19 (Author at Cato Institute) https://www.cato.org/rss/people/19 en Can the President Order Companies to Stop Doing Business in China? https://www.cato.org/cato-daily-podcast/can-president-order-companies-stop-doing-business-china?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy, Caleb O. Brown <p>A presidential tweet ordered American companies to begin looking away from China for trade. What's the legal basis for such a claim? Gene Healy comments.</p> Wed, 04 Sep 2019 22:46:00 -0400 Gene Healy, Caleb O. Brown https://www.cato.org/cato-daily-podcast/can-president-order-companies-stop-doing-business-china Trump’s Emergency Economic Powers: “Case Closed”? https://www.cato.org/trumps-emergency-economic-powers-case-closed?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy <p>On the campaign trail a few years back, Hillary Clinton <a href="https://www.nytimes.com/2008/03/25/us/politics/25campaign.html?_r=1&amp;ref=politics&amp;oref=slogin">declaimed</a>: “We need a president who is ready on Day 1 to be <em>commander in chief of our economy</em>.” We got <a href="https://www.cato.org/blog/we-eagerly-await-orders-maam">a good laugh</a> out of that here at Cato—what a megalomaniacal misconception of the job! When President Trump embraced the role last Friday, it somehow seemed less amusing. “Our great American companies <a href="https://twitter.com/realdonaldtrump/status/1164914960046133249?s=21">are hereby ordered</a> to immediately start looking for an alternative to China,” he brayed, sending the markets into a <a href="https://www.nytimes.com/2019/08/23/business/stocks-market-tariffs.html?smid=nytcore-ios-share">Twitter-driven tailspin</a>. &#13;<br /> &#13;</p> <div data-embed-button="image" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="8acbe592-5289-47e2-83a5-8320429c3146" class="align-right embedded-entity" data-langcode="und"> <p><img srcset="/sites/cato.org/files/styles/pubs/public/wp-content/uploads/hereby_ordered.png?itok=6dMXGXjc 1x, /sites/cato.org/files/styles/pubs_2x/public/wp-content/uploads/hereby_ordered.png?itok=ozFg3cKZ 1.5x" width="650" height="487" src="https://www.cato.org/sites/cato.org/files/styles/pubs/public/wp-content/uploads/hereby_ordered.png?itok=6dMXGXjc" alt="Media Name: hereby_ordered.png" typeof="Image" class="component-image" /></p></div> <p>Where does Trump derive the authority for that “order”? On Saturday, he followed up with <a href="https://twitter.com/realdonaldtrump/status/1165111122510237696?s=21">a statutory citation</a> for the haters: “try looking at the Emergency Economic Powers Act of 1977. Case closed!” &#13;<br /> &#13;<br /> True, President Trump makes a lot of crazy threats he never carries out: from <a href="https://www.nytimes.com/2018/10/30/us/politics/trump-birthright-citizenship.html?smid=nytcore-ios-share">revoking birthright citizenship</a>, to <a href="https://www.apnews.com/7ff47e107a4c432fa323ed6d55fa3f39">closing the border</a>, to using the same 1977 Act to <a href="https://www.cato.org/blog/emergency-exit-strategy">hammer Mexico</a> with across-the-board tariffs, as Trump threatened to do in May. There’s a pattern here: the president sounds his barbaric yawp over the roofs of the world, but before long, backs it down to an ineffectual grumble. In this case, the cycle took all of two days: “I have the right to, if I want,” Trump <a href="https://www.whitehouse.gov/briefings-statements/remarks-president-trump-prime-minister-johnson-united-kingdom-working-breakfast-biarritz-france/?utm_source=link">insisted Sunday</a>, but “I have no plan right now. Actually, we’re getting along very well with China.” OK, then: never mind! &#13;<br /> &#13;<br /> But we’d be fools to shrug this episode off as another unsettling, but ultimately meaningless Trumpian brainspasm, like nuking hurricanes or buying Greenland. For decades now, Congress has defined national emergencies downwards, investing the executive branch with dangerous new powers the president can trigger by saying the magic words. Trump has <a href="https://www.politico.com/latest-news-updates/trump-national-emergency-border-wall">only begun</a> to explore the possibilities, and there may be more competent would-be authoritarians waiting in the wings.&#13;<br /> &#13;<br /> The statute Trump specified, the International Emergency Economic Powers Act of 1977 (IEEPA), gives the president an <a href="https://www.law.cornell.edu/uscode/text/50/1702">imposing array</a> of unilateral powers to deploy against “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States” if he “declares a national emergency with respect to such threat.” Granted, Trump’s definition of “emergency” may differ from yours, mine, and the <a href="https://www.dictionary.com/browse/emergency">dictionary’s</a>. “For many years, this has been going on,” he <a href="https://twitter.com/genehealy/status/1165711266364760064?s=21">explained Sunday</a>, “in many ways, that’s an emergency.” But if history is any guide, federal judges will be extremely reluctant to <a href="https://law.justia.com/cases/federal/district-courts/FSupp/633/1191/1678397/">second-guess</a> “the wisdom of the President's judgment concerning the nature and extent of [the] threat.”&#13;<br /> &#13;<br /> So, “case closed”? Could Trump order U.S. companies to pack up and come home? Not quite; but he could make it extremely difficult for them to do business in and with China. The IEEPA gives the president <a href="https://www.everycrsreport.com/reports/R45618.html#_Toc4073898">staggeringly broad powers</a> to block transactions and freeze assets in which any foreign government or foreign national has an interest. And Trump’s not wrong to think he might get away with using the law as a trade-war bludgeon. A Congressional Research Service <a href="https://fas.org/sgp/crs/natsec/R45618.pdf">report</a> published two months before Trump first started <a href="https://www.reuters.com/article/us-usa-trade-mexico-legal-analysis/trumps-mexican-tariffs-test-limits-of-us-emergency-powers-legal-experts-idUSKCN1T12AB">threatening to use IEEPA</a> to hike tariffs, opined that such a use was unlikely, but <a href="https://www.everycrsreport.com/reports/R45618.html#_Toc16241036">probably permissible</a>.  &#13;<br /> &#13;<br /> The National Emergencies Act of 1976, the framework statute that was supposed to rein in presidential emergency powers, won’t be much help either. It originally allowed Congress to terminate presidential emergencies by <a href="https://www.washingtonpost.com/opinions/2019/03/14/how-supreme-court-weakened-congress-emergency-declarations/">majority vote</a>, but thanks to a 1983 Supreme Court <a href="https://www.everycrsreport.com/reports/RS22132.html">decision</a>, the law now requires termination via <a href="https://www.senate.gov/reference/glossary_term/joint_resolution.htm">joint resolution</a>, subject to the president’s veto. Under the current emergency-powers regime, then, the president gets to do what he wants unless a congressional supermajority can be assembled to stop him. &#13;<br /> &#13;</p> <p>The good news is that Trump’s norm-busting on emergency powers has spurred a bipartisan reform effort in Congress. On July 24, the Senate Homeland Security and Governmental Affairs Committee moved an important emergency-powers reform bill forward by an 11-2 majority. That bill, Senator Mike Lee’s (R-Utah) <a href="https://www.congress.gov/bill/116th-congress/senate-bill/764/text?q=%7B%22search%22%3A%5B%22%5C%22national+emergencies%5C%22%22%5D%7D&amp;r=6">ARTICLE ONE Act</a>, would amend the National Emergencies Act to void new emergency declarations within 30 days unless Congress affirmatively approves them. Once approved, new emergency declarations require annual reapproval by Congress. The A-1 Act thus changes the current default setting—the president proposes, and the president disposes—to one in which any emergency edicts he issues rapidly expire without legislative sanction.    &#13;<br /> &#13;<br /> The A-1 Act also addresses IEEPA abuse: thanks to an <a href="https://www.toomey.senate.gov/?p=op_ed&amp;id=2469">amendment</a> offered by Senator Tom Carper (D-DE) and approved by voice vote, it would restrict the president’s ability to use the 1977 law to hike tariffs. The IEEPA, it <a href="https://www.congress.gov/bill/116th-congress/senate-bill/2413/text?q=%7B%22search%22%3A%5B%22Trade+Certainty+Act%22%5D%7D&amp;r=1&amp;s=2">clarifies</a>, “does not include the authority to impose duties or tariff-rate quotas or… other quotas on articles entering the United States.”  &#13;<br /> &#13;<br /> That’s an important change, but it comes with a pretty significant exception: even under the Carper amendment, the president can use the IEEPA for blanket bans of “all articles, or all of a certain type of article, imported from a country from entering the United States.” Nor would authorities claimed under the IEEPA sunset 30 days after the declared emergency. The A-1 Act exempts IEEPA emergencies from the new framework; they remain renewable at-will by the president unless affirmatively repealed by Congress over the president’s veto. &#13;<br /> &#13;<br /> All but three of the <a href="https://www.brennancenter.org/sites/default/files/analysis/Declared%20Emergencies%20under%20NEA81419.pdf">34 currently active</a> national “emergencies” <a href="https://fas.org/sgp/crs/natsec/LSB10252.pdf">rest on</a> the 1977 law. The case for an IEEPA carve-out is that the bulk of those 31 are fairly uncontroversial, and requiring yearly congressional reapprovals would be cumbersome. That case was far more compelling before President Trump started threatening to weaponize IEEPA against major trading partners and the American consumer. &#13;<br /> &#13;<br /> Even so, the ARTICLE ONE Act would constitute a major improvement over the current emergency powers regime, and a possible foundation for future reforms. The courts are <a href="https://twitter.com/realDonaldTrump/status/1154883345546928128">unlikely</a> by themselves to impose the necessary restraints. It’s Congress that got us into this mess, and it’s going to be up to Congress to get us out. </p> Tue, 27 Aug 2019 16:14:00 -0400 Gene Healy https://www.cato.org/trumps-emergency-economic-powers-case-closed Repeal Old AUMFs and Salt the Earth https://www.cato.org/repeal-old-aumfs-salt-earth?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy <p>For months now, the Trump administration has pursued a “maximum pressure” campaign that—by accident or <a href="https://www.cato.org/blog/impeach-john-bolton">by design</a>—has brought the United States to the brink of war with Iran. The branch of government with the constitutional power to declare war ought to have <a href="//oll.libertyfund.org/titles/1910#Hamilton_3953_427">the final word here</a>. Lately, however, Trump officials have hinted that Congress has <em>already had</em> its say—nearly 18 years ago, when it authorized war with Al Qaeda and the Taliban.  &#13;<br /> &#13;<br /> The 2001 <a href="https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf">Authorization for the Use of Military Force</a>, passed three days after the September 11 attacks, targets the perpetrators of 9/11 and those who “harbored” or “aided” them. In the intervening years, the 2001 AUMF has been stretched far beyond its original purposes—but the Trump team apparently believes it can be stretched further still. In June we learned that, in a closed session, Secretary of State Mike Pompeo gave House members “a full formal presentation on <a href="https://twitter.com/benjaminja/status/1139165395435294721?s=20">how the 2001 AUMF might authorize war on Iran</a>.” Two weeks ago, at a <a href="https://www.foreign.senate.gov/hearings/reviewing-authorities-for-the-use-of-military-force-072419">Senate Foreign Relations Committee hearing</a>, administration officials left the door open to that interpretation with an ominous qualifier: “the administration has not <em>to date</em> interpreted [the 2001 AUMF] as authorizing military force against Iran.” Why the caveat? Five different senators <a href="https://www.foreign.senate.gov/hearings/reviewing-authorities-for-the-use-of-military-force-072419">pressed for answers</a>, but the State Department legal adviser refused to address “hypotheticals”: “we can't predict future events.” &#13;<br /> &#13;</p> <div class="responsive-embed"></div><p>Last Wednesday, the Charles Koch Institute hosted a panel discussion, <a href="https://www.c-span.org/video/?463315-1/iran-authorizing-military-force">“Unauthorized? The 2001 AUMF and Iran,”</a> featuring <a href="https://law.utexas.edu/faculty/stephen-i-vladeck/">Steve Vladeck</a>, <a href="https://www.fcnl.org/people/heather-brandon-smith">Heather Brandon-Smith</a>, and myself. No question mark necessary, we argued: no good-faith reading of the AUMF could conclude it covers war with Iran in 2019. &#13;<br /> &#13;<br /> I’d like to amplify a point I made there: this is a line of argument that proved too brazen even for the Bush-Cheney administration, back when the AUMF was young. That should tell us something about how spurious the Trump administration’s position is, nearly two decades later. &#13;<br /> &#13;</p> <p>In the summer of 2002, when President George W. Bush was hell bent on taking out Saddam Hussein, anonymous White House lawyers floated the idea that the president already had all the power he needed to go to war without Congress. <a href="https://www.washingtonpost.com/archive/politics/2002/08/26/bush-aides-say-iraq-war-needs-no-hill-vote/1134f8a8-291c-46ff-8cce-54e5c3920b6f/?utm_term=.9741d251c839">“Bush Aides Say Iraq War Needs No Hill Vote,”</a> a <em>Washington Post </em>headline blared on August 26, 2002. The president’s legal team had three arguments for that proposition: first was the John Yoo theory that Article II gives the president the <a href="https://www.latimes.com/archives/la-xpm-2005-dec-20-oe-yoo20-story.html">“right to start wars.”</a> Second was the equally fantastic claim that <a href="https://www.cato.org/publications/commentary/war-legal-loophole">the 1991 Gulf War resolution</a>, authorizing George H.W. Bush to liberate Kuwait, still had enough life left in it to authorize his son to take Baghdad over a decade later. The 2001 AUMF came in as an afterthought: the Bush 43 lawyers argued that it “bolstered” their position, though, as the <em>Post </em>noted, “That argument would depend on linking Iraq and al Qaeda.”&#13;<br /> &#13;<br /> At the time, Bush officials were working hard to establish that link in the public mind. Vice President Dick Cheney <a href="https://www.newsweek.com/atta-prague-did-it-happen-109225">claimed</a> that 9/11 hijacker Mohamed Atta had met with Iraqi intelligence in Prague five months before the attacks. President Bush insisted that links between Iraq and Al Qaeda were so tight that <a href="https://georgewbush-whitehouse.archives.gov/news/releases/2002/10/20021007-8.html">“on any given day,”</a> Saddam might give WMD to the group for a second 9/11. None of this <a href="http://mason.gmu.edu/~pubp502/pfiffner-readings-bushwmd.htm">turned out to be true</a>, but you push for war with the disinformation you have. &#13;<br /> &#13;<br /> Even so, as the <em>Post</em> story suggests, the Bush legal team rated the 2001 AUMF as their third-best argument, behind the maximalist interpretation of Article II powers and the claim that the Gulf War AUMF authorized regime change in Iraq 11 years after Desert Storm. That's also reflected in the October 2002 Bush <a href="https://fas.org/irp/agency/doj/olc/force.pdf">Office of Legal Counsel opinion</a> on authority for the Iraq War. The 2001 AUMF argument gets <a href="https://fas.org/irp/agency/doj/olc/force.pdf#page=14">one paragraph</a> in the 48-page OLC opinion, analysis limited to a conclusory sentence: “Were the President to determine that Iraq provided assistance to the perpetrators of the September 11th attacks, this authorization would apply to the use of military force against Iraq.” &#13;<br /> &#13;<br /> The Bush-Cheney team was hardly shy about aggressive legal interpretations of the post-9/11 AUMF: they invoked it to justify <a href="http://en.wikipedia.org/wiki/Terrorist_surveillance_program">secret surveillance programs</a>; military imprisonment, <a href="https://www.cato.org/publications/commentary/jose-padilla-constitutional-unperson">without charges</a>, of American citizens on American soil; and other enormities. But, in the end, they decided the 2001 AUMF couldn’t carry the weight of a new war with a country that had nothing to do with the September 11 attacks. While refusing to concede that separate authorization was legally necessary, the administration opted to secure a new AUMF for the Iraq War. &#13;<br /> &#13;<br /> Nearly 18 years after the 2001 AUMF’s passage, the case that it covers war with Iran is weaker still. The <em>9/11 Commission Report</em> found <a href="https://books.google.com/books?id=DOGq2z6bBq4C&amp;lpg=PA241&amp;dq=%E2%80%9Cfound%20no%20evidence%20that%20Iran%20or%20Hezbollah%20was%20aware%20of%20the%20planning%20for%20what%20later%20became%20the%209%2F11%20attack.%E2%80%9D&amp;pg=PA241#v=onepage&amp;q=%E2%80%9Cfound%20no%20evidence%20that%20Iran%20or%20Hezbollah%20was%20aware%20of%20the%20planning%20for%20what%20later%20became%20the%209/11%20attack.%E2%80%9D&amp;f=false">“no evidence”</a> that Iran “was aware of the planning for what later became the 9/11 attack.” The Trump administration has no such evidence now, which is probably why Secretary Pompeo keeps pounding the table about an <a href="https://foreignpolicy.com/2019/06/24/u-s-intelligence-undercuts-trump-case-on-iran-al-qaeda-links/">alleged</a> “connection” between Iran and Al Qaeda. It’s <a href="https://www.justsecurity.org/64650/asking-the-right-question-on-iran-al-qaeda-and-the-aumf/">a bait and switch tactic</a> designed to reframe the AUMF debate around a standard that’s easier to meet, even if it’s nowhere to be found in the law. &#13;<br /> &#13;<br /> At the recent SFRC hearing, Sen. Jeff Merkley (D-OR) walked the Trump State Department’s legal adviser through the language of the 2001 AUMF: Did Iran <em>plan</em>, <em>authorize, commit, </em>or <em>aid</em> the 9/11 attack? Did they <em>harbor</em> those who did? Answer: “Not that I’m aware of, Senator.” “Five standards. You just said none of them were met,” Senator Merkley summed up, “And yet you persist in arguing in interpretation of an AUMF that Congress didn't intend and is not there in the language.” &#13;<br /> &#13;<br /> The lesson we should draw from all this is that it’s profoundly dangerous to leave old war authorizations on the books. Indeed, as my copanelist Heather Brandon-Smith <a href="https://thehill.com/blogs/congress-blog/politics/451117-congress-needs-to-repeal-the-2002-iraq-authorization-for-use-of">points out</a>, the Trump administration claims the 2002 Iraq AUMF “authorizes force to address both ‘threats to’ and ‘stemming from Iraq,’” covering military operations in “Syria or elsewhere.” The <a href="https://www.cato.org/blog/government-program-immortality">old saw</a> that “a government bureau is the nearest thing to eternal life we’ll ever see on this earth” could just as easily apply to unrepealed AUMFs. Even if those that look dormant are a potential source of mischief for any president who decides to reanimate them. It’s past time for the two Iraq authorizations and, especially, <a href="https://www.nytimes.com/2018/04/17/opinion/repeal-replace-trump-war-powers.html">the 2001 AUMF</a> to go the way of <a href="https://www.nytimes.com/1971/01/14/archives/gulf-of-tonkin-resolution-is-repealed-without-furor.html">the Gulf of Tonkin Resolution</a>. </p> Tue, 13 Aug 2019 14:41:00 -0400 Gene Healy https://www.cato.org/repeal-old-aumfs-salt-earth Gene Healy discusses impeachment on the Straight Talk MD with Frank Sweeny podcast https://www.cato.org/media-highlights-radio/gene-healy-discusses-impeachment-straight-talk-md-frank-sweeny?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Mon, 12 Aug 2019 10:58:00 -0400 Gene Healy https://www.cato.org/media-highlights-radio/gene-healy-discusses-impeachment-straight-talk-md-frank-sweeny Gene Healy participates in the event, "Iran and the Use of Military Force," on C-SPAN https://www.cato.org/media-highlights-tv/gene-healy-participates-event-iran-use-military-force-c-span?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Thu, 08 Aug 2019 13:23:00 -0400 Gene Healy https://www.cato.org/media-highlights-tv/gene-healy-participates-event-iran-use-military-force-c-span Gene Healy discusses the Mueller testimony and its implications on Hearst TV https://www.cato.org/media-highlights-tv/gene-healy-discusses-mueller-testimony-its-implications-hearst-tv?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Sun, 21 Jul 2019 13:47:00 -0400 Gene Healy https://www.cato.org/media-highlights-tv/gene-healy-discusses-mueller-testimony-its-implications-hearst-tv Gene Healy's commentary, "What's Conservative about the Pledge of Allegiance?," is cited on Free Talk Live https://www.cato.org/media-highlights-radio/gene-healys-commentary-whats-conservative-about-pledge-allegiance?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Wed, 17 Jul 2019 09:48:00 -0400 Gene Healy https://www.cato.org/media-highlights-radio/gene-healys-commentary-whats-conservative-about-pledge-allegiance Defining War Down https://www.cato.org/cato-daily-podcast/defining-war-down?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy, Caleb O. Brown <p>There is no credible way to conclude that the United States is not at war. Ah, but "endless war" Is another thing altogether, right? Gene Healy comments.</p> Thu, 11 Jul 2019 03:00:00 -0400 Gene Healy, Caleb O. Brown https://www.cato.org/cato-daily-podcast/defining-war-down Joe Biden on Impeachment for Illegal Warmaking https://www.cato.org/joe-biden-impeachment-illegal-warmaking?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy <p>I don’t know if the moderators of <a href="https://www.vox.com/2019/6/27/18760745/democratic-debate-time-schedule-live-stream-candidates-second-night">tonight’s Democratic primary debate</a> are taking requests, but here’s my question for former vice-president—and current frontrunner—<a href="https://www.cnn.com/2019/06/27/politics/joe-biden-debate-preview/index.html">Joe Biden</a>:&#13;<br /> &#13;</p> <blockquote><p>“Mr. Biden, the last time you were running for president, you promised that if George W. Bush ‘takes this nation to war in Iran, without congressional approval, <a href="https://www.buzzfeednews.com/article/andrewkaczynski/obama-and-biden-have-said-military-action-without-congressio#.qhWjq06RJ3">I will make it my business to impeach him.</a>’ Now, over a decade later, war with Iran is again on the horizon, and just this Monday, <a href="https://thehill.com/homenews/administration/450117-trump-i-do-not-need-congressional-approval-to-strike-iran">the president said</a> he does not need congressional authorization to wage war. If he acts on that belief, <strong>will you call for Congress to impeach President Trump?</strong>” </p> </blockquote> <p>In December 2007, when then-Senator Biden made those remarks, the crowd in Davenport Iowa answered with hearty cheers.&#13;<br /> &#13;</p> <div class="responsive-embed"></div><p>At the time, there was a serious concern that President Bush would use prior congressional authorizations--like the 2002 Iraq War resolution or the post-9/11 Authorization for the Use of Military Force (2001 AUMF)--as cover for a new war with Iran. A month before Biden’s speech, then-Senator Barack Obama introduced <a href="https://www.congress.gov/bill/110th-congress/senate-joint-resolution/23/text">a joint resolution</a> designed to foreclose that option. "There is absolutely no reason to trust that this Administration will not use existing congressional authorization to justify military action against Iran," Obama warned.&#13;<br /> &#13;<br /> Here we are again: now, nearly 12 years later, there’s no reason to trust that <em>this</em> administration won’t use the 2001 AUMF as justification for war with Iran. Secretary of State Mike Pompeo has <a href="https://www.vox.com/2019/6/14/18678809/usa-iran-war-aumf-911-trump-pompeo">suggested as much</a>, behind closed doors, to members of the House Armed Services Committee. &#13;<br /> &#13;<br /> Joe Biden knows something about the 2001 AUMF: he voted for it, three days after 9/11. And, like practically every other member who passed that resolution, he described it as a limited measure, aimed at those who were responsible for the attacks. As the <em>New York Times</em> <a href="https://www.nytimes.com/2001/09/15/us/after-the-attacks-the-overview-us-demands-arab-countries-choose-sides.html">reported</a> after the vote: “Senator Joseph R. Biden Jr., chairman of the Foreign Relations Committee, said Congress was not ceding its constitutional authority to declare war or intending to write a measure like the Gulf of Tonkin resolution, which President Lyndon B. Johnson used in 1964 to justify escalation of the war in Vietnam.” &#13;<br /> &#13;<br /> The 2001 AUMF has now been in effect <a href="http://www.nytimes.com/1971/01/14/archives/gulf-of-tonkin-resolution-is-repealed-without-furor.html?_r=0">almost three times as long</a> as the Gulf of Tonkin Resolution, and the current administration thinks it can draw on that authority to wage war over the <a href="https://en.wikipedia.org/wiki/June_2019_Gulf_of_Oman_incident">“Gulf of Oman incident.”</a>  &#13;<br /> &#13;<br /> In the short term, Congress has limited means available to it for heading off war. Most of the measures <a href="https://www.bloomberg.com/news/articles/2019-06-20/iran-tensions-prompt-lawmakers-to-revisit-trump-s-war-powers">currently being debated on the Hill</a> would have to make it past a presidential veto. A sense-of-Congress resolution <a href="https://www.cato.org/publications/commentary/impeachment-should-be-table-trump-bombs-iran">threatening impeachment</a> for unauthorized warmaking would not. Biden’s no longer in a position to do more than advocate such a move, but it seems to fit with how he described his 2007 impeachment threat: “a prescriptive way to make clear to this man that there will be severe consequences, because [attacking Iran] would be the most dire action we could take at this moment.” Back then, Biden insisted that an unauthorized strike on Iran would be an impeachable offense. Does he still think so today? &#13;<br /> &#13;<br /> If he got the question, my guess is that Biden would answer, “yes.” Willingness to use the dreaded “I-word” might help shield the Democratic frontrunner from attacks on his left flank. Of course, given Biden’s service as vice president in an administration that <a href="https://time.com/3326689/obama-isis-war-powers-bush/">ran roughshod over congressional war powers</a>—that answer might also give rise to some awkward questions. But this is the business he's chosen. &#13;<br /> &#13;<br />  </p> Thu, 27 Jun 2019 15:21:26 -0400 Gene Healy https://www.cato.org/joe-biden-impeachment-illegal-warmaking Emergency Exit Strategy https://www.cato.org/emergency-exit-strategy?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy <p>His brand is crisis, so it can be hard to keep abreast of the various calamities President Trump stumbles into or deliberately courts. Now that tensions with Iran seem to have momentarily cooled, another recent episode of Trumpian brinksmanship, closer to home, deserves some attention before we lurch forward into new dangers. &#13;<br /> &#13;<br /> As you’ve surely heard, but may have already forgotten amid the fog of near-war, three weeks ago, President Trump threatened to declare yet another national emergency at the southern border. If Mexico didn’t sufficiently crack down on cross-border migration, <a href="https://www.whitehouse.gov/briefings-statements/statement-president-regarding-emergency-measures-address-border-crisis/">Trump warned</a>, he’d use “the authorities granted to me by the International Emergency Economic Powers Act” to hammer our third largest trading partner—and U.S. consumers—with a series of escalating tariffs on Mexican goods, rising to 25 percent across the board. &#13;<br /> &#13;<br /> Fortunately, on June 7, three days before the deadline he’d set, President Trump called off the trade war. But, Trump warned, he <a href="https://abcnews.go.com/Politics/wireStory/trump-hangs-tariff-threat-mexico-deal-63589033">“can always go back”</a> to raising tariffs if he’s not happy.&#13;<br /> &#13;<br /> The notion that the president can, with the stroke of a pen, upend peaceful trade relations and implement <a href="https://thehill.com/policy/international/trade/446540-trumps-proposed-tariffs-on-mexico-would-be-biggest-tax-hike-in">a massive tax hike</a> ought to sound the alarm about Trump’s expansive view of presidential emergency powers. Are they as vast as the president claims, and, if so, what can Congress do to rein them in? &#13;<br /> &#13;</p> <div data-embed-button="image" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="1af7b588-8af0-4ba7-ac76-bb69c1b49399" data-langcode="und" class="embedded-entity"> <p><img srcset="/sites/cato.org/files/styles/pubs/public/wp-content/uploads/3294df5c-2f1c-4fd1-bf7c-7a3e7e21a3e2.jpeg?itok=Wuh711Sa 1x, /sites/cato.org/files/styles/pubs_2x/public/wp-content/uploads/3294df5c-2f1c-4fd1-bf7c-7a3e7e21a3e2.jpeg?itok=b2Rh5IY3 1.5x" width="700" height="730" src="https://www.cato.org/sites/cato.org/files/styles/pubs/public/wp-content/uploads/3294df5c-2f1c-4fd1-bf7c-7a3e7e21a3e2.jpeg?itok=Wuh711Sa" alt="Media Name: 3294df5c-2f1c-4fd1-bf7c-7a3e7e21a3e2.jpeg" typeof="Image" class="component-image" /></p></div> <p>As I argued <a href="https://reason.com/2019/04/06/standing-on-the-shoulders-of-t/">in Reason magazine recently</a>, our latest Imperial President has aggressively exploited the powers he inherited, but hasn’t been much of an innovator in terms of devising genuinely new schemes for the expansion of executive power. Trump’s use of emergency authorities is the glaring exception to that pattern, the key area in which the <a href="https://www.cnn.com/2018/11/06/business/trump-midterm-ceo-president/index.html">“CEO president”</a> has been menacingly entrepreneurial.&#13;<br /> &#13;<br /> We saw this first in February, when President Trump <a href="https://www.nytimes.com/2019/02/15/us/politics/national-emergency-trump.html">declared a national emergency</a> in order to “build the wall” on the U.S.-Mexico border. The statute Trump invoked, <a href="https://www.law.cornell.edu/uscode/text/10/2808">10 USC § 2808</a>, allows the president to divert funds to “military construction projects” supporting the use of U.S. armed forces in a military emergency. It had been used <a href="https://www.everycrsreport.com/reports/IN11017.html">only twice before</a>, by George H.W. Bush in the run-up to the Gulf War, and by his son in the aftermath of the 9/11 attacks—the sort of circumstances it was clearly designed to address. Though past presidents had used emergency powers liberally, before Trump, it apparently hadn’t occurred to anyone that you could use them to <a href="https://www.cato.org/blog/our-emergency">snatch funding for a pet project</a> that Congress had repeatedly refused to support. &#13;<br /> &#13;</p> <p>Nor had the International Emergency Economic Powers Act of 1977 (IEEPA), the statute Trump brandished against Mexico earlier this month, ever been used to impose tariffs—much less on a friendly major trading partner. The IEEPA cedes sweeping authorities to the president during a declared national emergency, but up till now presidents have mainly used it as an <a href="https://www.everycrsreport.com/files/20190320_R45618_e985c38bdba3d48769a70bd27efdeb95390c9216.pdf#page=51">all-purpose sanctions tool</a> against so-called “rogue states” and various international bad guys like drug kingpins, computer hackers, and terrorists. &#13;<br /> &#13;<br /> On its face, the statute <a href="https://twitter.com/jahillmangulaw/status/1134417145893404672?s=21">doesn’t read</a> like a delegation of the power to set trade policy. It gives the president the power to “investigate, regulate, and prohibit” various international transactions, but says nothing about imposing duties or restricting imports. Even so, it’s entirely possible President Trump could get away with using the IEEPA as a trade-war weapon. As Scott R. Anderson and Kathleen Claussen explain at the <a href="https://www.lawfareblog.com/legal-authority-behind-trumps-new-tariffs-mexico">Lawfare</a> blog, there’s “some precedent for using IEEPA-like authorities to impose tariffs.” In 1971, President Nixon used a predecessor statute with similar language, the Trading with the Enemy Act, to hike tariffs on all imports by 10 percent, and a federal appeals court <a href="https://scholar.google.com/scholar_case?case=8409755731772657126&amp;q=United+States+v.+Yoshida+Int%27l,+Inc&amp;hl=en&amp;as_sdt=20006">upheld</a> the move. &#13;<br /> &#13;<br /> If we don’t want the president to have the power to do an end-run around Congress in budget battles or launch <a href="https://www.c-span.org/video/?456081-4/washington-journal-rob-montz-discusses-growth-power-presidency">a trade war from his couch</a>, Congress needs to get serious about reining in the emergency powers it’s foolishly delegated. Reforming the framework statute governing those powers is the place to start.</p> <p>The National Emergencies Act of 1976 (NEA) <a href="https://www.law.cornell.edu/uscode/text/50/1631">requires</a> the president to formally declare national emergencies, specifying the statutory powers he claims, and it <a href="https://www.law.cornell.edu/uscode/text/50/1622">sunsets</a> those declarations after one year unless the president renews them. The NEA originally allowed Congress to terminate emergencies earlier, by a <a href="https://www.washingtonpost.com/opinions/2019/03/14/how-supreme-court-weakened-congress-emergency-declarations/">majority vote</a> of both houses. But since the Supreme Court struck down the <a href="https://www.everycrsreport.com/reports/RS22132.html">“legislative veto”</a> in 1983, the law now requires termination via <a href="https://www.senate.gov/reference/glossary_term/joint_resolution.htm">joint resolution</a>, subject to the president’s veto. The upshot is that national emergencies are “easy to declare and hard to stop,” as the Brennan Center’s Elizabeth Goitein <a href="https://www.brennancenter.org/analysis/testimony-house-judiciary-committee-national-emergencies-act-1976">puts it</a>: once declared, presidents can renew them at will unless Congress can muster a veto-proof majority for disapproval. That turns the legislative process on its head: the president proposes, and the president disposes. &#13;<br /> &#13;<br /> Several bills introduced this year would reverse the presumption that emergencies continue indefinitely unless a congressional supermajority can be assembled to stop them: Rep. Tom Reed (R-NY)’s <a href="https://www.congress.gov/bill/116th-congress/house-bill/1410/text?q=%7B%22search%22%3A%5B%22hr1410%22%5D%7D&amp;r=1&amp;s=2">Guarding Congressional Authority Act</a>, Sen. Mike Lee’s (R-UT) <a href="https://www.congress.gov/bill/116th-congress/senate-bill/764?s=1&amp;r=29">ARTICLE ONE Act</a> (for ‘‘Assuring that Robust, Thorough, and Informed Congressional Leadership is Exercised Over National Emergencies’’) and, introduced June 12 by Senators Rand Paul (R-KY) and Ron Wyden (D-OR), the <a href="https://www.paul.senate.gov/news/sens-paul-and-wyden-introduce-republic-act-rein-presidential-national-emergency-powers">REPUBLIC Act</a> (for “Reforming Emergency Powers to Uphold the Balances and Limitations Inherent in the Constitution”). (On the Senate side, they budget for creative acronyms). &#13;<br /> &#13;<br /> All three bills would amend the NEA to sunset any new emergency declaration unless it’s affirmatively approved by Congress within a specific time limit: 60 days in Rep. Reed’s bill, 30 in Sen. Lee’s, and just 72 hours under Paul-Wyden. Per Senator Lee’s bill, emergencies that garner congressional authorization terminate after one year unless Congress reauthorizes them; under the Paul-Wyden REPUBLIC Act, they need reauthorization every 90 days.&#13;<br /> &#13;<br /> The REPUBLIC Act improves on Senator Lee’s bill in several ways. In addition to imposing shorter time limits, it would terminate Trump’s border-wall emergency immediately; under the ARTICLE ONE act, the president would get a year to shift funds before congressional authorization is required. The Paul-Wyden bill also specifically repeals one of the most dangerous emergency powers lurking in the U.S. Code: Section 706 of the 1934 Communications Act, which allows the president to seize or shut down “‘any facility or station for wire communication’ upon his proclamation ‘that there exists a state or threat of war involving the United States.’” As Elizabeth Goitein <a href="https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/">notes</a>, “Section 706 could effectively function as a ‘kill switch’ in the U.S.—one that would be available to the president the moment he proclaimed a mere threat of war. It could also give the president power to assume control over U.S. internet traffic.” Paul-Wyden would kill the “kill switch.”&#13;<br /> &#13;<br /> Perhaps the bill’s sole defect is that it would leave the potential for IEEPA abuse very much alive. Drafted before Trump’s recent Mexican-tariff standoff, the REPUBLIC Act specifically exempts emergency declarations based on the IEEPA. They remain subject to the current NEA rules, renewable by the president yearly unless specifically repealed by Congress. &#13;<br /> &#13;<br /> The senators’ rationale for that is understandable: thirty of the <a href="https://www.scribd.com/document/413181491/Declared-Emergencies-Under-National-Emergencies-Act-as-of-May-17-2019#fullscreen&amp;from_embed">33 ongoing “national emergencies”</a> are IEEPA-based sanctions, most of them fairly uncontroversial. Without the carve-out, Paul-Wyden’s tighter time limits <a href="https://www.paul.senate.gov/news/sens-paul-and-wyden-introduce-republic-act-rein-presidential-national-emergency-powers">would</a> “require Congress to vote every 90 days to continue sanctions on North Korea, Iran, transnational crime organizations, etc.” &#13;<br /> &#13;<br /> If that’s too often, then allowing a one-year renewal after legislative approval would be a safer concession than exempting the IEEPA entirely. Trump’s tariff threat suggests we can’t always count on presidents to restrain themselves from abusing the broad powers the IEEPA cedes. &#13;<br /> &#13;<br /> Surprisingly enough, presidential restraint has been a key factor in keeping our emergency-powers regime from reaching its full potential for abuse. As Goitein <a href="https://www.scribd.com/document/400741850/Goitein-Written-Testimony-2-28-19-HJC-Hearing">testified recently</a>: &#13;<br /> &#13;</p> <blockquote><p>while nothing in the National Emergencies Act would prevent presidents from using emergency declarations to access dozens of special powers unrelated to the emergency at hand, presidents have not exploited that license. The Brennan Center’s research indicates that nearly 70% of the powers available to the president when he invokes a national emergency have never been invoked.</p> </blockquote> <p>Trump’s “norm-busting” on emergency powers threatens to change all that. Our 45th president has demonstrated that the U.S. Code is honeycombed with untapped unilateral powers. Few, if any, of his would-be successors are averse to <a href="https://www.sfchronicle.com/politics/article/Kamala-Harris-would-lean-on-presidential-power-13999461.php">rule by decree</a>, and the next president will almost surely be a smoother, more capable hand at managing executive-power grabs. Instead of hoping for presidential forebearance, Congress should impose the necessary restraints itself. &#13;<br /> &#13;<br /> Of course, President Trump can be expected to veto any law that ends his border-wall emergency or restricts his ability to use the IEEPA for tariffs. Effective emergency powers reform will itself require supermajority support. Their <a href="https://www.congress.gov/bill/116th-congress/house-joint-resolution/46/all-actions?overview=closed&amp;q=%7B%22roll-call-vote%22%3A%22all%22%7D">recent failure</a> to overturn Trump’s border-wall declaration suggests that Congress isn’t quite there yet. But given the rising threat of emergency governance, building that consensus is vital. &#13;<br /> &#13;<br />  &#13;<br /> &#13;<br />  &#13;<br /> &#13;<br />  </p> Mon, 24 Jun 2019 10:51:26 -0400 Gene Healy https://www.cato.org/emergency-exit-strategy The Right Call on Iran, But It Shouldn’t Be Trump’s Call https://www.cato.org/right-call-iran-it-shouldnt-be-trumps-call?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy <p>It says something about the way we go to war now that one almost feels like thanking President Trump for deciding, at the last minute, not to kill (at least) 150 people—and risk catastrophic conflict with Iran—in order to avenge one unmanned Northrop Grumman RQ-4 Global Hawk drone, downed by an Iranian missile. It wouldn’t be “proportionate,” he <a href="https://twitter.com/realdonaldtrump/status/1142055388965212161?s=21">said</a>, and he’s right—though that apparently <a href="https://www.nytimes.com/2019/06/20/world/middleeast/iran-us-drone.html">didn’t bother</a> National Security Adviser John Bolton, Secretary of State Mike Pompeo, and CIA Director Gina Haspel.&#13;<br /> &#13;<br /> While you’d never call the man cautious, much less <a href="https://www.washingtonpost.com/lifestyle/style/middle-east-civilian-deaths-have-soared-under-trump-and-the-media-mostly-shrug/2018/03/16/fc344968-2932-11e8-874b-d517e912f125_story.html?utm_term=.7fa50936f9df">squeamish about foreign casualties</a>, it’s not the first time Donald Trump has appeared that way compared to the putative “adults in the room” advising him. There are several such stories in Bob Woodward’s 2018 book <a href="https://www.amazon.com/Fear-Trump-White-Bob-Woodward-ebook/dp/B075RV48W3/ref=sr_1_1?gclid=EAIaIQobChMItsa_yaX74gIVAkCGCh2L6AaUEAAYASAAEgKi6fD_BwE&amp;hvadid=295505801996&amp;hvdev=t&amp;hvlocphy=9007533&amp;hvnetw=g&amp;hvpos=1t1&amp;hvqmt=e&amp;hvrand=17489927765572388547&amp;hvtargid=kwd-516114689501&amp;hydadcr=20557_10163432&amp;keywords=woodward%27s+fear&amp;qid=1561144806&amp;s=gateway&amp;sr=8-1">Fear: Trump in the White House</a>. In April 2017, for example, after Trump becomes enraged by video of Syrian children dying from a sarin gas attack, the Joint Chiefs present him with a range of airstrike options that includes a 200-missile attack aimed at taking out the bulk of the Syrian Air Force (and almost certainly killing large numbers of Russian advisers) Trump does the smarter thing and bombs an empty runway. The night of the strike, he calls a National Security Council meeting. Woodward writes that Trump was “unusually focused on the details…. What happens if a missile goes off course?” Trump’s so concerned about it, he demands that Mattis get him a secure line to the captains of both guided missile destroyers “are your guys the best at programming the missiles?” Have we got this right? &#13;<br /> &#13;<br /> True, Woodward recounts scenes that have you wishing someone would steal the nuclear launch codes off Trump’s desk, but more than once, the president appears more restrained and less bloodthirsty than the people advising him, like Sen. Lindsey Graham (R-SC), who urges Trump to hit North Korea, saying “If a million people are going to die, they’re going to die over there, not here.” “ That’s pretty cold,” was Trump’s response.&#13;<br /> &#13;<br /> And while it’s nice that President Trump periodically steps back from the brink, it’s insane and appalling that we’ve staked so much on the instincts and whims of one eminently fallible human being. That is not the way it was supposed to work: “This system will not hurry us into war,” James Wilson told delegates to the Pennsylvania ratifying convention in 1787, “it is calculated to guard against it. It will <a href="http://press-pubs.uchicago.edu/founders/documents/v1ch7s17.html">not be in the power of a single man</a>, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large.”&#13;<br /> &#13;<br /> From the Cold War through the Forever War on Terror, we’ve watched the emergence of a radically different regime, in which going to war is easy, frequent, and rarely debated. Lately, there are encouraging signs of resistance to that dynamic on Capitol Hill: yesterday’s <a href="https://www.nytimes.com/2019/06/20/us/politics/saudi-arms-sales.html?smid=nytcore-ios-share">Senate votes</a> to rescind military assistance to Saudi Arabia's murderous war on Yemen, Wednesday’s House <a href="https://theweek.com/speedreads/848114/house-votes-repeal-authorization-use-military-force-trump-reportedly-urges-representatives-tone-down-rhetoric-iran">vote to repeal</a> the 2001 Authorization for the Use of Military Force, that the administration seems to think <a href="https://www.cato.org/multimedia/cato-daily-podcast/dubious-legal-authority-push-war-iran">empowers the president</a> to go to war with Iran, nearly 18 years later. But <a href="https://www.cato.org/cato-handbook-policymakers/cato-handbook-policy-makers-8th-edition-2017/reclaiming-war-power">much more</a> needs to be done to restore democratic, constitutional checks on U.S. military power, before it’s too late.</p> Fri, 21 Jun 2019 16:52:00 -0400 Gene Healy https://www.cato.org/right-call-iran-it-shouldnt-be-trumps-call Dubious Legal Authority in the Push for War with Iran https://www.cato.org/cato-daily-podcast/dubious-legal-authority-push-war-iran?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy, Caleb O. Brown <p>Nearly two decades ago, one Congress voted once to strike back against those who perpetrated 9/11. Now that same legal authority is enabling a push to take the U.S. to war with Iran. Gene Healy comments.</p> Thu, 20 Jun 2019 14:45:00 -0400 Gene Healy, Caleb O. Brown https://www.cato.org/cato-daily-podcast/dubious-legal-authority-push-war-iran A New Presidential Power Grab over Mexican Tariffs https://www.cato.org/cato-daily-podcast/new-presidential-power-grab-over-mexican-tariffs?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy, Caleb O. Brown <p>Is the president's assertion of authority to unilaterally lay a five-percent tariff on all Mexican goods authorized under law and the Constitution? Gene Healy comments.</p> Sat, 08 Jun 2019 03:00:00 -0400 Gene Healy, Caleb O. Brown https://www.cato.org/cato-daily-podcast/new-presidential-power-grab-over-mexican-tariffs Censure Trump? What a Joke https://www.cato.org/commentary/censure-trump-what-joke?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy <div class="lead text-default"> <p data-page="1" target="_blank">With the Democratic base demanding action on the Mueller Report and the House leadership gun-shy on impeachment, the search is on for a viable alternative. A <a href="https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fthehill.com%2Fhomenews%2Fhouse%2F446759-democrats-keep-censure-for-trump-on-the-table&amp;data=02%7C01%7Cjgreenman%40nydailynews.com%7Cad95be5bbc1f452c5d5208d6eabc3692%7Cf7da0482aed242fa80233b240fb6598d%7C0%7C0%7C636954491426924567&amp;sdata=o2ggbvDZhTN%2BUMSJwLW5FbRHgkcmBzTBDdzMi7NUzVM%3D&amp;reserved=0" target="_blank">growing number</a> of House Democrats think congressional censure is that alternative. According to <a href="https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Ftwitter.com%2FRepRoKhanna%2Fstatus%2F1134110319612190720&amp;data=02%7C01%7Cjgreenman%40nydailynews.com%7Cad95be5bbc1f452c5d5208d6eabc3692%7Cf7da0482aed242fa80233b240fb6598d%7C0%7C0%7C636954491426934561&amp;sdata=tDdwfUOjxIh%2BHuW%2BD0utM5j6ir2GSB8i9YmMAGoPWmE%3D&amp;reserved=0" target="_blank">Rep. Ro Khanna</a> (D-CA), censuring President Trump will “send a clear message that the President’s unethical and illegal conduct is wrong and hold him accountable.”</p> </div> , <div class="text-default"> <p></p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The few successful censure resolutions against sitting presidents have mostly faded into obscurity.</p> </div> </div> </aside> , <div class="text-default"> <p>The Democratic majority certainly has the power to pass a sense-of-the-House resolution dressing down the president. That move would be just as constitutional as Congress declaring it “National Nurses’ Week” — and about as effective.</p> <p>Rep. Khanna touts censure as “a permanent mark on the president’s record,” but history suggests it’s more like a kid’s washable tattoo. The few successful censure resolutions against sitting presidents have mostly faded into obscurity.</p> <p>Four presidents have been formally reprimanded by the House or the Senate, according to <a href="https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.everycrsreport.com%2Freports%2FR45087.html%23_Toc505699549&amp;data=02%7C01%7Cjgreenman%40nydailynews.com%7Cad95be5bbc1f452c5d5208d6eabc3692%7Cf7da0482aed242fa80233b240fb6598d%7C0%7C0%7C636954491426944565&amp;sdata=4Vnwn4ruT5HJoEPsNMD6ivk5tD3%2B7Z2UZg06ljm2BRQ%3D&amp;reserved=0" target="_blank">the Congressional Research Service</a>: Andrew Jackson, James Buchanan, Abraham Lincoln and William Howard Taft. For Lincoln and Taft, the resolutions were watered down by amendment “so that they no longer clearly censured the president.” Buchanan and Jackson received sharper scoldings, but those episodes give us little reason to be impressed with censure’s bite.</p> <p>In 1860, as the secession crisis loomed, the House formally rebuked President James Buchanan for awarding military contracts based on “party relations,” a practice “dangerous to the public safety and deserving the reproof of this House.” The 15th president is widely considered one of <a href="https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.businessinsider.com%2Fwhy-james-buchanan-was-a-bad-president-2017-3&amp;data=02%7C01%7Cjgreenman%40nydailynews.com%7Cad95be5bbc1f452c5d5208d6eabc3692%7Cf7da0482aed242fa80233b240fb6598d%7C0%7C0%7C636954491426954553&amp;sdata=T%2B8zdm3nU6JoR4LxAdXITn6cyXfvtxRHU8QqQzy4t2k%3D&amp;reserved=0" target="_blank">the nation’s worst</a>, but few historians remember the military patronage kerfuffle, and even fewer would put that charge near the top of their list.</p> <p>The Senate’s 1834 censure of Andrew Jackson over the “Bank War” is somewhat better-known. By removing federal deposits from the Bank of the United States and refusing to provide a document demanded by the Senate, the resolution charged, Jackson had “assumed upon himself authority and power not conferred by the Constitution or the laws.” Not three years later, a new Jacksonian majority in the upper chamber had the measure <a href="https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.senate.gov%2Fartandhistory%2Fhistory%2Fminute%2FSenate_Reverses_A_Presidential_Censure.htm&amp;data=02%7C01%7Cjgreenman%40nydailynews.com%7Cad95be5bbc1f452c5d5208d6eabc3692%7Cf7da0482aed242fa80233b240fb6598d%7C0%7C0%7C636954491426964546&amp;sdata=WarUbswLthUsKR3KyTMlcg%2Ba%2FVz%2Fopm9D%2BoHxmip1aY%3D&amp;reserved=0" target="_blank">expunged</a> from the record.</p> <p>Unless you’re a historical trivia buff, you probably don’t remember these episodes. But most politically aware Americans <em>can</em> name the two presidents who were impeached — Andrew Johnson and Bill Clinton — and the one who resigned to avoid that fate, Richard Nixon. That ignominious distinction is central to all three presidencies. And although Johnson and Clinton avoided removal by the Senate, their legacies were permanently scarred. Even if it fails to produce a conviction in the Senate, impeachment by the House is censure with teeth.</p> <p data-page="2" target="_blank">Conventional wisdom holds that it’s a waste of time to impeach a president if it’s unlikely he’ll be removed. As House Judiciary Committee chairman Rep. Jerrold Nadler (D-N.Y.) <a href="https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.newyorker.com%2Fnews%2Fnews-desk%2Fthe-new-york-congressman-who-could-lead-an-impeachment-charge-against-trump&amp;data=02%7C01%7Cjgreenman%40nydailynews.com%7Cad95be5bbc1f452c5d5208d6eabc3692%7Cf7da0482aed242fa80233b240fb6598d%7C0%7C0%7C636954491426974541&amp;sdata=9MVThwTa%2FZcVJ0ucBqfbki9O5Bw48OiG84L6tz7WZyg%3D&amp;reserved=0" target="_blank">has put it</a>: “Yes, you could impeach the president in the House. But you need a two-thirds vote in the Senate, and what’s the point of it?”</p> <p>Actually, impeachment’s history shows that even failed attempts at removal can make their point stick. The Framers borrowed the institution from England, where, as historians Peter Hoffer and N.E.H. Hull <a href="https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fbooks.google.com%2Fbooks%3Fid%3DweexAAAAQBAJ%26lpg%3DPA234%26dq%3DHoffer%2520hull%2520impeachment%2520%2522itself%2520was%2520sufficient%2520warning%2522%26pg%3DPA234%23v%3Donepage%26q%3D%2522itself%2520was%2520sufficient%2520warning%2522%26f%3Dfalse&amp;data=02%7C01%7Cjgreenman%40nydailynews.com%7Cad95be5bbc1f452c5d5208d6eabc3692%7Cf7da0482aed242fa80233b240fb6598d%7C0%7C0%7C636954491426984539&amp;sdata=y6PoI5ECZFYkibFMnMnggbReR8p6dbCoXhvPW8lNhuY%3D&amp;reserved=0" target="_blank">explain</a>, "On many occasions the Commons did not even prosecute—the impeachment itself was sufficient warning or inconvenience to the accused.” In American practice as well, “failed” impeachments have successfully checked official abuse and vindicated important constitutional norms. In our first presidential impeachment, Andrew Johnson’s in 1868, removal wasn’t necessary to put an end to the president’s aggressive use of executive power to thwart Reconstruction.</p> <p>In Trump’s case, an impeachment inquiry could also help the House in ongoing court battles over executive privilege. The president has announced a policy of <a href="https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.nytimes.com%2F2019%2F04%2F24%2Fus%2Fpolitics%2Fdonald-trump-subpoenas.html%3Fmodule%3Dinline&amp;data=02%7C01%7Cjgreenman%40nydailynews.com%7Cad95be5bbc1f452c5d5208d6eabc3692%7Cf7da0482aed242fa80233b240fb6598d%7C0%7C0%7C636954491426994531&amp;sdata=bNwdI6KWN%2Fyf84VsXGNlkhKIwcwiFQl5%2Br5eGrDbjEQ%3D&amp;reserved=0" target="_blank">massive resistance</a> to congressional demands for information: “we’re fighting all the subpoenas.” But Congress’s right to compel evidence is <a href="https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.justsecurity.org%2F64318%2Fhow-impeachment-proceedings-would-strengthen-congresss-investigatory-powers%2F&amp;data=02%7C01%7Cjgreenman%40nydailynews.com%7Cad95be5bbc1f452c5d5208d6eabc3692%7Cf7da0482aed242fa80233b240fb6598d%7C0%7C0%7C636954491426994531&amp;sdata=Rqy7XFK7hgS5fVJDIDt8BRfhsQWx0IsYCEaydclt8II%3D&amp;reserved=0" target="_blank">at its strongest</a> when impeachment is in play.</p> <p>None of that means impeachment is the right course of action for Trump's opponents or the country as a whole. Speaker Nancy Pelosi (D-Ca.)  <a href="https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Ffivethirtyeight.com%2Ffeatures%2Fwould-democrats-really-face-a-backlash-if-they-impeached-trump%2F&amp;data=02%7C01%7Cjgreenman%40nydailynews.com%7Cad95be5bbc1f452c5d5208d6eabc3692%7Cf7da0482aed242fa80233b240fb6598d%7C0%7C0%7C636954491427004524&amp;sdata=FcGqgKwU%2FNi9xfPPZ8K98QPEyZzBo5wunxrbt20C6oA%3D&amp;reserved=0" target="_blank">may be right</a> to worry about the political costs of an all-consuming impeachment effort. And the argument for letting the voters decide directly gets stronger the closer we get to the 2020 election.</p> <p>But the House leadership shouldn't kid themselves, or the Democratic caucus, that a performative sense-of-the House resolution will hold the president accountable — it won't.</p> </div> Fri, 07 Jun 2019 11:59:00 -0400 Gene Healy https://www.cato.org/commentary/censure-trump-what-joke Impeach John Bolton? https://www.cato.org/impeach-john-bolton?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy <p>“We’re not looking for regime change [in Iran]. I want to make that clear,” <a href="https://www.washingtonpost.com/world/national-security/trump-says-he-is-not-seeking-regime-change-in-iran/2019/05/27/94d3053a-808d-11e9-933d-7501070ee669_story.html">President Trump said</a> Monday at a news conference in Japan, “nobody wants to see terrible things happen, especially me.” That’s good to hear, but has Trump's National Security Advisor gotten the message?&#13;<br /> &#13;<br /> It’s the <a href="https://www.latimes.com/opinion/op-ed/la-oe-kahl-wolfsthal-john-bolton-trump-north-korea-iran-venezuela-20190514-story.html">undeterrable John Bolton</a>, after all, who’s been at the epicenter of the rumors of war plaguing Washington in recent weeks. It’s Bolton who <a href="https://www.newsweek.com/trump-administration-iran-military-airstrikes-invasion-1425365">ordered up</a> a Pentagon plan for “retaliatory and offensive options” to check Iran, including a 120,000 troop surge to the region, and Bolton who <a href="https://slate.com/news-and-politics/2019/05/bolton-iran-carrier-abraham-lincoln-hormuz.html">blustered</a> that a recent carrier-strike-group deployment signaled America’s willingness to meet any Iranian challenge with “unrelenting force.” &#13;<br /> &#13;</p> <div data-embed-button="image" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="c8003c45-351c-4f00-a535-33cb6a18358f" class="align-right embedded-entity" data-langcode="und"> <p><img srcset="/sites/cato.org/files/styles/pubs/public/wp-content/uploads/bolton.jpg?itok=mMz84zHw 1x, /sites/cato.org/files/styles/pubs_2x/public/wp-content/uploads/bolton.jpg?itok=KVW090oG 1.5x" width="700" height="550" src="https://www.cato.org/sites/cato.org/files/styles/pubs/public/wp-content/uploads/bolton.jpg?itok=mMz84zHw" alt="Media Name: bolton.jpg" typeof="Image" class="component-image" /></p></div> <p>Trump is said to be <a href="https://www.washingtonpost.com/world/national-security/trump-risks-credibility-with-policy-that-veers-between-threats-and-inaction/2019/05/17/e6585d56-77fa-11e9-bd25-c989555e7766_story.html?noredirect=on&amp;utm_term=.de996b93b1a2">frustrated</a> by his aide’s brinksmanship, privately cracking that “if it was up to John, we’d be in four wars now.” “In recent days,” the <em>New York Times</em> <a href="https://www.nytimes.com/2019/05/28/us/politics/trump-john-bolton-north-korea-iran.html">reports this morning</a>, “the disconnect between Mr. Trump and his national security adviser has spilled over into public,” with the president undercutting Bolton on Iran and North Korea. But Bolton still has his job. Ironically enough, it turns out that the longtime “Apprentice” host is <a href="https://www.washingtonpost.com/outlook/2018/09/25/president-trump-is-afraid-fire-people/?utm_term=.96a4c95a3b2e">gun-shy about firing people</a>.  &#13;<br /> &#13;<br /> Is there anything Congress can do about a rogue presidential appointee that the president won’t fire? The progressive foreign-policy group Win Without War has an interesting proposal: they’re running a petition drive: <a href="http://act.winwithoutwar.org/sign/tell-congress-impeach-john-bolton/?source=tw">“Tell Congress: Impeach John Bolton!”</a>  &#13;<br /> &#13;<br /> Can Bolton be impeached? The answer turns on whether the National Security Advisor is one of the “civil Officers of the United States” to which <a href="http://press-pubs.uchicago.edu/founders/tocs/a1_2_5.html">Article II, sec. 4</a> applies. The term isn’t defined in the Constitution, and there’s little precedent to go on, the House having impeached just one executive-branch official below the presidential level in 230 years: Gilded-Age Secretary of War <a href="https://www.senate.gov/artandhistory/history/minute/War_Secretarys_Impeachment_Trial.htm">William Belknap</a>. As the Congressional Research Service <a href="https://www.everycrsreport.com/reports/R44260.html#_Toc433996055">notes</a>, it’s something of an open question “whether Congress may impeach and remove subordinate, non-Cabinet level executive branch officials.” &#13;<br /> &#13;<br /> Still, the fact that Bolton, unlike a Cabinet secretary, doesn’t hold a <a href="http://dearcolleague.us/2018/03/require-senate-confirmation-of-the-national-security-advisor-3/">Senate-confirmed position</a> is a technicality that shouldn’t protect him, especially when it’s clear—even <a href="https://www.washingtonpost.com/politics/a-frustrated-trump-questions-his-administrations-venezuela-strategy/2019/05/08/ad51561a-71a7-11e9-9f06-5fc2ee80027a_story.html">to the president</a>—that his recklessness might drag us into an unnecessary war. Impeachment arose in England as a means of striking ministers close to the Crown, including those who gave <a href="https://books.google.com/books?id=UT0_MCzwRW4C&amp;lpg=PA75&amp;ots=hk_29IKcjb&amp;dq=impeachment%20%22pernicious%20advice%20to%20the%20crown%22&amp;pg=PA75#v=onepage&amp;q=%22pernicious%20advice%20to%20the%20crown%22&amp;f=false">“pernicious” foreign policy advice</a>. Early American constitutional commentators like <a href="http://press-pubs.uchicago.edu/founders/documents/a1_2_5s17.html">William Rawle</a> and <a href="https://books.google.com/books?id=lsNg7kZw1-sC&amp;lpg=PA558&amp;ots=CjCyuesYR1&amp;dq=Joseph%20Story%20%22in%20the%20highest%20or%20in%20the%20lowest%20departments%20of%20the%20government%2C%20with%20the%20exception%20of%20officers%20in%20the%20army%20and%20navy%2C%20are%20properly%20civil%20officers%20within%20the%20meaning%20of%20the%20constitution%2C%20and%20liable%20to%20impeachment.%22&amp;pg=PA559#v=onepage&amp;q=Joseph%20Story%20%22in%20the%20highest%20or%20in%20the%20lowest%20departments%20of%20the%20government,%20with%20the%20exception%20of%20officers%20in%20the%20army%20and%20navy,%20are%20properly%20civil%20officers%20within%20the%20meaning%20of%20the%20constitution,%20and%20liable%20to%20impeachment.%22&amp;f=false">Justice Joseph Story</a> believed the power extended to “all” federal executive officers. And as James Madison <a href="https://books.google.com/books?id=PMpgDwAAQBAJ&amp;lpg=PA184&amp;ots=v38DyeiPiu&amp;dq=%E2%80%9CIf%20an%20unworthy%20man%20be%20continued%20in%20office%20by%20an%20unworthy%20president%22&amp;pg=PA184#v=onepage&amp;q=%E2%80%9CIf%20an%20unworthy%20man%20be%20continued%20in%20office%20by%20an%20unworthy%20president%22&amp;f=false">explained</a> in the first Congress: “If an unworthy man be continued in office by an unworthy president, the house of representatives can at any time impeach [that officer], and the senate can remove him.”&#13;<br /> &#13;<br /> In practice, it’s rarely been necessary to go that far. “The issue has almost invariably proven moot,” Frank Bowman explains in his comprehensive new volume <a href="https://www.amazon.com/dp/1108481051/?tag=slatmaga-20"><em>High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump</em></a>. Historically, “any appointee whose continued service was so politically toxic as to provoke a serious effort at impeachment has been shuffled off the stage” when the president demands his or her resignation.&#13;<br /> &#13;<br /> A resolution to impeach Bolton, something any member of the House <a href="https://www.everycrsreport.com/reports/R44260.html#_Toc433996067">could introduce</a>, might serve as the shot across the bow that convinces Trump it’s time to clean his own house. It needn’t make it to the floor to be effective: merely securing enough cosponsors could be enough. On the other hand, such a move might cause Trump to dig in his heels—with a president this mercurial it’s hard to tell.&#13;<br /> &#13;</p> <p>However, there’s another way Congress can use the threat of impeachment to deter an illegal and unnecessary war. As I explained <a href="https://www.theamericanconservative.com/articles/impeachment-should-be-on-the-table-if-trump-bombs-iran/">in the <em>American Conservative</em></a> last week, the House could pass a <a href="https://www.house.gov/the-house-explained/the-legislative-process/bills-resolutions">simple resolution</a> “expressing the sense of the House of Representatives that the use of offensive military force against Iran without prior and clear authorization of an Act of Congress constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.” &#13;<br /> &#13;<br /> The  <a href="https://www.newsobserver.com/news/politics-government/article225147640.html">late, great Rep. Walter Jones</a> (R-NC) proposed <a href="https://www.theatlantic.com/politics/archive/2012/03/a-resolution-to-impeach-is-ready-if-obama-goes-to-war-without-congress/254366/">a similar measure</a> in President Obama’s second term, when the administration publicly contemplated airstrikes on Syria. Jones introduced <a href="https://www.congress.gov/bill/112th-congress/house-concurrent-resolution/107/text">a concurrent resolution</a> stating that “except in response to an actual or imminent attack against the territory of the United States, the use of offensive military force by a President without prior and clear authorization of an Act of Congress” is an impeachable offense. The Jones resolution only secured a handful of cosponsors and proved unnecessary when President Obama decided to <a href="https://www.nytimes.com/2013/09/01/world/middleeast/syria.html">seek congressional authorization</a> for airstrikes, then <a href="https://www.bbc.com/news/world-middle-east-23876085">abandoned the effort</a> entirely. &#13;<br /> &#13;<br /> Last summer, Jones and Rep. Tulsi Gabbard (D-HI) revived the idea of pre-defining unauthorized warmaking as an impeachable offense. On the theory that “the law should warn before it strikes,” <a href="https://www.congress.gov/bill/115th-congress/house-resolution/922/text">House Resolution 922</a> defined undeclared wars as high crimes and misdemeanors under Article II, section 4. Constitutional lawyer <a href="https://www.thenation.com/article/constitutional-lawyer-bruce-fein-effort-stop-presidential-wars/">Bruce Fein</a>, who originally proposed the idea and helped draft the bill, described its chances of passing as “remote in the short run. Its immediate purpose is to spark a public and congressional debate about war powers.” &#13;<br /> &#13;<br /> The prospect of war with Iran ought to be <a href="https://www.washingtonpost.com/world/2019/05/14/conflict-with-iran-would-not-be-like-iraq-war-itd-be-worse/?utm_term=.e902d76cda8e">all the spark that’s needed</a>. As Gabbard recently noted, the conflict Bolton covets would make the Iraq War “<a href="https://www.foxnews.com/politics/rep-gabbard-tells-tucker-carlson-war-with-iran-would-be-devastating">look like a cakewalk</a>—[it] would take far more American lives, it would cost more civilian lives across the region."&#13;<br /> &#13;<br /> The current House leadership fears that an impeachment drive would be a “divisive” distraction. Instead, Speaker Nancy Pelosi (D-CA) <a href="https://www.washingtonpost.com/politics/house-democrats-fall-in-line-with-pelosis-no-impeachment-strategydespite-trumps-defiance/2019/05/15/ce888e1a-7725-11e9-b3f5-5673edf2d127_story.html?utm_term=.4969dc1df273">told House Democrats</a> last week, “we need to show [voters] that we are doing all of these other things that they care about so much” (whatever those are). Pelosi <a href="https://fivethirtyeight.com/features/would-democrats-really-face-a-backlash-if-they-impeached-trump/">may be right</a> to worry about the political costs of an all-consuming impeachment effort in the run-up to the 2020 election. But a resolution along the lines proposed by Jones and Gabbard doesn’t open an impeachment inquiry. It wouldn’t distract and shouldn't divide--unless one considers it "divisive" for Congress to defend <a href="https://oll.libertyfund.org/quotes/236">its core prerogatives</a> and head off an illegal war.  &#13;<br /> &#13;<br /> True, a sense of the House resolution wouldn’t have the force of law: it’s a mere statement of intent by the members who sign on. But it could serve as fair warning to the president, and a precommitment device for the House: a public pledge to take action should the administration cross the line. In politics as in war, deterrence sometimes requires a credible threat.  &#13;<br /> &#13;<br />  </p> Wed, 29 May 2019 13:25:00 -0400 Gene Healy https://www.cato.org/impeach-john-bolton Amash Note on Impeachment https://www.cato.org/amash-note-impeachment?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy <p>On May 18, in the first of three <a href="https://twitter.com/justinamash/status/1129831615952236546">long Twitter threads</a>, Rep. Justin Amash (R-MI) announced his conclusion that “President Trump has engaged in impeachable conduct.” That tweetstorm unleashed a… different kind of storm from his fellow Republicans. The self-styled House Freedom Caucus <a href="https://www.nationalreview.com/news/house-freedom-caucus-condemns-amash-for-accusing-trump-of-impeachable-conduct/">voted unanimously to condemn</a> Amash, an <a href="https://www.foxnews.com/politics/justin-amash-gop-primary-jim-lower-impeachment">irate</a> Michigan state rep. announced he’d challenge the congressman in the GOP primary, and, of course, there was President Trump, <a href="https://twitter.com/realdonaldtrump/status/1130109633673211906?s=21">fuming</a> that Amash is “a total lightweight” and “a loser who sadly plays right into our opponents hands!”  &#13;<br /> &#13;<br /> About the only GOP officeholder with anything nice to say was Sen. Mitt Romney (R-UT). Romney made sure to emphasize his disagreement with Amash, but praised him for <a href="https://www.newsweek.com/mitt-romney-calls-rep-amashs-trump-impeachment-courageous-doesnt-support-1429775">“a courageous statement.”</a> Coming from the on-again, off-again Trump critic, “courageous” sounded a bit like a tell (subtext: “I wish I had the guts!”).&#13;<br /> &#13;<br /> Whatever one thinks of President Trump or the other personalities involved, the scope of high crimes and misdemeanors is a <em>constitutional</em> question, and shouldn’t be analyzed through a Red or Blue lens. As I argue in my recent Cato study on impeachment, <a href="https://www.cato.org/publications/white-paper/indispensable-remedy-broad-scope-constitutions-impeachment-power">Indispensible Remedy</a>, if you raise the bar to save a president you like—or lower it to nail one you hate—you may come to regret it when power changes hands.&#13;<br /> &#13;<br /> Amash, who’s long used social media to explain the constitutional reasoning behind the positions he takes, makes a number of claims about the scope of Article II, section 4. As it happens, he has a better grasp of the constitutional issues surrounding impeachment than most of his colleagues on both sides of the aisle. I’ll highlight and elaborate on a few of his key points below. &#13;<br /> &#13;</p> <div data-embed-button="embed" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="da5a2d73-c03e-43e4-bd8e-9156ff2b7a78" data-langcode="und" class="embedded-entity"> <div class="embed embed--twitter js-embed js-embed--twitter"> <blockquote class="twitter-tweet"><p lang="en" dir="ltr" lang="en" lang="en">Under our Constitution, the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” While “high Crimes and Misdemeanors” is not defined, the context implies conduct that violates the public trust.</p> <p>— Justin Amash (@justinamash) <a href="https://twitter.com/justinamash/status/1129831621891436544?ref_src=twsrc%5Etfw">May 18, 2019</a></p></blockquote> </div> </div> <p>With his emphasis on “the public trust,” our least Hamiltonian congressman is channelling Alexander Hamilton in <a href="http://avalon.law.yale.edu/18th_century/fed65.asp">Federalist 65</a>. In that essay, Hamilton described impeachment as a remedy aimed at:&#13;<br /> &#13;</p> <blockquote><p>those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. </p> </blockquote> <p>But that broad understanding wasn’t a point much in dispute among the Framers. James Madison described impeachment as an <a href="http://oll.libertyfund.org/titles/farrand-the-records-of-the-federal-convention-of-1787-vol-2#Farrand_0544-02_427">“indispensable”</a> provision for “defending the Community against the incapacity, negligence, or perfidy of the chief Magistrate.” And throughout American history, federal officers have been impeached for offenses ranging from petty corruption, to neglect of duty, to withholding information from Congress, and “behaving in a manner <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/watergatedoc_6.htm#behaving">grossly incompatible</a> with the proper function and purpose of the office.” When Amash says that impeachment can extend to “careless, abusive, corrupt, or otherwise dishonorable conduct,” it may sound sweeping, but he’s on solid ground.&#13;<br /> &#13;</p> <p>Amash says Trump’s defenders are wrong when &#13;<br /> &#13;</p> <div data-embed-button="embed" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="ee120c48-5027-42fc-8576-1e3d3d9c99db" data-langcode="und" class="embedded-entity"> <div class="embed embed--twitter js-embed js-embed--twitter"> <blockquote class="twitter-tweet"><p lang="en" dir="ltr" lang="en" lang="en">4. They imply “high Crimes and Misdemeanors” requires charges of a statutory crime or misdemeanor.</p> <p>— Justin Amash (@justinamash) <a href="https://twitter.com/justinamash/status/1130533770749186055?ref_src=twsrc%5Etfw">May 20, 2019</a></p></blockquote> </div> </div> <p>He’s right here too. Had the Framers restricted impeachable offenses to crimes, impeachment would have been a dead letter from the start. In the early years of the republic, there were <a href="http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2045&amp;context=faculty_scholarship">hardly any federal crimes</a> on the books. As Justice Joseph Story noted in 1833, in the impeachment cases since ratification, “no one of the charges has rested upon any statutable misdemeanours.” And throughout our entire constitutional history, according the<a href="https://www.everycrsreport.com/reports/R44260.html#_Toc433996057"> Congressional Research Service</a>, fewer than a third of the impeachments approved by the House “have specifically invoked a criminal statute or used the term ‘crime.’” (For more, see: “<a href="https://www.cato.org/blog/overcriminalization-impeachment">The Overcriminalization of Impeachment</a>”).&#13;<br /> &#13;<br /> In fact, exercises of constitutional powers such as the president’s power to remove subordinate officials and grant pardons, can be grounds for impeachment, even if the president has committed no crime. &#13;<br /> &#13;</p> <div data-embed-button="embed" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="9578bbdb-f761-4c2a-9dcc-4ac4313aa2b4" data-langcode="und" class="embedded-entity"> <div class="embed embed--twitter js-embed js-embed--twitter"> <blockquote class="twitter-tweet"><p lang="en" dir="ltr" lang="en" lang="en">The president has authority to fire federal officials, direct his subordinates, and grant pardons, but he cannot do so for corrupt purposes; otherwise, he would always be allowed to shut down any investigation into himself or his associates, which would put him above the law.</p> <p>— Justin Amash (@justinamash) <a href="https://twitter.com/justinamash/status/1131605833190653952?ref_src=twsrc%5Etfw">May 23, 2019</a></p></blockquote> </div> </div> <p>The ultimate remedy would be necessary in some cases, the Framers believed, to deter presidents from corrupt misuse of the broad powers the Constitution grants him. Madison, for example, insisted that the president could be impeached for “<a href="http://www.constitution.org/jm/17890616_removal.htm">wanton removal</a> of meritorious officers,” or for using the pardon power to <a href="https://oll.libertyfund.org/titles/1907">shelter</a> coconspirators. (For more, see <a href="https://object.cato.org/sites/cato.org/files/pubs/pdf/gene-healy-indispensable-remedy-white-paper.pdf">Indispensable Remedy</a>, pp. 69-75 and <a href="https://www.cato.org/blog/complete-power-pardon-sole-power-impeachment">“The Complete Power to Pardon” and “the Sole Power of Impeachment”</a> &#13;<br /> &#13;</p> <div data-embed-button="embed" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="043477dc-204c-4b0d-8a6f-976337ce941c" data-langcode="und" class="embedded-entity"> <div class="embed embed--twitter js-embed js-embed--twitter"> <blockquote class="twitter-tweet"><p lang="en" dir="ltr" lang="en" lang="en">While impeachment should be undertaken only in extraordinary circumstances, the risk we face in an environment of extreme partisanship is not that Congress will employ it as a remedy too often but rather that Congress will employ it so rarely that it cannot deter misconduct.</p> <p>— Justin Amash (@justinamash) <a href="https://twitter.com/justinamash/status/1129831625691414528?ref_src=twsrc%5Etfw">May 18, 2019</a></p></blockquote> </div> </div> <p>American public intellectuals frequently warn that serious consideration of impeachment in any one case will open a Pandora’s Box, leading to, as <a href="https://thehill.com/opinion/judiciary/425910-dershowitz-to-the-atlantic-do-not-violate-constitution-to-safeguard-it">Alan Dershowitz</a> puts it, the “weaponization of impeachment as a partisan political tactic to be deployed by both parties.”&#13;<br /> &#13;<br /> There’s very little evidence for that proposition. After the Johnson impeachment we went 106 years without another serious effort to remove a president. In the 45 years since Nixon resigned, we’ve had only one such attempt. The supermajority requirement for removal, combined with the effort it takes to launch an impeachment inquiry and see it through, will always remain a significant disincentive to using the “indispensable remedy” too casually.  &#13;<br /> &#13;<br /> What gets far less attention is the risk associated with our longstanding <a href="https://www.cato-unbound.org/2019/03/21/gene-healy/high-anxiety-impeachment-we-dont-have-give">impeachment phobia</a>: that “Congress will employ it so rarely that it cannot deter misconduct.” As Keith Whittington <a href="https://www.lawfareblog.com/what-downside-not-impeaching">has written</a>, “if Congress tolerates officers who commit high crimes and misdemeanors, it sends a signal to other officers that those crimes are not beyond the pale.” In politics, as in economics, incentives matter: lower the cost of bad behavior and you’ll likely get more of it. Amash is right about that too. </p> Fri, 24 May 2019 12:17:00 -0400 Gene Healy https://www.cato.org/amash-note-impeachment Impeachment Should Be on the Table If Trump Bombs Iran https://www.cato.org/commentary/impeachment-should-be-table-trump-bombs-iran?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy <div class="lead text-default"> <p>We’re told that the Trump administration’s brinksmanship on Iran stems from <a href="https://www.washingtonpost.com/news/powerpost/paloma/powerup/2019/05/16/powerup-john-bolton-and-trump-are-in-a-different-place-on-iran-as-tensions-rise/5cdc79411ad2e5092403d1e4/?utm_term=.a28c5c8e9931" target="_blank">a power grab</a> by President Donald Trump’s undeterrable national security advisor, John Bolton. And it’s true that Bolton has never met <a href="https://www.latimes.com/opinion/op-ed/la-oe-kahl-wolfsthal-john-bolton-trump-north-korea-iran-venezuela-20190514-story.html" target="_blank">a “preventive” war he didn’t like</a> and that there’s every reason to suspect him of scheming to create an excuse for one. But lately it’s getting hard to distinguish President Trump from <a href="https://www.newsweek.com/president-bolton-john-donald-trump-nickname-1221927" target="_blank">“President Bolton.”</a> “If Iran wants to fight, that will be the official end of Iran,” Trump <a href="https://twitter.com/realdonaldtrump/status/1130207891049332737" target="_blank">rage-tweeted Sunday</a>. “Never threaten the United States again!”</p> </div> , <div class="text-default"> <p>If the administration can’t be convinced to stand down, the House of Representatives should launch a preemptive strike of its own. They should credibly threaten to impeach the president if he goes to war without congressional authorization.</p> <p>Waging war without legal authority is an impeachable offense, if anything is. Impeachment was designed to thwart <a href="https://oll.libertyfund.org/titles/1786#Farrand_0544-02_4165" target="_blank">attempts to subvert the Constitution</a>; congressional control of the war power was one of that document’s core guarantees. “In no part of the constitution is more wisdom to be found,” James Madison <a href="https://oll.libertyfund.org/quotes/236" target="_blank">affirmed</a>, “than in <a href="http://press-pubs.uchicago.edu/founders/tocs/a1_8_11.html" target="_blank">the clause</a> which confides the question of war or peace to the legislature, and not to the executive department.”</p> <p></p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Without Congress's approval, he has no legal authority to start a war, no matter what John Bolton seems to think.</p> </div> </div> </aside> , <div class="text-default"> <p>The first federal impeachment case, brought less than a decade after the Constitution’s ratification, centered on charges of unauthorized warmaking. In 1797, the House impeached Tennessee Senator William Blount for conspiring to raise a private army for <a href="https://books.google.com/books?id=8F5JAQAAMAAJ&amp;pg=PA151&amp;lpg=PA151&amp;dq=impeachment+%22william+blount%22+%22military+hostile+expedition%22&amp;source=bl&amp;ots=kjPx_NlZk9&amp;sig=ACfU3U1K2PPcduSXlbwO1ldI8c8sv1F8pQ&amp;hl=en&amp;sa=X&amp;ved=2ahUKEwiS9Jng8aziAhXFjFkKHRgqAXcQ6AEwCHoECAYQAQ#v=onepage&amp;q=impeachment%20%22william%20blount%22%20%22military%20hostile%20expedition%22&amp;f=false" target="_blank">“a military hostile expedition”</a> against Spanish-held Louisiana and Florida, “in violation of the obligations of neutrality, and against the laws of the United States.” In the Founding era, usurpation of the war power was considered serious enough to merit the ultimate constitutional remedy.</p> <p>No president has yet been impeached for illegal warmaking, but Richard Nixon came closest. In 1974, the House Judiciary Committee debated impeaching Nixon for conducting a secret bombing campaign in Cambodia “in derogation of the power of the Congress to declare war.” The article never made it into the final charges, possibly scuttled by Democratic leadership out of fear of <a href="https://books.google.com/books?id=nsCkCQAAQBAJ&amp;pg=PA168&amp;lpg=PA168&amp;dq=%E2%80%9Ca+full+inquiry+would+have+demonstrated+that+a+few+prominent+members+of+their+party+had+known+about+the+secret+bombing+at+the+time.%E2%80%9D&amp;source=bl&amp;ots=qq9b7mDu5Y&amp;sig=ACfU3U1VP5-Ib_uAZqHCEJcDy7OlE1Zsog&amp;hl=en&amp;sa=X&amp;ved=2ahUKEwix2ZuOgpziAhWMdd8KHbYUCrcQ6AEwAHoECAIQAQ#v=onepage&amp;q=%E2%80%9Ca%20full%20inquiry%20would%20have%20demonstrated%20that%20a%20few%20prominent%20members%20of%20their%20party%20had%20known%20about%20the%20secret%20bombing%20at%20the%20time.%E2%80%9D&amp;f=false" target="_blank">revealing</a> “that a few prominent members of their party had known about the secret bombing at the time.” As Congressman William Hungate <a href="https://books.google.com/books?id=ngk5cEryNUoC&amp;lpg=PA104&amp;ots=-b-QKCLaP0&amp;dq=%E2%80%9CIt%E2%80%99s%20kind%20of%20hard%20to%20live%20with%20yourself%20when%20you%20impeach%20a%20guy%20for%20tapping%20telephones%20and%20not%20for%20making%20war%20without%20authorization.%E2%80%9D&amp;pg=PA104#v=onepage&amp;q=%E2%80%9CIt%E2%80%99s%20kind%20of%20hard%20to%20live%20with%20yourself%20when%20you%20impeach%20a%20guy%20for%20tapping%20telephones%20and%20not%20for%20making%20war%20without%20authorization.%E2%80%9D&amp;f=false" target="_blank">put it</a> afterwards: “It’s kind of hard to live with yourself when you impeach a guy for tapping telephones and not for making war without authorization.”</p> <p>Current members of Congress should find it hard to live with themselves if they don’t do something to prevent the Trump administration from dragging us into an illegal and unnecessary war. Yet so far the congressional response has been limited to <a href="https://www.huffpost.com/entry/iran-trump-congress-bolton-war_n_5cdb3186e4b0b539220310bc?guccounter=1&amp;guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&amp;guce_referrer_sig=AQAAAJxJHjKuxUuwdWXupUv3R9q0b11QKRTizPYaF3t38n-uGXdkIynHbG4ZGA8NtG112QQGbzpN1eL3qRg7W0e970yBlrVEwARriP4L3cHk-h3s1t5Mtx4ye2G_9nH14nnhYxOaXsbYtnt1rWNtytqtOpSFRdr3Yri6Y9pgrLvj4VkY" target="_blank">ineffectual grousing</a> and the introduction of a few bills that are wholly inadequate to the task at hand.</p> <p>Instead the House should consider passing a resolution “expressing the sense of the House of Representatives that the use of offensive military force against Iran without prior and clear authorization of an Act of Congress constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.”</p> <p>The <a href="https://www.newsobserver.com/news/politics-government/article225147640.html" target="_blank">late, great Congressman Walter Jones</a>, long one of the most jealous guardians of Congress’s power “to declare War,” proposed <a href="https://www.theatlantic.com/politics/archive/2012/03/a-resolution-to-impeach-is-ready-if-obama-goes-to-war-without-congress/254366/" target="_blank">a similar measure</a> during President Obama’s second term, when the administration was publicly contemplating airstrikes on Syria. Jones introduced <a href="https://www.congress.gov/bill/112th-congress/house-concurrent-resolution/107/text" target="_blank">a concurrent resolution</a> stating that “except in response to an actual or imminent attack against the territory of the United States, the use of offensive military force by a President without prior and clear authorization of an Act of Congress” is an impeachable offense.</p> <p>The Jones resolution only secured a handful of cosponsors and proved unnecessary in any event, when President Obama decided to <a href="https://www.nytimes.com/2013/09/01/world/middleeast/syria.html" target="_blank">seek congressional authorization</a> for airstrikes, then <a href="https://www.bbc.com/news/world-middle-east-23876085" target="_blank">abandoned the effort</a> entirely. The stakes are far higher now.</p> <p>The current House leadership is notably gun-shy about impeachment. But over the last two years, House Democrats have threatened to impeach Trump for much less. In the previous Congress, for example, Congressman Steve Cohen introduced articles charging Trump with, among other things, overspending on <a href="https://www.commercialappeal.com/story/opinion/contributors/2017/11/21/impeach-trump-sake-republic/881657001/" target="_blank">golf cart rentals at Mar-a-Lago</a>. In January 2018, Congressman Al Green got <a href="https://thehill.com/blogs/floor-action/house/369730-house-rejects-democratic-effort-to-impeach-trump-as-shutdown-looms" target="_blank">66 Democratic votes</a> to move forward on a resolution to <a href="https://www.congress.gov/bill/115th-congress/house-resolution/705/text" target="_blank">impeach Trump</a> for “attempting to convert his bigoted statements into United States policy” in the form of the travel ban and the ban on transgender troops.</p> <p>Surely, more Democrats—and even a few Republicans, like Congressman Justin Amash—could rouse themselves to threaten impeachment to avoid a disastrous war in violation of a core constitutional guarantee.</p> <p>Other options on the table. <a href="https://www.congress.gov/bill/116th-congress/house-bill/2354/text?q=%7B%22search%22%3A%5B%22iran%22%5D%7D&amp;r=11&amp;s=2" target="_blank">H.R. 2354</a>, barring funds for military action against Iran absent congressional authorization, can—and would—be vetoed by the president. A sense of the House resolution <a href="https://www.house.gov/the-house-explained/the-legislative-process/bills-resolutions" target="_blank">could not</a>. It wouldn’t have the force of law, but it would be more than mere symbolism: a shot across the administration’s bow and fair warning to the president. Moreover, a resolution publicly declaring war with Iran an impeachable offense could serve as a precommitment device for the House, a public pledge to take action should he cross that line.</p> <p>Only two presidents have ever been impeached by the House, yet others still fear joining their ranks. Trump has claimed he’s “<a href="https://thehill.com/homenews/administration/440003-trump-not-even-a-little-bit-worried-about-impeachment" target="_blank">not even a little bit</a>” worried about the prospect, but <a href="https://books.google.com/books?id=wKRkDwAAQBAJ&amp;lpg=PT200&amp;ots=slSalsY0RN&amp;dq=woodward%20fear%20%E2%80%9CTrump%20was%20about%20to%20lose%20it%20at%20the%20mention%20of%20impeachment.%E2%80%9D&amp;pg=PT200#v=onepage&amp;q=woodward%20fear%20%E2%80%9CTrump%20was%20about%20to%20lose%20it%20at%20the%20mention%20of%20impeachment.%E2%80%9D&amp;f=false" target="_blank">insider accounts</a> and his public <a href="https://mobile.twitter.com/search?q=Impeach%20(from%3Arealdonaldtrump)&amp;src=typed_query" target="_blank">Twitter</a> <a href="https://mobile.twitter.com/search?q=Impeachment%20(from%3Arealdonaldtrump)&amp;src=typed_query" target="_blank">feed</a> tell a different story. Earlier this week, he <a href="https://twitter.com/realDonaldTrump/status/1130109633673211906?s=20" target="_blank">blew up</a> at Representative Amash for opining that he’d engaged in impeachable conduct: “Justin is a loser who sadly plays right into our opponents hands!”</p> <p>Impeachment’s purpose isn’t primarily to punish abuses after the fact—that would be cold comfort here—but to prevent damage from being done in the first place. “It will not be the only means of punishing misconduct, but it will prevent misconduct,” future Supreme Court justice <a href="http://press-pubs.uchicago.edu/founders/documents/a1_2_5s13.html" target="_blank">James Iredell remarked</a> during the ratification debates in 1788. “Although he may be a man of no principle, the very terror of punishment will perhaps deter him.” But in law as in war, deterrence sometimes requires a credible threat.</p> </div> Wed, 22 May 2019 08:42:00 -0400 Gene Healy https://www.cato.org/commentary/impeachment-should-be-table-trump-bombs-iran Sweeping Executive Privilege vs. Congressional Subpoenas https://www.cato.org/cato-daily-podcast/sweeping-executive-privilege-vs-congressional-subpoenas?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy, Caleb O. Brown <p>The President asserts a broad executive privilege in fighting Congressional subpoenas. It's not a privilege rooted in the Constitution, so where does it come from? Gene Healy comments.</p> Wed, 22 May 2019 08:02:00 -0400 Gene Healy, Caleb O. Brown https://www.cato.org/cato-daily-podcast/sweeping-executive-privilege-vs-congressional-subpoenas Gene Healy discusses the continuing struggle between the executive branch and the legislative branch on ABC WVII's Good Morning Maine https://www.cato.org/media-highlights-tv/gene-healy-discusses-continuing-struggle-between-executive-branch-0?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Thu, 02 May 2019 12:54:00 -0400 Gene Healy https://www.cato.org/media-highlights-tv/gene-healy-discusses-continuing-struggle-between-executive-branch-0 Gene Healy discusses the continuing struggle between the executive branch and the legislative branch on FOX's Special Report with Bret Baier https://www.cato.org/media-highlights-tv/gene-healy-discusses-continuing-struggle-between-executive-branch?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Wed, 01 May 2019 12:49:00 -0400 Gene Healy https://www.cato.org/media-highlights-tv/gene-healy-discusses-continuing-struggle-between-executive-branch Criminal Obstruction vs. Impeachable Obstruction https://www.cato.org/criminal-obstruction-vs-impeachable-obstruction?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy <p>Earlier this month, the effort to impeach President Trump looked like a #Resistance fantasy. The release of the Mueller Report seems to have shifted the debate dramatically. This week, Democratic presidential contenders Sen. Kamala Harris and Sen. Elizabeth Warren <a href="https://www.usatoday.com/story/news/politics/2019/04/24/2020-democratic-presidential-candidates-impeaching-donald-trump/3563424002/">called on the House to impeach Trump</a> for obstruction of justice.  &#13;<br /> &#13;</p> <div data-embed-button="image" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="9be81303-6bcd-4e24-b0c1-bcb3e9661818" class="align-right embedded-entity" data-langcode="und"> <p><img srcset="/sites/cato.org/files/styles/pubs/public/wp-content/uploads/mueller_report.jpg?itok=3eMTQE1_ 1x, /sites/cato.org/files/styles/pubs_2x/public/wp-content/uploads/mueller_report.jpg?itok=xIdblO2W 1.5x" width="700" height="394" src="https://www.cato.org/sites/cato.org/files/styles/pubs/public/wp-content/uploads/mueller_report.jpg?itok=3eMTQE1_" alt="Media Name: mueller_report.jpg" typeof="Image" class="component-image" /></p></div> <p>Is obstruction of justice an impeachable offense? Yes. It’s one of the few offenses where we have presidential precedent. Obstruction charges played a central role in two of the three serious presidential impeachment cases in American history, forming the basis for <a href="http://watergate.info/impeachment/articles-of-impeachment">Article I</a> of the charges against Richard Nixon, and <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/articles122098.htm">Article II</a>  against Bill Clinton. &#13;<br /> &#13;<br /> Should President Trump be impeached for obstruction of justice? I’m not going to answer that question here; like the cagey <a href="https://www.npr.org/2019/04/23/716247955/more-democrats-call-for-impeachment-proceedings-against-president-trump">Mayor Pete</a>, I’m “going to leave it to the House and Senate to figure that out.” Instead, I want to stress something that should be obvious, but tends to get lost amid the statutory exegesis in <a href="https://www.nytimes.com/interactive/2019/04/18/us/politics/mueller-report-document.html#g-page-208">Mueller Vol. II</a>: whether the president is guilty of criminal obstruction and whether he’s guilty of <em>impeachable </em>obstruction are different questions. &#13;<br /> &#13;<br /> Summing up Article I of the case against Nixon, the 1974 House Judiciary Committee report <a href="https://books.google.com/books?id=Q_SbAAAAMAAJ&amp;dq=%22impeachment+of+richard+m+nixon%22+%22committee+on+the+judiciary%22&amp;focus=searchwithinvolume&amp;q=%22not+the+fact+that+violations+of+Federal+criminal+statutes+occurred%22">explained that</a>: &#13;<br /> &#13;</p> <blockquote><p>President Nixon’s actions…. were contrary to his trust as President and unmindful of the solemn duties of his high office. It was this serious violation of Richard M. Nixon’s constitutional obligations as president, and <em>not the fact that violations of Federal criminal statutes occurred</em>, that lies at the heart of Article I [emphasis added].</p> </blockquote> <p>The Judiciary Committee <a href="https://www.congress.gov/105/crpt/hrpt830/CRPT-105hrpt830.pdf">report</a> on the Clinton impeachment echoed that analysis a quarter-century later: “the actions of President Clinton do not have to rise to the level of violating the federal statute regarding obstruction of justice in order to justify impeachment.” &#13;<br /> &#13;<br /> The standards are different because impeachment and the criminal law serve distinct ends and have very different consequences. “The purpose of impeachment is not personal punishment,” the Judiciary Committee <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/watergatedoc_8.htm">emphasized</a> in its 1974 staff report on “Constitutional Grounds for Presidential Impeachment”; instead, impeachment’s function “is primarily to maintain constitutional government.” And where the criminal law deprives the convicted party of liberty, a successful impeachment <a href="http://www.heritage.org/constitution/articles/1/essays/18/punishment-for-impeachment">mainly puts him out of a job</a>. &#13;<br /> &#13;<br /> I've complained before about <a href="https://www.cato.org/blog/overcriminalization-impeachment">"the overcriminalization of impeachment,"</a> the widespread tendency to confuse impeachment with a criminal process. Congress has contributed to that confusion by <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3376&amp;context=penn_law_review">offloading much of its responsibility</a> for policing executive misconduct to special prosecutors. Mueller wasn't tasked with looking into “high Crimes and Misdemeanors"; his brief was <a href="https://www.nytimes.com/interactive/2019/04/18/us/politics/mueller-report-document.html#g-page-213">to probe</a> “federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation." Naturally, then, the report speaks in the language of the criminal law.&#13;<br /> &#13;<br /> But impeachment aims at fundamental breaches of the public trust, and therefore, as Alexander Hamilton <a href="http://avalon.law.yale.edu/18th_century/fed65.asp">put it</a>, “can never be tied down by such strict rules” as operate in the criminal law. In an impeachment proceeding, the key question isn’t whether the president technically violated one or more of the federal obstruction statutes. It’s whether his transgressions are serious enough to justify removal from office. &#13;<br /> &#13;<br /> That sort of inquiry is, in many ways, <em>less</em> forgiving than the criminal law approach. Though the Constitution <a href="https://books.google.com/books?id=V_tdDwAAQBAJ&amp;lpg=PP1&amp;dq=gerhardt%20impeachment&amp;pg=PA90#v=snippet&amp;q=%22is%20there%20a%20burden%20of%20proof%20required%20in%20impeachment%20proceedings%22&amp;f=false">nowhere specifies</a> a particular burden of proof for impeachment, “criminal prosecutions require that the government prove guilt beyond a reasonable doubt in a proceeding in which the defendant enjoys many significant procedural protections.” As Michael Rappaport <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3376&amp;context=penn_law_review">has observed</a>, “a criminal prosecution model underenforces against executive misconduct, because it ignores noncriminal misconduct that may justify dismissing an executive official,” such as "‘high Crimes and Misdemeanors,’ which need not constitute violations of criminal or civil law.”&#13;<br /> &#13;<br /> A prosecutor needs to prove every element of a statutory offense: a generalized showing of contempt for the rule of law won't suffice. It’s fair game in impeachment, however. “Unlike a criminal case,” the Nixon Inquiry Report <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/watergatedoc_8.htm">explains</a>, “the cause for the removal of a President may be based on his entire course of conduct in office. In particular situations, it may be a course of conduct more than individual acts that has a tendency to subvert constitutional government.”  &#13;<br /> &#13;<br /> In other important respects, however, an impeachment inquiry can be more lenient toward the accused. “Not all presidential misconduct is sufficient to constitute grounds for impeachment,” the Nixon Inquiry Report <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/watergatedoc_9.htm">emphasizes</a>: “There is a further requirement—substantiality.” Impeachment should “be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.” Even provable, criminal obstruction will not meet the standard of “high Crimes and Misdemeanors” in every case.&#13;<br /> &#13;<br /> For instance, when viewed through the lens of the criminal law, the case against Bill Clinton was quite strong. Here’s Judge Richard Posner’s assessment, from his 1999 book on the Clinton impeachment, <a href="https://books.google.com/books?id=JFRi1TQgVmQC&amp;lpg=PP1&amp;dq=posner%20an%20affair%20of%20state&amp;pg=PA54#v=snippet&amp;q=%22President%20Clinton%20obstructed%20justice,%20in%20violation%20of%20federal%20criminal%20law%22&amp;f=false"><em>An</em> <em>Affair of State</em></a>:&#13;<br /> &#13;</p> <blockquote><p>To summarize, it is clear beyond a reasonable doubt, on the basis of the public record as it exists today, that President Clinton obstructed justice, in violation of federal criminal law, by (1) perjuring himself repeatedly in his deposition in the Paula Jones case, in his testimony before the grand jury, and in his responses to the questions put to him by the House Judiciary Committee; (2) tampering with witness Lewinsky by encouraging her to file a false affidavit in lieu of having to be deposed, … and (3) suborning perjury by suggesting to Lewinsky that she include in her affidavit a false explanation for the reason that she had been transferred from the White House to the Pentagon.</p> </blockquote> <p>After the Senate trial, however, multiple senators explained their votes to acquit in terms of substantiality: that although obstruction could, under certain circumstances, merit removal, the offense in this case <a href="https://www.law.cornell.edu/constitution-conan/article-2/section-4/the-clinton-impeachment#fn903art2">wasn’t grave enough</a> to justify that penalty. There’s no “it was about sex” defense to a charge of criminal obstruction, but in an impeachment trial, what—if anything—the president was trying to cover up matters.&#13;<br /> &#13;<br /> In Trump’s case, the Mueller Report outlines a (lackluster and inept) cover-up without an underlying crime. As the Report <a href="https://www.nytimes.com/interactive/2019/04/18/us/politics/mueller-report-document.html#g-page-221">reminds us</a>, “proof of such a crime is not an element of an obstruction offense”—for the purposes of a criminal conviction, it doesn’t matter whether there’s an underlying crime. But for the purposes of an impeachment, arguably, it should. &#13;<br /> &#13;<br /> On the other hand, what’s in the Mueller Report is only part of the picture. As a group of prominent conservative attorneys and academics <a href="https://checks-and-balances.org/new-statement-from-checks-and-balances-on-the-mueller-report/">put it</a> in a public statement released Tuesday: &#13;<br /> &#13;</p> <blockquote><p>The report’s details add to an existing body of information already in the public domain documenting the President’s violations of his oath, including but not limited to his denigration of the free press, verbal attacks on members of the judiciary, encouragement of law enforcement officers to violate the law, and incessant lying to the American people.  We believe the framers of the Constitution would have viewed the totality of this conduct as evidence of high crimes and misdemeanors. </p> </blockquote> <p> An inquest based on the president’s “entire course of conduct in office” could be a lot less forgiving.  &#13;<br /> &#13;<br />  </p> Fri, 26 Apr 2019 13:46:00 -0400 Gene Healy https://www.cato.org/criminal-obstruction-vs-impeachable-obstruction Donald Trump: Standing on the Shoulders of Tyrants https://www.cato.org/cato-daily-podcast/donald-trump-standing-shoulders-tyrants?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy, Caleb O. Brown <p>How does the Trump record of aggrandizing the Oval Office compare to his predecessors? Cato's Gene Healy details his case in <a href="https://reason.com/2019/04/06/standing-on-the-shoulders-of-t/" rel="noopener noreferrer" target="_blank">a new article in <em>Reason</em></a>.</p> Thu, 25 Apr 2019 11:22:00 -0400 Gene Healy, Caleb O. Brown https://www.cato.org/cato-daily-podcast/donald-trump-standing-shoulders-tyrants Gene Healy discusses the Posse Comitatus Act on The Rick Ungar Show https://www.cato.org/media-highlights-radio/gene-healy-discusses-posse-comitatus-act-rick-ungar-show?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Mon, 15 Apr 2019 10:57:00 -0400 Gene Healy https://www.cato.org/media-highlights-radio/gene-healy-discusses-posse-comitatus-act-rick-ungar-show Standing on the Shoulders of Tyrants https://www.cato.org/commentary/standing-shoulders-tyrants?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Gene Healy <div class="lead text-default"> <p>"I have the absolute right to PARDON myself," President Donald Trump announced via Twitter in June 2018. With that, he pitched a can of Sterno into the ongoing media firestorm over the special counsel's Russia investigation.</p> </div> , <div class="text-default"> <p>The last time a president contemplated a self-pardon was during the "final days" of Watergate. Nixon wasn't entirely in his right mind during this period: frequently drunk, possibly suicidal, incoherent, pacing the halls at night "talking to pictures of former presidents," according to his son-in-law. Still, even at his worst moment, Nixon had enough wits about him to know that trying to pardon himself would be crazy.</p> <p>Trump seems to have arrived at a similar conclusion. His claims about his right to undermine the rule of law are frequent and contemptible. Yet as far as we can tell, they have mostly been rhetorical.</p> <p>In the run-up to the 2018 midterms, for instance, the president threatened to issue an executive order revoking birthright citizenship—a move that would have flouted the plain language and legislative history of the 14th Amendment while putting more than 4 million Americans at risk of deportation. But this too seems to have been a pump fake designed to thrill the base and rile the media; it was abandoned after Election Day.</p> <p>It's become a familiar pattern. Trump hits "send tweet" on some crank theory of absolute executive power. Law professors and pundits cancel their weekend plans, scrambling to figure out "Can he do that?"—only to realize, weeks later, that they needn't have taken him literally <em>or</em> seriously.</p> <p>No president in living memory has been nearly as vocal about his contempt for the legal limits on his power; none has threatened half as often to throw them off. But again and again, Trump stares across the Rubicon, shrugs, and then heads back inside to live-tweet Fox News.</p> <p></p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Donald Trump's rhetoric is breathtakingly authoritarian, but so far he's done less than his predecessors to expand executive power.</p> </div> </div> </aside> , <div class="text-default"> <p>In the first hour of this presidency, just after Trump delivered his "American Carnage" inaugural address, George W. Bush supposedly remarked, "That was some weird shit." At this point, we can quibble only with W's use of the past tense: The current president's behavior has been so weird and unsettling that it's hard to get perspective on how bad we've got it. Trump's tweets, his insult-comic pep rallies, his general inability to act like a grown-up in a grown-up's job—everything about the 45th president distracts us from a clear-eyed evaluation of what he's actually <em>done</em> with the enormous powers he inherited.</p> <p>Case in point: In January, <em>The Atlantic</em> marked the midpoint of Trump's tenure with "50 Moments That Define an Improbable Presidency," ranked "according to both their outlandishness and their importance." The former dominate the latter. By my count, 28 of the entries relate to Trump's freakish and often repugnant public conduct: using social media to share the wisdom of Benito Mussolini, referring to "shithole countries," firing his secretary of state via Twitter, and the like. Perhaps 10 of the 50 episodes feature the president misusing the powers of the office. "Trump threatens to press his 'nuclear button'" clocks in at number 17 on the parade of horribles—eight places behind his May 2017 tweet-burp, "covfefe."</p> <p>But unsettling and repellent as Trump's behavior is, how he wields power has to matter more than what he rants about. It's entirely possible that Donald J. Trump is a terrible human being without a redeeming liberal impulse <em>and</em> not nearly as imperial a president as his two immediate predecessors. (Or at least not yet.)</p> <p>In fact, a close examination of Trump's policies suggests that what we've got so far is the Xtreme Energy Drink version of what's been on tap for a long time. Like Four Loko, it clouds your vision, sours your stomach, and wrecks your head, but it may not be as lethal as the alarmists claim. In his first two years, Trump has aggressively exploited the powers he inherited, but—with very few exceptions—he hasn't really forged new frontiers in the expansion of executive power.</p> <p><strong>Bloody Business as Usual</strong></p> <p>Abroad, the executive's powers are at their apex. During President Barack Obama's final year in office, U.S. forces dropped more than 26,000 bombs on seven different countries. Nine months into his tenure, Trump had already blown past that tally. In 2017, he tripled the number of drone strikes Obama had ordered on Yemen the year before. In Somalia, he launched more than Obama had managed over two terms. In his first year, the self-styled "America First" president deepened entanglements on every foreign battlefield his predecessor left him, ramping up deployments, kill-or-capture missions, and civilian casualties.</p> <p>But none of that required new claims of presidential power. Well before Trump took office, permanent war had become America's default setting, thanks in large part to the 2001 Authorization for the Use of Military Force (AUMF) that Congress passed three days after September 11.</p> <p>Initially aimed at the perpetrators of the attacks and those who "harbored" or "aided" them, the AUMF by 2016 had been stretched by creative lawyering far enough to cover everything from boots on the ground in Tongo Tongo to drones over Timbuktu. Trump took that expanded authority and used it as legal justification for "bomb[ing] the shit out of" ISIS and other jihadist groups. But the real inflection point, quantitatively and qualitatively, happened under his predecessor. Trump's escalation of the war on terror may rest on shaky legal ground, but it's not territory the 45th president seized.</p> <p>There's one area where Trump has ventured further than Obama: his annual spring bombing of the Bashar al-Assad regime in Syria. In April 2017 and again in April 2018, Trump ordered airstrikes on Syrian government assets in response to chemical weapons attacks attributed to the Assad regime.</p> <p>The Trump administration couldn't credibly rely on the 2001 AUMF as legal justification for its drive-by missile strikes. Having already been used, tenuously, to cover ISIS, a group excommunicated by and at war with Al Qaeda, the AUMF couldn't also serve to underwrite military action against Assad, who's at war with both.</p> <p>Instead, the president invoked his Article II powers as commander in chief and chief executive. A May 2018 memorandum from the Office of Legal Counsel (OLC)—"the president's law firm" and an ever-reliable font of constitutional rationalizations—lays out the theory: "the President could lawfully direct [the airstrikes] because he had reasonably determined that the use of force would be in the national interest and that the anticipated hostilities would not rise to the level of a war in the constitutional sense."</p> <p>In other words, if the president thinks it's a good idea—and assures himself we won't get bogged down in a wider conflict—he can order up a light dusting of cruise missiles. "Not every military operation," OLC insists, "rises to the level of a war." Bombing raids are a <em>microaggression</em>, constitutionally speaking.</p> <p>That is, of course, an extraordinarily broad interpretation of the president's war powers, which the Framers understood to cover repelling sudden attacks, not launching them. But it's nothing new. The Trump OLC opinion relies heavily on two Obama-era opinions, one written to support the war in Libya and another drafted when his administration was contemplating "humanitarian" intervention in Syria. And broad as the Trump/Obama theory is, it falls well short of the absolutist notions that prevailed in the George W. Bush OLC, which held categorically that decisions about the use of military force "are for the President alone to make."</p> <p><strong>Powers There for the Taking</strong></p> <p>Indeed, very few of Trump's most controversial initiatives have smashed the Overton window on executive discretion. His administration's cruelest policies—separating children from their parents at the border, aiding Saudi Arabia's murderous war in Yemen—didn't require a novel gloss on presidential authority. The powers were already in the White House's arsenal. "Zero tolerance" at the border was a (brutal) exercise of prosecutorial discretion, and it was Obama who first ordered aerial refueling and other assistance to a Saudi bombing campaign that has hit weddings, school buses, and hospitals, causing massive civilian casualties.</p> <p>The administration's various attempts to impose a travel ban ran into stiff judicial resistance, thanks in large part to Trump's repeatedly calling it a "Muslim ban" and practically daring the courts to strike it down. (As was said of gangster matriarch Livia Soprano, "Between brain and mouth, there is no interlocutor.") Even so, the Supreme Court upheld a revised version of the order last summer, with Chief Justice John Roberts noting that the relevant statute "exudes deference to the President in every clause."</p> <p>There's ample ground for disputing the Court's decision, but the case law supporting that deference long predated the Trump presidency. As the Cato Institute immigration scholar David Bier puts it, "It's difficult to do a genuine executive power grab in an area where SCOTUS and Congress have ceded this much power to the president."</p> <p>When it comes to <em>trade</em> wars, Trump is demonstrably more bellicose than his immediate predecessors: Such face-offs are "good and easy to win," he tweeted last spring. Three days after his inauguration, he announced his decision to withdraw from the Trans-Pacific Partnership (TPP), a trade agreement with 11 Asia-Pacific nations that hadn't yet been submitted to Congress. In March 2018, he invoked his statutory powers under Section 301 of the Trade Act of 1974 to hike tariffs on a host of Chinese products, sparking a series of tit-for-tat countermeasures that now affects some $360 billion in U.S.-China trade.</p> <p>Trump's authority to make these moves was hardly disputed. The modern U.S. trade regime delegates enormous power to the chief executive on the theory that, as the representative of a national constituency, he's more insulated from parochial interests than members of Congress and therefore a better steward of open markets. That theory met the ultimate test starting in January 2017.</p> <p>The president didn't need to push the envelope on executive authority to penalize China or cancel the TPP. There is one front of the trade war, however, where Trump managed a significant executive power grab: his March 2018 imposition of steel and aluminum tariffs on national security grounds.</p> <p>Trump is far from the first chief executive to jack up tariffs for naked political purposes. In 2002, George W. Bush imposed duties of up to 30 percent on imported steel, a move that his trade representative admitted was made to "manage political support for free trade at home." But the legal authority Bush invoked wasn't novel: The "safeguard" provision of the '74 Trade Act had been used some 28 times before to protect domestic producers from import surges—of motorcycles and steel under Ronald Reagan, for example, and of wheat gluten and lamb meat under Bill Clinton.</p> <p>Trump's steel and aluminum tariffs mined a different, and potentially much vaster, delegation of congressional power. Section 232 of the Trade Expansion Act of 1962 allows the president to "adjust imports" upon a finding by the commerce secretary that current levels threaten "national security."</p> <p>Prior uses of the national security clause—embargoes on crude oil from Iran in 1979 and Libya in 1982—had at least some plausible relationship to defense policy. In Trump's case, the national security rationale was a transparent pretext. A memo then–Secretary of Defense James Mattis released after Trump's announcement notes that military demand for the two metals represents just 3 percent of U.S. production and that foreign competition would not "impact the ability of [Defense Department] programs to acquire the steel or aluminum necessary to meet national defense requirements."</p> <p>In a challenge to the law brought by steel importers, a Justice Department attorney wouldn't give a clear "no" to the question of whether, under the statute, a president "worried about jobs in the peanut butter industry" could "make a national security connection" and order an embargo on imports of the sandwich ingredient. That may sound absurd, but it's probably a mistake to give this president any new ideas. He was apoplectic when Nabisco moved Oreo production to Mexico in 2015. Could Double Stuf imports be the next national security threat?</p> <p><strong>A Bogus National Emergency</strong></p> <p>Trump's use of the national security clause to impose steel and aluminum tariffs was the first time he added a new weapon to the executive arsenal. The second time involved his single-minded desire to build a wall along the border with Mexico.</p> <p>In late 2018, the president forced a partial government shutdown by refusing to sign any spending bill that didn't include $5.7 billion for the barrier. At the same time, he began threatening to use emergency powers to fund it anyway. On February 15, he made good on that threat with a formal proclamation "Declaring a National Emergency Concerning the Southern Border of the United States."</p> <p>The first paragraph of that proclamation concedes that "the problem of large-scale unlawful migration through the southern border is long-standing." Just before he signed the paperwork, Trump further undercut the "crisis" claim by admitting, "I didn't need to do this. But I'd rather do it much faster."</p> <p>A president triggering emergency authorities isn't unusual, unfortunately. There are more than 30 national emergency declarations in effect right now, dating as far back as the 1979 Iranian hostage crisis. What's new here is the bogus invocation of an "emergency" to fund a pet project Congress had repeatedly refused to support. It's a militarized version of the "trillion-dollar coin" gimmick that Obama apparently contemplated, but never used, when the GOP in 2011 resisted raising the federal debt limit—an extralegal tactic better suited to a banana republic than a government of laws.</p> <p>And it could set a damaging precedent. In 1952, Justice Robert Jackson wrote that the Framers feared that "emergency powers would tend to kindle emergencies," which was why they rejected any general grant of such power to the executive. But what the Framers withheld Congress has fecklessly ceded, via myriad laws passed over decades. A Brennan Center report released last December identifies 123 statutory powers the president can invoke in a self-declared national emergency, including the power to test chemical or biological weapons on human subjects or to take over "any facility or station for wire communications" if he proclaims that a threat of war exists.</p> <p>Shortly after Trump's emergency announcement, Democratic presidential contender Sen. Elizabeth Warren (D–Mass.) weighed in on Twitter: "Gun violence is an emergency. Climate change is an emergency.…Donald Trump's ridiculous wall is not an emergency." She's right about the last bit, but it sure sounds as if Trump's gambit has inspired her to start envisioning emergency proclamations yet to come.</p> <p><strong>What About <em>Whataboutism</em>?</strong></p> <p>Trump's exploitation of national security and national emergency authorities in trade and immigration is cynical, lawless, and potentially dangerous. But the current president is standing on the shoulders of tyrants. Next to the executive power grabs of his two immediate predecessors, those innovations look like pretty small beer.</p> <p>Declaring a national emergency might let Trump get away with shifting several billion dollars toward a Potemkin barrier on the southern border. But in 2011, Barack Obama managed to find enough loose change in the Pentagon budget to bomb Libya for seven months without any specific appropriations, let alone authorization, from Congress. As dubious as Trump's legal claim is, it doesn't require torturing the relevant statute nearly as much as Obama tortured the 2001 AUMF to wage war against ISIS—or as much as George W. Bush tortured U.S. law to justify <em>actual torture</em>.</p> <p>Among other enormities, Bush implemented a host of secret dragnet surveillance programs and, in his last month in office, unilaterally ordered a multibillion-dollar auto bailout just days after Congress voted the move down.</p> <p>Obama, who had pledged to "turn the page on the imperial presidency," launched two undeclared wars—in Libya and against ISIS—and defied the limits imposed by the 1973 War Powers Resolution on the novel theory that you're not engaged in "hostilities" if the foreigners you're bombing can't hit you back. At home, he used the powers of "the pen and the phone" to unilaterally rewrite federal immigration law and his own Affordable Care Act.</p> <p>It's true: Trump talks like a caricature of a homicidal despot. At various times he's threatened to order the military to commit war crimes, bring back torture, "take out" terrorists' families, and "take the oil" from countries where we're at war. President Bush actually seized an American citizen on American soil and claimed the power to hold him as an "enemy combatant" in a military prison for the duration of the war on terror. And President Obama claimed, and exercised, the power to order drone strikes on Americans abroad. But because you could take Bush and Obama out in polite company and they'd sound the right notes about democracy and human rights, they were able to get away with far greater abuses than Trump has yet attempted.</p> <p>It's at this point that such comparisons usually draw a charge of "whataboutism," a scurrilous debater's dodge that's become increasingly common in the Trump era. The <em>Oxford English Dictionary</em>, which added the word to the lexicon in 2018 on the strength of "a spike in use in relation to US politics in the past year," defines <em>whataboutism</em> as the "practice of responding to an accusation or difficult question by making a counter-accusation or raising a different issue." That's a tactic Trump himself has perfected, as when he rails against the special counsel investigation by demanding to know why no one's "looking into Crooked Hillarys crimes &amp; Russia relations?"</p> <p>Still, whether a given comparison constitutes <em>whataboutism</em> depends on what you're on about. If the aim is to defend your side by pointing to the other team's sins, it's a logical fallacy. But what's at issue here is how much Trump has pushed the envelope on executive power, a question that cannot be answered without reference to those who pushed before. Lately, all too often, the "whataboutism" charge has itself become a diversionary tactic—an excuse for pretending that the history of presidential transgressions began on January 20, 2017.</p> <p><strong>The Abuses That Haven't Happened (Yet)</strong></p> <p>"So far, Trump has used his powers less aggressively than most modern presidents," University of Chicago law professor Eric Posner observed last year in <em>The Washington Post</em>. Indeed, what's striking is how many of Trump's truly awful, imperial notions turn out to be crazy-uncle-shouting-at-the-TV bluster that never gets a tangible follow-through.</p> <p>Granted, some of those outbursts are genuinely terrifying. During his first year in office, Trump seemed determined to confirm the worst fears about his presidency, casually threatening to rain thermonuclear "fire and fury" on North Korea and tweeting playground insults at the hermit kingdom's paranoid dictator. But by mid-2018, the mercurial Trump and "Little Rocket Man" had embarked on a bizarre bromance as odd as—if less frightening than—their first-year Twitter war. Lately, Trump's hawkish would-be handlers mainly worry the president "will be overly enthusiastic about engagement with wily adversaries," as <em>The New York Times</em> put it. Last December, when Trump announced a withdrawal of U.S. troops from Syria, anonymous Defense Department officials and Rep. Nancy Pelosi (D–Calif.) accused him of playing "wag the dog" by trying to <em>wind down</em> a war. Apparently, the major risk with an unstable president is that we might pratfall into peace.</p> <p>Trump's attitude toward federal law enforcement is nearly as unsettling as his sporadic saber rattling. The president has made it all too clear that he'd like to run the Department of Justice like a closely held business. He thinks his attorney general should have his back the way Bobby had JFK's, and he insists he has "an absolute right to do what I want with the Justice Department."</p> <p>Unlike past presidents who seized new substantive powers in the midst of economic or foreign policy crises, <em>The</em> <em>Atlantic</em>'s David Graham argues, "Trump seems to be pushing against the limits of his presidential power almost entirely to protect himself." Yet the material attempts the president has made toward that end have mainly been within his constitutional authority.</p> <p>They've also tended to be comically self-defeating. Former Trump adviser Steve Bannon rightly called the May 2017 firing of FBI director James Comey one of the biggest mistakes in modern political history. That own goal may have weighed on Trump's mind in June 2017, when he very nearly removed Special Counsel Robert Mueller but then backed off when his White House counsel threatened to quit.</p> <p>What's stopping Trump from going further to blow up executive constraints? Posner's <em>Post</em> piece offers three hypotheses. First, that the president is "a blowhard" who talks tough but shrinks from fights he might not win. Second, that it's all part of a sinister plan in which he steadily undermines the legitimacy of the courts and the media until he's ready to strike. Or third, that he has concluded his base is credulous enough to back him so long as he <em>looks</em> like he's fighting, whether or not he actually gets anything done.</p> <p>Of these, the second explanation, which has Trump laying the "groundwork for an attack on our institutions at a politically opportune moment," is the least plausible. Such a scheme would require a healthy attention span and a modicum of self-restraint, neither of which this president has demonstrated so far. Being an effective autocrat is hard work.</p> <p>The national emergency declaration that generated so much outcry fits perfectly into the staged-drama, reality-TV theory of the Trump presidency. It may be years, if ever, before a single "artistically designed steel slat" is implanted under its authority. But the president may not care. The "emergency" gambit gave him a way out of the corner he'd painted himself into. And when the courts get in his way, he can rant about "so-called judges" making us less safe.</p> <p>Trump's lack of impulse control and self-discipline—his tendency to say the quiet parts out loud—have helped generate significant pushback, even #Resistance, within the courts and the federal bureaucracy. Our political system remains surprisingly resistant to one-man rule. There's a lot of ruin in a republic, it seems.</p> <p><strong>Past Performance and Future Results</strong></p> <p>Most presidents strive to leave the presidency stronger than they found it. Most of them succeed. A year ago, I thought it was a safe bet Trump would continue that trend. Yet so far, he looks poised to be the first commander in chief since Jimmy Carter who won't.</p> <p>It would be foolish to conclude that we needn't worry about Trump's authoritarian temperament. He already holds the most powerful office in the world, and he regularly fantasizes about abusing that power to an audience of 58 million followers on a Twitter feed that sounds like a live broadcast of the Watergate Tapes. In government, as in investing, past performance is no guarantee of future results. The chances that Trump will be able to successfully act on one of his lawless impulses are far higher than the prospect that he'll suddenly turn "so presidential" we'll be bored, as he promised on <em>The Today Show</em> before his election. And nothing in the law or history of constitutional impeachment requires Congress to wait until after the damage has already been done before it opens an inquiry.</p> <p>When we consider how many of this president's abuses, attempted or accomplished, were based on powers his predecessors had already seized, we should consider ourselves lucky things haven't gone worse. And we should set about reimposing limits on the office's powers before a <em>competent</em> authoritarian comes along.</p> </div> Tue, 09 Apr 2019 09:14:00 -0400 Gene Healy https://www.cato.org/commentary/standing-shoulders-tyrants A Real Emergency: Executive Power under the National Emergencies Act https://www.cato.org/events/real-emergency-executive-power-under-national-emergencies-act?utm_source=rss_author&utm_medium=rss&utm_campaign=rss Spencer P. Boyer, Ilya Somin, Deborah Pearlstein, Adam J. White, Gene Healy <p>In recent years, libertarians and progressives have found common cause in their concern that the growth of executive power is far in excess of constitutional limits. Our Constitution gives the president few explicit emergency powers, but presidents have invoked national emergencies as justification for a wide variety of actions. After Watergate, Congress created a framework for regulating this authority, in the 1976 National Emergencies Act. With President Trump’s decision to circumvent Congress and declare a national emergency so that he can construct a wall on the southern border, the propriety of the National Emergencies Act and broader separation of powers issues can no longer be avoided. For example, building the wall would entail seizing private property through eminent domain and reallocating funds that Congress has authorized for other purposes. Has the National Emergencies Act become part of the problem, rather than a solution? Should it be reformed? And how, more broadly, can we still allow presidents to appropriately handle moments of crisis while reining in executive overreach?</p> <p>This event is approved for 1.5 hours of California MCLE credit.</p> Mon, 25 Mar 2019 15:15:00 -0400 Spencer P. Boyer, Ilya Somin, Deborah Pearlstein, Adam J. White, Gene Healy https://www.cato.org/events/real-emergency-executive-power-under-national-emergencies-act