executive power

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

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

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

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

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

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

Let’s Build a New Consensus to Restrain Executive Power

It happened.

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

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

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

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

Donald Trump and the Gift of Fear

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

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

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

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

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

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