Trump and the Powers of the American Presidency (Part II)

It was a few years ago, on a panel at American University’s Washington College of Law, that I heard Brad Berenson—who served in the White House Counsel’s office under President Bush—make an arresting statement about the American Presidency.

The Presidency, Berenson argued, is an office of terrifying power. There is no legal question—at least as a matter of domestic constitutional law—that the president has the authority to order a preemptive nuclear strike on Tehran. Indeed, there is really only one thing, Berenson said, that is scarier than a president who has such power in his sole command: a president who does not have that power.

I’ve been thinking a lot about Berenson’s words as I have watched Donald Trump’s rise to electoral plausibility over the past few months. As with my previous post in this series—which considered the domestic law enforcement and regulatory powers of the presidency in the hands of a man who wears his vindictiveness on his sleeve and openly promises constitutional violations and abuses of power—I want to argue here that the possibility of U.S. arms and war powers under Trump’s control gives rise to deep concerns that inhere in the nature of the presidency itself.

And as with my previous post, I want to argue that it is some of the presidency’s deepest institutional virtues, not its institutional vices, that make it terrifying in the hands of a man like Trump. It is because of these virtues that while the office has proven pretty tyrant-resilient, even tyrant-resistant, it cannot be made, as some commentators have been urging, “tyrant-proof.” That is, to make the presidency secure from a man like Trump, you would have to do a lot of things to disable it that are almost certainly unconstitutional and certainly a bad idea; you’d have to do things to the presidency that would render it—in Berenson’s framework—the one thing scarier than a presidency Trump could abuse.

I say all this as someone who was a fan of Alexander Hamilton before being one was cool. Indeed, notwithstanding Hamilton’s sudden hip-hop fame, it still may not be cool to admire his views of executive authority and unity. But I make no apologies: Federalist 70 is still the essential starting point in a discussion of the presidency’s virtues—and why Trump is so unfit to wield them.

“Energy in the Executive,” wrote Hamilton, “is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks. . . .” The reason? “A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.” Translation: If you want government to do things, you have to have an executive capable of it.

The key to “energy in the executive,” in Hamilton’s view, is the branch’s unity. It is from that unity that the executive’s other capacities derive. “That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.” Translation: the fact that the president’s power is all vested in a single person makes it possible for that person to act quickly and decisively.

“This unity,” Hamilton goes on, “may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him.” Translation: If you put legal or institutional fetters on the presidency even in the name of preventing tyranny, you will you deprive the office of the flexibility that makes it effective.

The modern presidency has considerable institutional fetters which Hamilton surely never imagined and of which he frankly might not have approved. But it also has powers which he did not imagine. In particular, the war powers have migrated—to what degree is a matter of debate but certainly to some degree—from the legislature to the presidency, bringing unity of action and decision-making to the powers of war and peace to a degree the founders certainly did not envision. Similarly, the rise of international executive agreements that are not subject to the demands of the treaty power have concentrated a great deal of foreign policy authority in the hands of the president. And the growth of the standing, institutional military has made the commander in chief power a much bigger deal in peacetime than it was in Hamilton’s time.

As Antonin Scalia once wrote, the vesting of the Executive Power in the hands of the President “does not mean some of the executive power, but all of the executive power.”

It is, I want to stress, not inevitable that the presidency works this way. It is a design feature of the American republic on a matter about which other republics have decided differently. In Israel, for example—another democratic country that has ongoing security issues and fights wars semi-regularly—the power to take the country to war is not vested in the prime minister but in the government, a collective body. What’s more, the government—and the prime minister himself, for that matter—serve at the discretion of the legislature. So the executive power is not unified and the executive can be dismissed for policy reasons alone. If the Knesset decides that the prime minister is a nut, it passes a vote of no-confidence and the government falls. Most parliamentary democracies are far closer to Israel on these points than they are to American separation of powers in its vesting of the entire executive authority—including the power to order the military into battle—in a single person who cannot be removed with a vote of legislative no-confidence.

The American system has a lot to recommend it. It generates not merely decisiveness of action, but also political accountability for that action—what Hamilton called “a due dependence on the people” and “a due responsibility.” Divide up the executive authority and nobody really knows who gets credit for success and who gets blame for failure. Nobody is responsible for anything in Israel, for example. Give all the responsibility to one president, and that is not really a problem. Nobody doubts who is responsible for Obamacare, for example, or for the Iraq war.

Now let’s a consider a few words, names and phrases next to one another:

• “The executive Power shall be vested in a President of the United States of America.” —Article II of the Constitution
• “This does not mean some of the executive power, but all of the executive power.” —Antonin Scalia
• “vesting of the entire executive authority—including the power to order the military into battle—in a single person who cannot be removed with a vote of legislative no-confidence.” —me
• Donald J. Trump

Indeed, where things get sticky, terrifying really, is where—and there’s no polite way to say this—the president is not sane or a reasonable person has cause to doubt his sanity.

Because when you’re talking about putting all of the executive power in the hands of one person with the express ambition that this person be able to use the power of the federal government to do things, one has to have a certain amount of confidence about what that person wants to do.

That doesn’t mean, by the way, that you have to agree with what the person wants do—though that certainly helps. The people, after all, have a right to vote against my conception of the public good without my fearing for the security of democratic life. But one does need confidence that, to go back to Berenson’s example, the person will not launch a preemptive nuclear strike on Tehran for no good reason. And one has to believe that the person will use the federal government to advance a vision of the good that is not driven by either egomania or by some other profound ideational distortion.

In Trump’s case, there is scant basis for confidence on either point. In her speech last week on her opponent and national security, Hillary Clinton declared that “it’s not hard to imagine Donald Trump leading us into a war just because somebody got under his very thin skin.” (Trump’s response? “I don't have thin skin. I have very strong, very thick skin.”)

The trouble with Clinton’s argument is that it is not just campaign rhetoric. It’s analytically accurate. We have literally no idea how Trump would use the awesome powers of the presidency. We know that he has promised to abuse them in any number of ways: from committing war crimes to retaliating against his political enemies. And we know that discussion of the man tends to veer pretty quickly into the realm of the clinical. But with very few exceptions, Trump doesn’t articulate policy. He articulates mood, anger, affection for those who say nice things about him, and the desire for retribution against those who criticize him. Mostly, he promises government by magic: great deals, winning, America being great again. And magic is one power that the American presidency does not have.

The American presidency, because of its unity and structural independence, is not all that well-positioned to fight off an abusive madman, once that person is elected and sworn in. There are really only a few tools available. The impeachment power gives the Congress the ability to remove the president for “high crimes and misdemeanors,” but that’s available only retroactively, not before damage happens. In the event of evident insanity, the 25^th Amendment allows the vice president “and a majority of . . . the principal officers of the executive departments” to notify the House and Senate that “the President is unable to discharge the powers and duties of his office” because of disability; in such situations, the vice president becomes acting president. The people themselves can oust a president electorally four years after his installation. Along the way, the institutional bureaucracies that make up the federal government can push back against abuses and craziness, exploiting the fact that the executive branch—as it has developed—is at least a little bit less unitary than Hamilton imagined. Finally, Congress, of course, retains the authority to exercise its own powers to push back against a president it considers a threat. And the courts can block policies that violate the law. All of these defenses fall into the categories of tyrant-resistance and tyrant-resilience.

But in the ordinary course of business, nobody gets to remove from the hands of the president the vast powers that he lawfully wields: the power to destabilize regions, launch military adventures, abrogate agreements, and destroy alliances. These powers are inherent features of powers of the presidency, and they are inherent powers that we actively need.

The effort to do what well-meaning folk call “tyrant-proofing” the White House is inevitably an effort at whittling away at the unitary structure of the executive itself, making presidential authority subject to what Hamilton called “the control and co-operation of others, in the capacity of counsellors to him.” It’s an effort at having less energy in the executive because we are afraid of what bad people will do energetically.

It too is dangerous. The danger is that in our fear of Trump, we will endeavor to create the one thing scarier than an executive branch he could abuse: An executive branch he could not abuse because it lacks energy to do very much of anything. The danger is that we let the power to do either atrophy or migrate downward into the bureaucracy. Think of the American Presidency as a kind of European Commission with a figurehead, titular leader.

I want to suggest, in closing, that the problem here is not a structural flaw in the executive branch. That we are contemplating our fears of a Trump presidency reflects, rather, a flaw in the electorate that would contemplate his election and in the political leadership of one of our major political parties—leadership that prefers to back him than repudiate him. In a democracy, the people, generally speaking, get the president they ask for. And if the populace asks for an abusive, erratic, proudly ignorant figure of no coherent policy vision, it’s going to get that. It is far too much to ask of the Constitution and the structure of the executive branch to expect insulation from the consequences of that decision.