The Presidency Is At Its Most Powerful Ever — Now Trump Takes Charge

For decades, the presidency has been on a trajectory toward unparalleled power. Presidents of both parties have been willing to disregard the law, especially in emergencies. In turn, Congresses led by both parties have acquiesced to power grabs and routinely written new laws that empower the president to make existential decisions in the name of the American people but without their explicit consent.

On inauguration day, Trump inherited what decades of credulous Congresses have wrought. The power to further unbalance our constitutional system is in his hands. 

A Clinton presidency (or a Sanders presidency, or Cruz presidency) would have raised these worries too, given the state of presidential power in 2017. However, most politicians are thoroughly steeped in democratic norms respecting legitimate opposition and the rule of law. A Trump presidency, which seems utterly unrestrained by those norms, raises more frightening questions. 

We are in this situation precisely because the presidency in the 21^st century bears little resemblance to George Washington’s. To the framers of the Constitution, who feared concentrated executive power, putting policy-making and law enforcement in the executive’s hands could open the door to foreign influence, corruption, civil liberties threats, and decay of the rule of law. Their reading of history compelled them to give the federal government’s policymaking powers to Congress and force the president to share control over his few explicit powers.

That workable design did not survive the 20^th century. We now see a president who is increasingly able to make the law and to enforce it according to his own discretion.

As defined by scholars, the new imperial presidency has several unsavory characteristics: it uses military force without Congress’ permission; it selectively enforces the law; it prefers secrecy over disclosure; it tolerates corruption; and it has been known to use the instruments of law enforcement (the IRS, the FBI, U.S. Attorneys) against its critics. From President Truman’s unilateral (and illegal) initiation of the Korean War through the Bush Administration’s illegal torture of prisoners after 9/11, presidents of both parties have been willing to disregard the law. And from the PATRIOT ACT (giving the executive branch the ability to authorize warrantless searches) to the International Emergency Economic Powers Act (giving the president ability to unilaterally impose economic sanctions), there are few areas of the law that cannot be interpreted as giving wide discretion to the executive branch.

In the nightmare scenario, this presidency, or the ones that follow, tip the United States toward autocratic rule. In this new system, Congress, with its frequent elections and responsiveness to constituents, would be sidelined. The president would routinely make law on his own and routinely fail to enforce existing law. He would use the instruments of government to distribute propaganda that support his decisions. Worst of all, he would use the mighty force of the executive branch to intimidate, prosecute, and silence his political opponents.

Corruption is a gateway drug to autocracy. Trump’s belief that “the president can’t have a conflict of interest” and therefore can potentially enrich himself at the public’s expense sets the president in a position apart from, and above, ordinary citizens. Such an attitude supports the idea that the law doesn’t apply to the president, and worse, that the law doesn’t apply to the president’s friends and supporters. This attitude is anathema to the rule of law. It also sets up strong incentives to be friends of the president, which undermines fair criticism and electoral competition.

The president’s highest constitutional responsibility is to “faithfully execute the laws.” But over time, presidents have increasingly found that mandate to be politically inconvenient. Richard Nixon, for example, simply refused to spend some monies that Congress had appropriated. President George W. Bush re-interpreted and refused to enforce American law banning torture. President Obama radically reinterpreted immigration law, by creating a class of undocumented immigrants who were officially protected from deportation. Obama also failed to prosecute marijuana sale and distribution in states where it has been legalized, which hardly seems to be a faithful execution of the Controlled Substances Act.

What steps can the next president take, building upon those precedents? Interpreting the law in creative ways is already the norm, but ignoring the plain meaning of the law is the next, possibly inevitable step, and any area of law could be vulnerable. President Trump could easily interpret immigration law as mandating massive deportations, or could ban immigration entirely from certain countries. A president opposed to environmental laws could weaken or refuse to enforce them. Same goes with Wall Street regulations, even without further Congressional action. Partisan enforcement (or non-enforcement) of the Voting Rights Act or the Clean Water Act might be expected from a Trump administration.

One major consequence of a more partisan administration of the laws could be that the professionally validated information becomes partisan propaganda. Today, most laws are enforced by the career civil service, and non-partisan, expert-based administration has been a hallmark of the rule of law in the 20th century. But it is a choice we have made, and that choice could be overturned. The Trump team and Republicans in Congress have already suggested they may be interested in intimidating some civil servants into pursuing policy agendas, or driving them out of the government entirely.

The difficulty of trusting data and facts presented by a propaganda machine presents itself in many areas of government. The president has a virtual monopoly on information surrounding international relations and national security. If he says there is a threat that justifies a response, the public has almost no way to question or verify that judgement. (And members of Congress have a habit of being all-too deferential to such pronouncements). Americans have repeatedly been drawn into wars later regretted because of that monopoly over information.

What’s more, the federal government produces reams of information that we all rely upon: about our health, weather, science, the state of the economy, and population size. We have all heard about the incoming administration’s rejection of the science surrounding climate change, health and vaccines. It is not a stretch to imagine a similar degree of skepticism about professional scientific standards that filter into personnel decisions or the manipulation of data that agencies produce. Information that the president doesn’t like about, say, declining job creation or rising unemployment rate, or even the results of the U.S. Census, could be manipulated. Rosy, pro-regime propaganda would make it harder for outsiders to criticize the performance of the government and defeat them at the ballot box.

In the nightmare scenario, federal law enforcement puts critics and dissenters at risk, even more directly undermining free and fair elections. Loyal, partisan, presidentially-backed U.S. Attorneys could prosecute political opponents on flimsy charges, undermining strong candidates in close races. Or they could prosecute opposition party groups attempting to register voters for exaggerated charges of voter fraud, making it harder for the Democrats to mobilize. The Bush administration attempted to misuse its power this way — and the ensuing scandal resulted in the resignation of the Attorney General, Alberto Gonzales. The Bush Administration’s abuses were limited by the fired U.S. Attorneys’ own honorable commitment to the norms of the rule of law, combined with the investigatory power of a Democratic Senate, and press scrutiny of the story. With less professional appointees, a Senate reluctant to investigate its own party’s president, and a distracted press, such abuses of prosecutorial power could become more widespread.

The government’s surveillance capabilities can also be used as a political weapon. As we are all aware, technology gives private individuals, companies, and governments unprecedented ability to spy on ordinary citizens. Such surveillance, selectively leaked, can ruin individual lives, and can have a chilling effect on dissent. More dangerously, such leaks to a compliant press (or eager candidates in the president’s party) could undermine the regime’s political opponents in either party. For precedent, see Nixon’s efforts to undermine anti-war protestors and the Huston plan.

All of these hypotheticals are bastardizations of the law as we know it today. Hopefully, these musings will be seen, in retrospect, as paranoid and absurd. But in the past, the American people, and especially the president’s partisans, have looked the other way when presidents have taken steps to transform the constitutional system, and in the grand sweep of history, democracies have had short life spans. The nonpartisan courts provide a bulwark against these threats to the rule of law, but they are not immune to partisan reasoning either, and cannot enforce the law on their own.

Republican members of Congress may be tempted (as Democrats have been) to support broad executive power to efficiently serve their own policy preferences. But it is up to everyone, especially today’s Republican officeholders, to be aware of the risks an all-powerful executive can pose to a democracy, and to ensure that the presidency does not mutate into something unrecognizable and unfathomable on their watch.

Casey Dominguez, PhD, is an Associate Professor of Political Science at the University of San Diego. She researches and teaches about the presidency and political parties. Her podcast, A Few Reasonable Words, can be found on iTunes and Stitcher. 

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