Tag: Trump

Coronavirus, Domestic Policy, Government

The Dangers of Executive Overreach

Bob Claude |
Theodore Roosevelt at his desk with papers

As this helpful article from the Smithsonian Magazine illustrates, the debate over the use of presidential executive orders to end-run Congress originated with Theodore Roosevelt.  In his conservationist zeal to protect unique land and monuments, TR pushed the limits of the Antiquities and Reclamation Acts. While we are all blessed by the resulting preservation of sights like the Grand Canyon, his expansive view of presidential power also resulted in abuses like FDR’s internment of Japanese-Americans and President Truman’s attempt to seize the steel mills to prevent a strike. President Trump’s recent orders to provide partial relief for workers hit by the COVID-19 pandemic shows the limitations of the practice and its danger to our constitutional democracy.

This story from CNN sets forth the problems with these orders and why congressional action was required. The new $400 per month unemployment benefit may never materialize since it was not authorized to be distributed through the current unemployment insurance system. The payroll tax cut is really a deferral and so worker could be on the hook for a huge catch-up payment next year. Finally, the eviction protections simply consist of a study by the Secretary of Health and Human Services of ways to provide such protection.

When the last coronavirus relief effort stalled in March, I criticized both the President and Congress over their failure to reach agreement under the headline “Leaders Don’t Dither. They Decide”.  This relief bill should be more targeted toward the unemployed and essential workers on the front lines of combating the disease and supporting American society in dealing with it. However. dangling partial relief for them by a questionable legal method is not real leadership.  Leadership in our system of separation of powers often involves compromise. TR’s sympathy for those workers would probably drive him to swallow his pride to provide a “square deal” for them in time for destitute and heroic workers to receive the meaningful help they need.       

Domestic Policy, Government, Immigration

The Swamp Wins Again

Bob Claude |

In this site’s mission statement, I said that as much as Theodore Roosevelt was a model, there would be times we would disagree with his likely approach to an issue.  The Supreme Court’s recent opinion on the DACA immigration program highlights one of those differences – the wisdom of unchecked presidential power. 

The Court’s opinion errs not just because it continues a program that flouts the basic rules of immigration law.  The so-called Dreamers would have been granted permanent residency eventually. However, it should have occurred through the legislative process as part of a comprehensive immigration reform that created real and enforceable limits on future immigration.  Instead, the Court used arcane administrative obstacles to allow the Obama Administration to evade the Congress and the people to achieve its political goals. In doing so, the Court has undermined the constitutional separation of powers and the democratic process.

The breadth and depth of the power granted by the Court to administrative agencies (and thus the presidency itself) can only be understood by delving into the details. The court admits that the DACA program (and the corresponding rule protecting the parents of DACA children) were affirmative rules subject to the Administrative Procedure Act. This law ordinarily would require such rules to be issued through a notice and public comment process and adopted only after “reasoned decisionmaking” (the Court’s language). They then could be appealed for judicial review by interested groups such as the Federation for American Immigration Reform, which advocates for immigration restrictions. Instead, the program was initiated by a three-page “memorandum” not posted for prior comment and justified on conclusory grounds that such immigrants “lacked the intent to violate the law”, are “productive contributors” and “know only this country as home”. No other justification or evidence was cited to support the memorandum. In addition, by acting through such a memorandum, the administration made it more difficult to challenge the program in the courts.

Thankfully, several states did challenge it and the Fifth Circuit Court of Appeals issued a preliminary ruling holding it to be an illegal rule making.  After President Trump took office, Attorney General Jeff Sessions issued an opinion to the Department of Homeland Security holding it to be illegal. Based on these opinions, the acting Secretary of the Department of Homeland Security decided to rescind the program. That should have been the end of the matter. Instead, a new set of appeals were filed and the Supreme Court struck down the rescission and sent it back to the agency so it can consider at least 8 different objections by supporters of the rule. In short, the court ruled that an agency rule having a multi-billion dollar economic impact and granting new rights to over 20 million people could be adopted without public comment or congressional input on conclusory grounds, but could only be repealed by engaging in a detailed factual and legal analysis.

Justice Thomas’s dissent accurately describes the danger to our constitutional democracy, stating that an agency is  now “not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration”.  It grants agencies and the beneficiaries of their largesse more rights than the people as a whole. No wonder many refer to Washington as a swamp. Policies adopted through the democratic process go in, but become so mired in governmental and special interest muck that they never come out.

To his credit, President Trump has issued an executive order prohibiting this kind of rogue administrative action.  At the same time, he encourages the same culture of presidential power by constantly acting through executive orders rather than by legislation.  He has never seriously pursued a comprehensive administrative law reform in the Congress.  Without this, a succeeding administration can undo his restraints by its own executive order. As we approach the 2020 election, American nationalists who believe in the unique value of our constitutional democracy should insist that candidates, including Trump, commit to reform that drains the administrative swamp once and for all and opens up policy making to the American people.

Foreign Policy, Realist Theory

Restraint through Freedom

Bob Claude |

Opening the Pandora’s Box
Presidential Military Power – Part 3

I believe that war should never be resorted to when, or as long as, it is honorably possible to avoid it. I respect all men and women who from high motives and with sanity and self-respect do all they can to avert war. I advocate preparation for war in order to avert war; and I should never advocate war unless it were the only alternative to dishonor.

Theodore Roosevelt, “America the Unready”, Theodore Roosevelt, An Autobiography, 1913

A democracy like the United States assumes unique risks in an anarchic and hostile world. As a free people, we accept a higher vulnerability to attacks like 9/11 as the price of maintaining our freedoms.  Once war is declared,  we then accept the casualties, both to our soldiers and our values, but only for the limited period necessary to win the war.  The gravity of both types of loss demands that the decision to go to war be made not just by one person, but by the nation pursuant to the open debate envisioned by the Founding Fathers. 

I outlined the deficiencies of the current War Powers Resolution in a previous post in this series.  The law desperately needs to be updated to distinguish between different threat levels and to address new types of warfare.  First, we should recognize that not all warfare requires the same level of congressional scrutiny.  An attack upon the American homeland and a first strike against a foreign state or its leaders should be subject to a significantly higher level of congressional consultation and review.  These should be considered “major conflicts” under the law. In contrast, retaliation against overseas attacks, peacekeeping actions and other types of conflict should continue to be covered, but require authorization under the current level of scrutiny.  

The law also should apply to clandestine warfare such as cyber-attacks and low level actions such as drone attacks. Since military action will not always be the appropriate response to these kinds of attacks, presidents should be able to seek non-military responses such as trade sanctions, diplomatic or other actions in a new type of resolution called an Authorization of Action (AOA), which would also apply to military action.  To prevent endless wars, AOA’s should be automatically limited to no more than three years in duration absent a vote to renew the authorization or a declaration of war.  AOAs should also be directed at a specific state and not at a private organization or type of warfare as was the 2001 authorization. 

However, history shows that no change in the scope of presidential war powers will effectively restrain president military power without an enforcement mechanism that forces Congress to act and take responsibility for the situation.  Next to the war-making power, the most important power of Congress is the power of the purse – it’s authorization and appropriation of federal dollars.  Current law and  budgetary practice grants broad authorization to the Pentagon to spend money to support our military in the field – a necessary tool, but one that can be abused.  To prevent this, the law should provide that, notwithstanding any other law or appropriation, the President is not authorized to spend money on an action requiring an AOA after the 60-day deadline for congressional authorization.  

Finally, since major conflicts inherently expose the nation to greater risk, they should require more congressional consultation and an enforcement mechanism that makes it equally risky for presidents to ignore the process.  To achieve this, the role of the “Gang of Eight” congressional leaders should be formalized and strengthened.  If the President engages in a major conflict without proper consultation and authority, any four of the “gang”should have the power to force a record vote on impeachment of the president in the House of Representatives or a censure resolution in both the House and Senate.  For example, these standards would have triggered such consultation and review not only for the Soleimani killing, but also the Russian hacking campaign against the 2016 election.  

Critics of these reforms will complain they tie the President’s hands in the prosecution of a war.  If a conflict is truly momentous enough to give the  commander-in-chief wide-ranging power to prosecute it, there is a clear solution – seek and obtain a formal declaration of war.  At the other extreme, advocates of clandestine warfare will claim that applying the same authorization standards to lower profile cyber and drone attacks would unnecessarily expose our capabilities and risk spiraling the conflict into a shooting war.  Granting the President the right to seek a non-military response, however, lessens this threat, informs the American public of it and enlists their support in combating the threat.  It also would prevent the secret wars the act was designed to prevent and whose very existence also creates a risk of escalation. 

TR‘s most famous saying was “speak softly and carry a big stick”.  The most important element of this “big stick” was the knowledge that the American people would fight a war to a victorious conclusion.  At the same time, he knew from personal experience how horrible war could be and was proud no American service man died in combat during his presidency.  A realistic and restrained foreign policy assumes the costs of war only in those rare instances when the national security is directly in danger and thus when public support is more likely.  Those are exactly the wars America can and should win.  These reforms to the War Powers Resolution would help limit our wars to only those kinds of necessary conflicts.