Don’t Just Impeach Trump. End the Imperial Presidency.
President Donald Trump’s domestic agenda is a shambles, and his administration is besieged by scandal. He has been badgering Senate Majority Leader Mitch McConnell all week for failing to repeal and replace Obamacare, a futile exercise in browbeating. The good news is that, as Washington Post columnist Charles Krauthammer noted recently, institutions have proven willing to stand up to Trump, ranging from the military (which won’t carry out his ban on transgender people serving) to the Senate (which defended Attorney General Jeff Sessions from Trump’s attempt to elbow him out of office) to the Boy Scouts (which criticized the president for politicizing his appearance at their annual jamboree). “The institutions of both political and civil society are holding up well,” Krauthammer wrote. “Trump is a systemic stress test. The results are good, thus far.”
But the more ineffectual Trump is in domestic politics, the louder and scarier he is on the international stage. Even if we accept Krauthammer’s contention that the “guardrails” of political and civil society are preventing Trump from fundamentally damaging American society, Trump still enjoys enormous unchecked power abroad. Perhaps precisely because he is thwarted at home, Trump is now more prone than ever to lash out against foreign foes. This week, he used the incongruous setting of a photo op at Trump National Golf Course in New Jersey to threaten North Korea with nuclear annihilation. “North Korea best not make any more threats to the United States,” he warned. “They will be met with fire and fury like the world has never seen.” He doubled down on those remarks on Friday, tweeting:
What makes these words terrifying, even if we make every allowance for Trump’s bluster, is that he has the power to make them true. America’s nuclear chain of command grants a president absolute authority to launch preventive nuclear strikes whenever desired. In 1974, as his presidency was capsizing, Richard Nixon reflected that, “I can go into my office and pick up the telephone, and in 25 minutes 70 million people will be dead.” Trump enjoys that same power.
Much has been made of Trump’s manifest authoritarian tendencies: that he sees politics only in terms of domination, his habit of praising extrajudicial violence, and his proclivity for breaking norms. Yet Trump’s authoritarian tendencies would not get him very far without a mechanism for enacting his wishes, and his nuclear threats make clear what that mechanism is: the Imperial Presidency. The powers of the office are not just those enumerated in the Constitution, but the extra-constitutional powers the presidency has acquired over the decades—especially the ability to start wars at whim. It’s taken someone as frightening as Trump to make plain that Congress must act to restrain not just the sitting president, but the office itself.
Historians and political scientists often use the term “Imperial Presidency” to refer to the fact that the American president, at least since the dawn of the Cold War in the 1940s, has war-making powers closer to that of an absolute monarch than an officeholder in a republic who is bound by the rules of law. If we are worried about Trump inflicting great harm on the world, it’s the powers of the Imperial Presidency that enable him to do the most damage.
The Imperial Presidency rests on an ambiguity in the Constitution. In theory, the president is coequal to Congress and to be held in check by it. But in times of war, the requirement of national unity almost always leads Congress to defer to the president. As Alexander Hamilton noted in “The Federalist 8,” “It is of the nature of war to increase the executive at the expense of the legislative authority.” Throughout the nineteenth and early twentieth century, the American political system seesawed: in times of war, the presidency was dominant; in times of peace, Congress was.
The permanent emergency of the Cold War created an unrelieved wartime footing in which presidents entered America into large conflicts, like the Korean War and the Vietnam War, without a formal congressional declaration. The emergence of nuclear weapons further centralized power in the hands of the president. Under the nuclear deterrence theory that America adopted in the 1950s, a president had to be prepared to launch an attack immediately, which meant no time to consult Congress.
The consequence, as the historian Arthur Schlesinger, Jr. wrote in his classic study The Imperial Presidency (1973), was “the all-purpose invocation of ‘national security,’ the insistence on executive secrecy, the withholding of information from Congress, the refusal to spend funds appropriated by Congress, the attempted intimidation of the press, the use of the White House as a base for espionage and sabotage directed against the political opposition—all signified the extension of the imperial presidency from foreign to domestic affairs.” The end result was “by the early 1970s the American President had become on issues of war and peace the most absolute monarch (with the possible exception of Mao Tse-tung of China) among the great powers of the world.”
Schlesinger was writing during the Watergate scandal. The Nixon presidency was both the height of the Imperial Presidency and also the beginning of its decline, at least for a few years. In the wake of Nixon’s abuses, Congress pushed back. In 1973, over Nixon’s veto, Congress passed the War Powers Resolution, which limited a president’s war-making ability, requiring the White House to notify Congress about the use of force and forbidding deployment beyond 90 days without a congressional authorization for use of military force. Other measures of the period include The Congressional Budget and Impoundment Control Act (1974) which reasserted congressional control of spending.
Writing in The Wilson Quarterly in 2002, Donald R. Wolfensberger, then director of the Congress Project at the Wilson Center, listed other examples of Congress rolling back the Imperial Presidency:
The Federal Election Campaign Act of 1974 was supposed to eliminate the taint of big money from presidential politics. Subsequent years witnessed a spate of other statutes designed to right the balance between the branches. The National Emergencies Act (1976) abolished scores of existing presidential emergency powers. The Ethics in Government Act (1978) authorized, among other things, the appointment of special prosecutors to investigate high-ranking executive branch officials. The Senate, in 1976, and the House, in 1977, established intelligence committees in the wake of hearings in 1975 revealing widespread abuses; and in 1980 the Intelligence Oversight Act increased Congress’s monitoring demands on intelligence agencies and their covert operations.
As Wolfensberger noted, these restraints on the Imperial Presidency were only partial and often ineffectual, as post-Nixon presidents found ways to work around them. The Reagan administration, with the pretext of a renewed Cold War, tried to undermine congressional limits on aid to the Contras by using funds from secret arms sales to Iran. President George H. W. Bush tried to finesse the issue by getting congressional authorization for the Gulf War, but also saying that it wasn’t necessary. President Bill Clinton bombed Kosovo with support from a Senate resolution that failed in the House of Representatives.
Whatever limits there might have been on presidential power ended with 9/11. After President George W. Bush delivered a stirring speech in the weeks after the attack, presidential historian Michael Beschloss cheered on television that “the imperial presidency is back. We just saw it.” Under the auspices of the unitary executive theory promulgated by Vice President Dick Cheney, the U.S. entered the era of warrantless wireless searches, the kidnapping and torture of terrorist suspects held indefinitely in secret prisons, and an undefined and undeclared global war on terror.
While President Barack Obama might have tried to bring some semblance of legality to Bush’s expansion of presidential power, there was no real curtailment of it. Instead, with his use of drones and assassination of Osama Bin Laden, Obama’s goal was to act as a more efficient and focused Imperial President. As Alex Emmons noted earlier this year in The Intercept, Obama left behind a presidency with vast, unchecked powers that could easily be abused by Trump. “President Obama has spent much of his time as commander in chief expanding his own military power, while convincing courts not to limit his detention, surveillance, and assassination capabilities,” Emmons wrote. “Most of the new constraints on the security state during the Obama years were self-imposed, and could easily be revoked.”
Trump is not just the heir to the Imperial Presidency; he represents a new crisis of it. His blatant incompetence and instability demonstrates the dangers of investing so much power in the hands of one person. At the heart of the Imperial Presidency is the “thermonuclear monarchy” enjoyed by the president, who has the ability to launch a nuclear war at will. Writing in Politico Magazine on Friday, Garrett Graff outlined how it works: “That the president has almost unlimited and instantaneous authority to push the [nuclear] button. It’s undoubtedly the most powerful unilateral action that a commander in chief can take. Whereas there are careful multi-branch checks on most presidential powers, over many decades the U.S. carefully honed its nuclear launch procedures to strip away any check or balance that could delay or stymie a launch.”
The journal Scientific American has just published an editorial in its August issue, calling for an end to the the president having sole power over nuclear weapons:
With the exception of the president, every link in the U.S. nuclear decision chain has protections against poor judgments, deliberate misuse or accidental deployment. The “two-person rule,” in place since World War II, requires that the actual order to launch be sent to two separate people. Each one has to decode and authenticate the message before taking action. In addition, anyone with nuclear weapons duties, in any branch of service, must routinely pass a Pentagon-mandated evaluation called the Personnel Reliability Program—a battery of tests that assess several areas, including mental fitness, financial history, and physical and emotional well-being.
There is no comparable restraint on the president. He or she can decide to trigger a thermonuclear Armageddon without consulting anyone at all and never has to demonstrate mental fitness. This must change. We need to ensure at least some deliberation before the chief executive can act.
One alternative to the thermonuclear monarchy is to require the president to have the support of high-ranking members of Congress before he can call for nuclear strikes. Graff suggested that America consider “whether our nuclear command system should include a second voice, either from the vice president, the secretary of defense or a congressional leader.” In this new system, there would be a “two-person rule” from the top of the chain of command to the bottom. An order to launch an attack would require the authorization of the president and a second person. Making that person the speaker of the House would be more in keeping with the original balance of the Constitution, restoring to Congress a say in war-making decisions.
Stripping Trump of sole control of nuclear weapons should be part of a larger rollback of the Imperial Presidency, one that could take lessons from the laws enacted by Congress in the 1970s and indeed go even further. Beyond nuclear weapons, the heart of the current Imperial Presidency is Authorization for Use of Military Force that Congress passed three days after the 9/11 attack. The AUMF is the blank check that allows U.S. presidents to wage an endless global war on terror, a war without border and without any foreseeable conclusion. Democratic Representative Barbara Lee has been waging a lonely battle against the AUMF, calling for its repeal.
Trump’s unstable behavior should worry all of Congress, both Republican and Democrats. He often blurts out threats—sometimes, as in the case of his rant about North Korea, saying things that are contradicted by his own secretary of state and secretary of defense. Trump’s erratic actions show how dangerous the Imperial Presidency can be when the president is a madman. The power he enjoys is far beyond what any one person should have in a democracy.
The remedies for Trump have to be institutional rather than just personal. It’s not enough for Trump to be impeached and removed; Congress must address the fact that the presidency has too much foreign policy power. The thermonuclear monarchy must end, the AUMF should be repealed, the drone program should only continue with congressional approval, and the NSA surveillance program should be tightly monitored by Congress. The courts are doing their part to check the White House. It’s time the other co-equal branch of the government do the same, and put an end to the Imperial Presidency for good.
via New Republic http://bit.ly/2mvRCvv
August 12, 2017 at 03:03AM