The Trump Administration Is Out of Control!

There is a dangerous phrase creeping into American political life: “The president can do it because he is the president.” But this idea ignores the important concept of Limits to Presidential Power in our system of government. That is how the American republic was designed to work.

The Trump administration increasingly behaves as though the presidency is not one branch of government but the government itself—with Congress expected to comply, courts expected to get out of the way, federal agencies expected to obey personal commands, and constitutional limitations treated as inconveniences rather than boundaries.

This is bigger than Donald Trump. It is about whether America still believes in constitutional government.

And right now, the warning lights are flashing. Limits to Presidential Power seem to be eroding.

Consider the White House ballroom. The Trump administration is asking the Supreme Court to allow construction of a roughly $400 million ballroom to continue after a federal appeals court ruled that Trump lacked the unilateral authority to undertake the project without congressional approval. The court’s decision was not about whether the ballroom is attractive, useful or even necessary. It was about something much more fundamental: Who has the constitutional authority to control federal property and authorize major expenditures? (Reuters)

The answer is supposed to be Congress. But that answer increasingly seems unacceptable to this administration. (see Threats to Constitutional Balance, wwwtmichaelsmith.com).

The same pattern appears in voting. Trump issued an executive order attempting to impose sweeping new federal restrictions on mail voting and direct the Postal Service to participate in a national voter-verification system. A federal judge has now blocked key portions of that order, finding that the administration exceeded presidential authority and that the order threatened to interfere with the conduct of elections. (AP News)

Think about the constitutional implications.

The president does not get to rewrite the rules of American elections simply because Congress failed to give him what he wanted.

That is precisely why the Framers divided governmental power. They did not assume presidents would always be honorable, Congress always courageous or judges always perfect. They assumed human beings would seek power.

So, they built a system designed to make concentrated power difficult. Trump’s presidency is testing whether that system still works.

The Executive Branch Is Not the Imperial Branch.

The Constitution begins with Congress for a reason.

Article I gives Congress the legislative power—the authority to make laws, appropriate money and establish the rules under which the federal government operates.

Article II creates the presidency. That distinction matters. A president executes laws. He does not become the legislature simply because Congress is inconvenient. Nor does he acquire unlimited spending authority because he claims an emergency, acquire control over elections because he dislikes the way states administer them, or acquire the power to rewrite constitutional guarantees through executive order.

And he does not acquire the authority to ignore a court simply because he disagrees with its ruling. Yet again and again, this administration seems determined to test exactly where those boundaries lie.

Birthright citizenship provides another extraordinary example.

The Supreme Court rejected Trump’s effort to broadly eliminate birthright citizenship, reaffirming the constitutional protection associated with the 14th Amendment. Yet on August 6, Trump issued new executive orders seeking to narrow birthright citizenship through a different approach. The administration insists it is complying with the Court’s ruling; challengers argue that it is attempting to accomplish indirectly what the Court has already rejected directly. (American Immigration Council)

Whatever the ultimate legal outcome, the larger question should disturb every American:

What happens when a president treats a constitutional defeat as merely an invitation to try again with a different executive order?

That is not how constitutional government is supposed to function.

The Courts Are Becoming the Emergency Brake!

The courts have repeatedly been forced into the role of an emergency brake on executive power. That should concern conservatives as much as liberals.

Today the president may be Donald Trump. Tomorrow it could be someone whose policies conservatives despise. The constitutional principle must therefore be larger than the president. If conservatives believe presidential power is unlimited when their president is in office, they are not defending constitutional government. They are defending temporary political power. And temporary political power has a way of changing hands.

The Constitution is supposed to survive those changes.

That is why judicial independence matters. And congressional oversight matters and the separation of powers matters. The Framers rejected the very thing Trump increasingly seems to be constructing: an executive branch centered around the will of one man.

Congress Has a Responsibility Too!!

But there is another uncomfortable truth.

A president cannot accumulate this much power without Congress helping him do it—or failing to stop him. Congress was designed to be a coequal branch.

Instead, too many members of Congress have become spectators and cowards. The Constitution gives Congress enormous tools: legislation, appropriations, investigations, subpoenas, confirmations and impeachment.

Those powers mean little if legislators refuse to use them.

The Framers did not create Congress to issue press releases after the executive branch has acted. They created Congress to check the executive branch before power becomes entrenched.

If Congress surrenders its constitutional responsibilities, the president will naturally fill the vacuum. Power abhors a vacuum. Trump understands that.

This Is Bigger Than Trump!

The temptation is to dismiss all of this as another chapter in the endless Donald Trump drama.

That would be a mistake.

Trump will eventually leave office. The precedents he establishes may not. That is the danger.

Every time a president successfully stretches executive authority, the next president inherits that expanded power. All emergency power claimed today can become a tool for tomorrow’s president. And congressional authority surrendered becomes harder to reclaim.

The question is therefore not:

“Do I like Trump’s policies?”

The question is:

“Do I want any president to have this much power?”

Hopefully, the answer is no. Then this is the time that Americans must defend constitutional limits even when the president is pursuing policies they support.

That is what constitutionalism means.

The Republic Depends on Limits.

America was not founded on the principle that the strongest leader should win. It was founded on the opposite principle:

No leader is supposed to be strong enough to rule without limits.

The Framers had lived under a king. They knew what concentrated power looked like. They deliberately created a government in which ambition would collide with ambition, branch would collide with branch, and authority would be divided so that no individual could easily dominate the republic.

That system is being tested.

The Trump administration’s aggressive claims of executive authority, its repeated confrontations with the courts, its attempts to reshape election administration through executive action, its continuing battle over birthright citizenship and its fight to proceed with a major White House construction project without congressional authorization are not isolated controversies.

They are pieces of a larger question:

Does America still have a government of laws, or are we becoming a government of presidential will?

That is the line we cannot afford to cross. Because once Americans accept the idea that a president can do whatever he wants until somebody finally stops him, the Constitution has already been weakened.

The republic does not require a perfect president.

It requires something more important:

A president who understands that the office belongs to the Constitution—not the other way around.

And if the president refuses to recognize that distinction, then Congress, the courts, the states, the press and ultimately the American people must.

The Framers gave us the tools.

The question now is whether we have the courage to use them.

T. Michael Smith

wwwtmichaelsmith.com