How Republicans Violate the Constitution

Heretofore, in this blog I have been focusing on the threat that President Trump poses to our democracy.  Since Congress has the authority and responsibility to control the president’s anti-democratic behavior, however, it’s important to broaden our study to include the failure of Congress, and specifically the Republican Party, to fulfill its constitutional obligations.

The Constitution is not a perfect document and can easily be misused.  But with its amendments and interpretations through the courts, it is still the bedrock of our political life together to which government must ultimately defer. 

Article 1 of the Constitution explicitly obligates Congress to curtail presidential abuse of power.  Having experienced the tyranny of the English King George III who had ruled the colonies with an iron fist, the framers of the Constitution limited the president to only a few absolute powers and gave both the legislature and the courts the authority and the responsibility to check the president’s abuse of power. 

Since President Trump’s inauguration, however, Congress has abdicated this obligation.

As I have explored in the past four posts,

The Constitution explicitly assigns the president [only] the power to sign or veto legislation, command the armed forces, ask for the written opinion of their Cabinet, convene or adjourn Congress, grant reprieves and pardons, and receive ambassadors.

The president also has significant power to control the formation and communication of foreign policy although Congress ultimately has the power to limit this, too.

 
There are two procedures through which Congress can limit the abuse of presidential power.

• First, Congress can pass legislation nullifying the specific presidential action.  This happened recently when the President withdrew sanctions on Russia; Congress immediately passed legislation to reinstate the sanctions.  The president, however, can veto any such legislation, and the veto can only be overruled by a two-thirds vote of both houses.  
• Second, Congress can impeach the president and remove them from office.  Impeachment requires only a majority of the House but removal requires a two-thirds vote of the Senate.

Neither party has had a two-thirds majority in either house of Congress since 1945; therefore, any veto override or impeachment has required bipartisan cooperation.  Since the Democrats currently would vote almost unanimously to control Trump’s excesses, the Republican Party is solely responsible for Congress's failure to limit the President. 

The Republican Party is complicit in all of the President’s threats to democracy.

One Republican bears special responsibility.  Senator Mitch McConnell has used his power as Majority Leader to prevent any legislation challenging the president from even being considered or voted upon by the Senate, so he is primarily accountable for congressional inaction.

As I’ve written in a previous post, historically, this particular congressional failure is not the only or even the most important of the abdications of its constitutional role.  Certainly more important has been Congress’s ceding to presidents the power to declare war.  This has been a gradual process over the last century, however, so the responsibility must be shared by many different congresses over decades.  It’s reasonable to conclude, therefore, that the current unwillingness to prevent Trump’s attack on our democracy is the broadest and most important single failure of congressional responsibility in the history of our country.

To summarize: we now have a breakdown in the essential checks and balances between Congress and the President that has

• historic roots in Congress’s long-term failure to maintain its exclusive power to declare war, and
• current roots in Republicans’ refusal to rein in Trump’s excesses.

The politics of this breakdown, I’m afraid, make its reversal problematic.  In practical terms, it would take a two-thirds majority of Congress and a president from the opposite party to restore proper checks and balances according to our Constitution. 

That’s not going to happen anytime soon.

Even aside from the politics involved, the nature of the presidency has changed so much since the country’s founding that abiding by strict constitutional limits would wreak havoc in our government.  By “the president” the Constitution means the entire administration of government and the vast number of powers ceded to the administrative functions upon which government (and every individual) rightly depends.

And if we can’t abide by the original limits, some might say, perhaps we need an amendment to the Constitution that would address how the role of the president has changed over 200+ years.  Given the complexity of government, however, how could such an amendment to our Constitution be formulated or passed, to say nothing of being implemented? 

In the end, then, we’re stuck with a Congress that could limit any particular action by the president but won’t.

That places all hope of change from within government on the courts, which, we must acknowledge,  have so far been relatively dependable in slowing down the American movement toward autocracy; but only in slowing it down.

The precariousness of our democracy is obvious, and there no permanent fix.  At this point in American history, then, the temporary stability of our democracy depends upon our electing an emotionally and mentally stable president, who is willing to and able to place the interests of the country over their own.  We have two years to educate ourselves, choose and support strong and stable candidates at all levels, and elect a president who will, at least for the time being, give America’s fragile democracy some breathing room.

Understanding Presidential Powers

 … and countering them

UNILATERAL POWER
Last of Four

In previous posts we've examined presidential power in declaring a national emergency (here and here), which is particularly relevant after President Trump's declaration yesterday (February 16).  We've also looked briefly at presidential powers under other laws (here), including the top-secret “Presidential Emergency Action Documents” (PEADS). 

As I mentioned in my first post in this series, it’s important to remember that some degree of unilateral presidential power is essential to the functioning of government.  In the event of a true emergency, such as a natural disaster, it can be essential that the government respond immediately without having to wait for congressional debates or other delay.  In addition, many of the unilateral powers were necessary at the time they were put into effect but have remained active because the Administration has never allowed them to elapse.  (Before the National Emergencies Act of 1976, there were several hundred emergency provisions still on the books, many of them confined to a particular historical emergency.)  Even since the National Emergencies Act (intended to limit the president's use of unilateral power), there have been 58 national emergencies declared, 31 of which are still in effect.  As in Trump's present declaration in order to build the Mexican border wall, most of these national emergencies have been declared in order to authorize economic action, usually, however, sanctions against other countries.  Nevertheless, there are provisions in many of these declarations that allow much broader power, for instance, when innocent Muslim charitable organizations and individual Muslims themselves were targeted and arrested after 9/11.

Under the Constitution's Article I, only Congress has the power to declare war.  Article II, however, makes the president commander-in-chief.  Taken together these two provisions require cooperation between Congress and the president.  Unfortunately, presidents have used the commander-in-chief provisions to provide rationales for "military actions" that were euphemisms for the Korean War, the Vietnam War, Operation Desert Storm, the Afghanistan War of 2001 and the Iraq War of 2002.  These presidential actions have been of dubious constitutionality, but Congress has never challenged them.  For all practical purposes, then, presidents now have the power to declare war.

Furthermore, presidents have used "executive orders" to take a wide variety of actions that would usually (and properly) be considered prerogatives of Congress.  This is a far too complicated an area of law for my expertise, but it is an important source of presidential power.  President Obama, for instance, used executive orders to create many provisions of environmental "law." President Eisenhower sent troops into Little Rock, Arkansas, to desegregate the schools.  President Truman desegregated the military.  President Roosevelt interned people of Japanese descent during WWII, and so on.

These almost unlimited presidential powers—some never used, some infrequently, and others seemingly all the time—are always available to presidents and are, as our experience with President Trump reminds us, stark threats to our democracy. 

Almost all European democracies explicitly limit the power of the chief executive by limiting the length of time that the power is in effect, by specifying carefully what the executive order can do, by granting the legislature important power over the chief executive, and by creating other legislation.

Presidential Power Granted by the Constitution
The American Constitution deliberately limits presidential power.  Almost every presidential power is subject to congressional override, even without impeachment.  The only exceptions are the president's

• function as commander-in-chief,
• control over formation and communication of foreign policy and
• control of the diplomatic corps.

Theoretically, then, Congress could limit a president's power almost completely (although the president's control over foreign policy has recently created much havoc).  Any action the president takes under the National Emergency Act, for instance, could be reversed by a 2/3 vote of Congress.  The problem is that Congress virtually never uses this authority.  (Congress's recent vote to reestablish sanctions on Russia is a rare exception.)

The important point is that in theory there are actually few unilateral presidential powers.  Virtually all the dangerous powers we've been discussing in the last three posts could be countermanded by Congress.

Congress and Unilateral Presidential Powers

Theory, of course, is different from practice.  The current polarization of our politics means that few important decisions of any controversy can pass through Congress.  Severe partisanship isn’t new, however, and even the impeachment of President Nixon, often lauded as a prime example of bipartisanship, was nothing of the sort.  For many months preceding the discovery of the undeniable evidence of "high crimes and misdemeanors," Republicans were castigating the investigation as a "witch hunt" and accusing the Washington Post of "mudslinging."  Even after the discovery of the "smoking gun," reports the New York Times,

[Vice-President] Ford said he found nothing wrong with the president’s practices.  Republican Senator John Tower of Texas later warned Congress not to get caught up in “the hysteria of Watergate.”

President Nixon's ultimate resignation was the result of an investigation that pummeled both him and the Republican Party with evidence,

Reversing the Frightening Unilateral Powers of the Presidency

We will not easily or automatically reverse the dangerous and frightening accumulation of presidential power that threatens our democracy.  Such reversal ultimately depends completely on congressional action, and in our current political structure such action cannot happen.  It will not be done by one popular movement or one simple legislative action, either.  It will take long-term, concerted grass-roots political pressure and resolve of a kind the American populace—with the possible exception of the civil rights movement—hasn’t mustered in decades.

But if we the electorate fail to reign in unilateral, abusive presidential power, we have even now relinquished our democracy.  We have lost already. 

Those of us committed to democracy and to restoring the proper balance in American government must pledge ourselves to a determined effort over a long haul.  We must confront each presidential abuse and begin a movement through the slow process of educating the electorate.  It will not be a short or simple process.  It will take the long-term perseverance and courage that characterizes any important movement for justice.

It has happened before, however!  In 1978, the bipartisan Church Committee, led by Senator Frank Church, held hearings that eventually resulted in the Foreign Intelligence Surveillance Court (FISA), significantly limiting the power of the executive branch of government in its surveillance activities.

Using the Church Committee as example and precedent, Congress could repeal the laws that are obsolete or unnecessary.  It could revise others to include stronger protections against presidential abuse.  It could issue new criteria for emergency declarations, require a connection between the nature of the emergency and the powers invoked, and prohibit indefinite emergencies.  It could limit the powers set forth in PEADS.

That will not happen without our deep commitment to democracy.  We are not helpless!

Other Presidential Powers

UNILATERAL POWER

Part III of Four

As I wrote in Part I of this series (The National Emergency Act and Unilateral Power), these four posts depend heavily upon an article in the “Atlantic” magazine written by Elizabeth Goitein in January 2019.

My most recent post explored a few of the better-known, unilateral powers that become available to presidents when they declare a national emergency.  In this post we will examine three specific, extraordinary, but less well-known powers, that can also be activated by presidential decree. 

The International Emergency Economic Powers Act
The International Emergency Economic Powers Act, or IEEPA, passed in 1977, allows the government to freeze or block assets of belligerent foreign governments or foreign nationals under “unusual and extraordinary threat to national security, foreign policy, or the economy.”  Presidents have used this law mostly to apply sanctions to hostile countries.  After 9/11, however, President GW Bush issued an executive order greatly expanding these powers by applying them also to organizations and individuals within the United States (including citizens).  Under this expansion, a person or charity could be designated even if there were only a suspicion that they were aiding a terrorist or a terrorist organization.  

Once a person or organization is “designated” under the order, writes Goetin,

no American can legally give him a job, rent him an apartment, provide him with medical services, or even sell him a loaf of bread unless the government grants a license to allow the transaction.  The Patriot Act [then] gave the order more muscle, allowing the government to trigger these consequences merely by opening an investigation into whether a person or group should be designated.

Several Muslim charities in the US, for instance, were designated only on the suspicion that their charitable contributions overseas benefited terrorists; no proof was needed. 

The provision also snared individuals.  Goitein again:

The Treasury Department [part of the Executive wing of the government and thus subject to the president] designated Garad Jama, a Somalian-born American, based on an erroneous determination that his money-wiring business was part of a terror-financing network.  Jama’s office was shut down and his bank account frozen.  News outlets described him as a suspected terrorist.  For months, Jama tried to gain a hearing with the government to establish his innocence and, in the meantime, obtain the government’s permission to get a job and pay his lawyer.  Only after he filed a lawsuit did the government allow him to work as a grocery-store cashier and pay his living expenses.  It was several more months before the government reversed his designation and unfroze his assets.  By then he had lost his business, and the stigma of having been publicly labeled a terrorist supporter continued to follow him and his family.

The problem in our context is that the president can designate an individual or an organization unilaterally, regardless of the nature of the emergency.  Congress remained silent in the face of President Bush's actions so the provisions of IEEPA have never been constitutionally tested.

The Insurrection Act of 1807
Another set of presidential powers exists under the Insurrection Act of 1807.  Despite the age of the Act, it’s still in effect although it has been amended several times.  Under this Act, the president may

deploy federal troops unilaterally if he determines that “rebellious activity” in the country has made it “impracticable” to enforce federal law through regular means or because he deems it necessary to suppress “insurrection, domestic violence, unlawful combination, or conspiracy” (terms not defined in the statute) that … “hinders the course of justice.”  [Goetein]

Before reading Goetein’s article, I believed, like many, that the Posse Comitatus Act of 1878 prevented the military acting as a domestic police force.  But it turns out this is not true: the Act states that the authority to use the military for law-enforcement purposes must derive from the Constitution or from a statute, and, it seems, it’s the president who makes the determination of what derives from what.  President Eisenhower sent troops into Little Rock, Arkansas, to enforce school desegregation.  President HW Bush sent troops into Los Angeles to quell the Rodney King Riots in 1992.

The extent to which President Trump could use these powers, and under what conditions, are not well-defined.  The Supreme Court has been vague in many of its interpretations.  But if President Bush could send troops into Los Angeles to quell riots, why could President Trump, (justified by a few violent actions of Antifa, the radical left-wing, direct action, political action group), not send troops into Washington to break up a demonstration against his policies?  The extent of presidential power in this example is not clear, of course, but there is enough precedent for the president to take immediate action and let the courts work it out later.

This is another of the troubling realities of President Trump's possessing such unilateral powers: Many of them have never been used, and so have never been tested in the courts.  We don’t know what the limits on presidential powers in such situations could be.  Under this President, the dangerous possibilities are many.

Presidential Emergency Action Documents

Finally, there exists a series of “Presidential Emergency Action Documents” (PEADS) that originated in the 1950s during the Eisenhower administration.  They were intended to ensure continuity of government in the wake of a Soviet nuclear attack.  These documents – added to and updated from time to time – comprise draft executive orders, proclamations, and messages to Congress.  Like other emergency orders, however, they can be used during any other emergencies, too.  Unfortunately, PEADS are confidential and closely guarded within the government; none has ever been publicly released or leaked.  But their contents have occasionally been described in public sources.  Some provisions would

authorize not only martial law but the suspension of habeas corpus by the executive branch, the revocation of Americans’ passports, and the roundup and detention of “subversives” identified in an FBI “Security Index” that contained more than 10,000 names.

Other than these general descriptions, we have no idea how circumscribed (or not) these provisions are.  They were created in a time when presidents could be trusted to act responsibly.  What happens when they can't be trusted?

The only way most of these presidential powers could be limited is through congressional action, usually a two-thirds vote of each House of Congress.  Since Congress has so far not even discussed limiting, for instance, the clearly unconstitutional, de facto, war-making powers that presidents have used for decades, it seems highly unlikely that this Congress would be willing to consider limiting all these many powers.

Other Congresses have managed to, however.  In 1978, the bipartisan Church Committee, led by Senator Frank Church, held startling hearings on the misuse of intelligence powers.  The hearings culminated in the Foreign Intelligence Surveillance Act (FISA), which significantly limited the surveillance power of the executive branch of government.

Those were bipartisan times, however.  As long as we continue along this fratricidal political path—seeing each other not as colleagues but enemies, thinking of compromise as betrayal—there is little chance that a similar committee could ever develop in 2019.

These almost unlimited presidential powers, infrequently used but available still, are, as President Trump's behavior reminds us, stark threats to our democracy.  They will not be easy to reverse.  It’s important to educate the electorate now about the threats in order to begin a movement.  It will not be a short or simple process to teach people or transform that them into an educated electorate! 

But we must begin!  In the next post we'll look with clear eyes how to begin.