candidate who proclaimed “I alone can fix it” has learned that the presidency doesn’t run like a business or a reality show—you can’t just say “you’re fired” to Congress or the courts.
Trump might get his way more often if not for his pathological tendency to get in his own way. A competent and savvy would-be strongman wouldn’t announce major policy changes over Twitter or dare “so called judges” to strike them down.
Still, as then-law professor, now Supreme Court Justice, Elena Kagan noted in a 2001 article “Presidential Administration,” modern presidents have accrued significant power over regulatory policy, “making the regulatory activity of the executive branch agencies more and more an extension of the President’s own policy and political agenda.” The Trump administration used that authority aggressively in its first year, tapping the brakes on “significant” new regulations (costing $100 million or more), undoing 15 Obama-era rules via the Congressional Review Act, and restricting the practice of making law via “guidance” letters. If the results fall far short of Steve Bannon’s promised “deconstruction of the administrative state,” they’re still welcome changes for conservatives and libertarians.
But what goes down can come back up, and rise to new heights. As Kagan noted, the president’s administrative authority works just as well to push “a distinctly activist and pro-regulatory agenda.” Even when one approves of what the president does with the stroke of a pen, the fact that so much power has been concentrated in the presidency undermines the rule of law. One of Hamilton’s main arguments in the Federalist for “energy in the executive” was that it would be “essential to the steady administration of the laws.” In the modern era, it has had the opposite effect: the “law” can change radically from administration to administration, depending on the policy preferences of the president. You may “win” or “lose” every four to eight years, depending on whether the president shares your preferences, but at some point it’s worth asking: is this any way to govern a country?
Handwringing about an unpopular president weakening the executive branch is one of the hoariest—and dumbest—clichés in presidential punditry. Whether it’s Bill Clinton, George W. Bush, or Barack Obama, every time a president’s approval ratings tank, we get a flurry of think pieces about the “Incredible Shrinking Presidency.” Trump, massively unpopular to begin with, has had more than his share.
“Officials start to ignore the Incredible Shrinking President,” MSNBC’s Steve Benen announced in August: “It’s like we’re watching a president become a lame duck just six months after his inauguration.” “The ‘most powerful man in the world’ is suddenly looking mighty powerless,” echoed Mike Allen in Axios. In the Huffington Post last month, Kevin Price proclaimed that “Donald Trump’s influence is shrinking at a breakneck pace,” as supposedly evidenced by the fact that he’s abandoned “conventional methods to get things passed and is now using policies, regulations, an d executive orders to get his agenda accomplished.” But the prizewinner is probably Time magazine’s April 6 feature on “The Incredible Shrinking Power of the President’s Threats”—posted just hours before Trump ordered a drive-by missile attack on the Assad regime in Syria.
That’s the thing about the “Incredible Shrinking Presidency”: it never seems to get any smaller or less menacing. But if there’s ever going to be a “teachable moment” on the dangers of concentrating too much power in the executive branch, it ought to be now.