Donald Trump is running a presidential campaign that often seems to be more about projecting strength than it is about specific policy positions. Trump presents himself to voters as a “strong man” type who would deport more than 10 million people currently living in the United States, bar Muslims (temporarily, he says) from entering the country, shut down mosques, and perhaps set up a national database to track Muslims.
Given that Trump is now the presumptive Republican nominee, it’s worth considering how his “strongman” approach would play out in office. Some are skeptical of his rhetoric, arguing that Trump, if elected, would have to contend with the reality that presidents generally cannot act alone. The Constitution divides most powers between the president and Congress: Presidents cannot go to war unilaterally; they cannot make unilateral decisions about most matters involving national security. The constitutional system of separation of powers uses checks and balances to make sure no one branch of government has concentrated power.
RELATED: Will Obama’s Executive Overreach Be Policed?
That is certainly correct, in theory. In practice, however, recent presidents have shown a willingness and ability to write Congress out of the equation. A President Trump who determined to act without Congress would have recent precedent to draw on — beginning with the unitary executive theory relied on by the Bush administration. Obama also has pushed the envelope on the domestic front, including his decision to protect millions of undocumented immigrants from deportation for three years. Federal courts have concluded Obama lacked authority to take this action. In regards to foreign policy, it’s certainly worth remembering that Obama used military force against the Libyan dictator Qaddafi without congressional approval, which he now calls the worst mistake of his presidency. He also assassinated an American citizen by way of a drone strike. And just recently, he has sent more ground troops to Syria in an unauthorized war against ISIS.
Recent presidents have shown a willingness and ability to write Congress out of the equation.
Such overreaching actions accord with the unitary-executive theory, which rejects the idea of checks and balances, claiming unchecked power for the president, even the power to set aside criminal laws. As political scientist Jim Pfiffner observes, this theory assigns presidents “powers once asserted by kings.” I am on the side of those who assert that the Bush administration invoked the unitary-executive theory to justify torture and warrantless surveillance prohibited by criminal law, and who believe that John Yoo, then deputy assistant attorney general, was wrong to write in his memorandum of September 25, 2001: “The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001.”
#share#It is well worth finding out what Trump — and other candidates, for that matter — think of the unitary-executive theory. During the 2008 election, reporter Charlie Savage surveyed the presidential candidates to ask specific questions about the scope and limits of executive power. Obama said, “The president does not have power under the Constitution to unilaterally authorize military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” Of course, getting candidates on the record is not enough; as noted above, President Obama has not adhered to the limits on power he acknowledged when answering Savage’s questions as a candidate.
RELATED: Liberal Law Prof: Obama’s Executive Amnesty ‘Tearing at the Very Fabric of the Constitution’
So, given the precedents, it is a useful starting point to ask Trump and other candidates whether they acknowledge constitutional limits on presidential power. Some of Trump’s public statements suggest he believes that constitutional limits would not bind him. For instance, during a debate, Trump said that President Obama lacked the “courage” to use military force against the Assad regime in Syria in 2013. In reality, President Obama would have needed congressional authority to act in Syria (though Obama never presented a war plan to Congress or asked for this authority). Trump seemed to dismiss this constitutional question.
Trump has also said that he would order the military to carry out waterboarding, declaring that they would follow his orders, whether lawful or not. Trump seemed to later backtrack when he said he would “stay within the laws” in responding to ISIS — but his new position does not immediately make sense.
RELATED: Obama’s Legacy Is Executive Abuse
Trump said he’d like to change the law to allow waterboarding. But if we believe, as I do, that waterboarding is torture, and we know that torture, by definition, is illegal — both under U.S. law and international law — then Trump’s new pro-waterboarding law (if he managed to get it through Congress) would overturn long-established precedent. Would that be in the best interests of the United States? The U.S. has signed a U.N. treaty prohibiting torture and other cruel, inhuman, or degrading treatment or punishment. Would Trump have the United States withdraw from the treaty? If Congress did not support him, would he act anyway?
#related#Candidate Trump has proposed a number of radical, dangerous ideas. He is running a campaign based in large part on the promise that he would be a strong leader who would take actions other presidents have been unwilling or unable to carry out. The U.S. constitutional system has checks in place that, in theory, can set limits on presidential power. But those checks have not functioned well during times of crisis, including in the years since 9/11 — especially when Congress is passive or deferential. It’s essential to consider what a President Trump could do to deliver on his promise to rule as a strong leader. The answer is that it could largely depend on how far he is willing to go.