There are lots of ways for us to cut the executive down to size, and most of them entail restoring aspects of our original system of checks and balances.
As is his wont, Jonathan Chait has responded to one of my recent items in his newsletter. I had listed a number of ways that Democrats could work with Republicans to prevent the next presidential term from taking “dictatorial” steps, if they are sincerely worried that Trump may win the next election and act in dictatorial fashion:
They can join with Republicans in Congress to pass legislation restricting the unilateral powers of the executive branch to make domestic policy by presidential fiat and agency rule and statement. They can make even more explicit that presidents cannot spend money building things, issue new federal debt, or release debts to the government without going through Congress. They can restrict federal involvement in elections, protecting the decentralization of federal elections outside of Washington. They can pass the proposed “Keep Nine” constitutional amendment to ensure that a president with dictatorial ambitions can’t pack the Supreme Court with pliable cronies. They can repeal elastic and open-ended federal criminal statutes and place more restrictions on the FBI and federal prosecutors in pursuing the president’s political enemies.
Chait argues that my list is both over- and under-inclusive. His complaint that I’m including things he doesn’t want to do smacks of bad faith: “Almost none of them relate in any way to the methods of abusing power that Trump employed in his first term.” I guarantee that if Trump returns to the White House, he will do quite a number of things with unilateral executive-order and administrative-regulation powers, and efforts to evade congressional restrictions on his spending, that Chait will call tyrannical and abusive, in some cases correctly. He seems to have forgotten, for example, the flap over Trump’s trying to unilaterally build the border wall after Congress wouldn’t finance it, or Trump’s summoning a mob to the Capitol, which was thwarted in part by the decentralized nature of our state-based election systems. (I do, by the way, give Senate Democrats credit for finally putting their votes where their mouths were in backing bipartisan Electoral Count Act reform).
In fact, I’d go further: I think it likely that Trump will hire the sorts of people who will go out of their way to treat Joe Biden’s abuses of presidential power as a how-to playbook, and indeed, that they will make a point of doing so to own libs such as Chait. Which is exactly why we should fortify those aspects of the system that Biden has most abused, or that he has threatened to abuse, such as openly pondering claiming “14th Amendment” authority to have the United States borrow money without the permission of Congress.
As to the criminal laws, Chait writes:
McLaughlin does purport to address Trump’s open desire to direct the Justice Department to harass his political enemies by “repeal[ing] elastic and open-ended federal criminal statutes and place more restrictions on the FBI and federal prosecutors in pursuing the president’s political enemies.” But what would be repealed? What would replace it? . . . If he comes up with a way to somehow ban all prosecutorial abuse without enabling crime, he should share it.
I’m happy to elaborate at greater length and have written repeatedly on this theme in the past. The Logan Act should be repealed. So should much of the Hatch Act and the Pendleton Act, and perhaps at least some of the criminal penalties in the Foreign Agents Registration Act. We should massively simplify and deregulate campaign-finance laws. Section 1001 should be pared back, and so should the conspiracy-to-defraud-the-United States statute. There’s also a solid case for putting closer guardrails on RICO and conspiracy law generally. Even outside the space of political prosecutions, we should also repeal other federal laws that are almost never used or that are widely held in contempt, from federal marijuana laws to the ridiculous Onion Futures Act. And we should have stronger bars against being prosecuted by both federal and state authorities for the same conduct.
Chait also argues that my list doesn’t include things he’d like to see. Now, I never said that my list was comprehensive, so I am open to suggestions. Let’s consider the four additional examples from Chait.
First, “prevent the president from enacting policy to punish owners of independent media (as he did to the owners of CNN and the Washington Post).” I agree in principle that it’s bad to use the federal regulatory state, or even to have laws passed by Congress, for the purpose of punishing media critics. We already have a First Amendment to prevent retaliation, but I agree that there are a lot of ways for a creative president to make life miserable for his critics without getting caught by the courts on that basis. Democrats have been guilty of this, too. Some of the legal-but-unsavory steps they’ve taken have ranged from Barack Obama’s trying to kick Fox News out of the press room (he backed down when the less-polarized pre-Trump White House press corps joined ranks around Fox) to Joe Biden’s regularly freezing out anybody but friendly outlets from his pre-scripted lists of questioners. As for the sort of backdoor retaliation against a media critic’s non-media businesses, it is hard to look at the dramatic multi-agency uptick in federal regulatory scrutiny of Elon Musk since he bought Twitter and not recognize a pattern of hostility that derives from Musk’s being a perceived political enemy in how he runs what is now X. All of that said, other than paring back the regulatory state and its discretionary toolbox (see my original list), while I am open to suggestion, I’m not entirely clear on how we could bar that kind of mischief without creating more perverse incentives for preexisting bad actors to buy newspapers just so that they could play the victim.
Second, don’t let presidents “extort governors or foreign leaders into advancing his political aims.” I agree that we can’t eliminate these problems entirely except by electing leaders of good character (and I remind readers that we conservative moralists were right about the importance of character all along, and our liberal opposite numbers were wrong in catastrophic ways), but we can do more to limit them. Extorting governors has a rich history, not all of it even bad, but as we saw when Obama tried to strong-arm governors with the leverage of stimulus money and Medicaid expansion, the largest method of leverage is collecting taxpayer money at the federal level that is then routed back to the states through various federal programs. I personally have argued for years that we should amend the Constitution to abolish all such programs and limit federal funds to the states to a few narrow categories such as disaster aid. We can and should give presidents less in the way of discretion over the disbursement of funds, which again, goes back to my original list. We also shouldn’t let them do things such as destroying border barriers that states put in place to protect them from human traffickers and drug cartels when the federal government withdraws law enforcement at the border (ask Texas about this right now).
As for foreign leaders, there is plenty of conservative support for, say, improving transparency with regard to Ukraine aid, or restricting federal law enforcement from using bogus information routed through foreign sources to launch counterintelligence investigations of domestic political enemies.
Third, don’t let presidents “use the military to suppress peaceful protests.” I’m guessing Chait and I have different definitions of what “peaceful” means in this context, but unquestionably, calling out the troops even against rioters, while legitimate, should be a last resort.
Fourth, “the most obvious step Biden can take is one McLaughlin doesn’t mention: restore the post-Watergate norm of insulating the attorney general from presidential interference in the hopes that it would make it more glaring if and when Trump violated the norm.” In fact, as we saw during the Trump administration, it is actively dangerous to have the prosecution power lodged in someone unaccountable to the public. That said, I’ve previously suggested some reforms. We could separate political cases into a distinct department. We could require special prosecutors to make a full report to Congress if they’re fired, which imposes political accountability. As noted above, we can reform the federal criminal code to reduce the discretion of prosecutors. And we can also restore impeachment as a real remedy by doing something that has yet to happen in the history of the republic: remove a Cabinet official from office.
There are lots of ways for us to improve our system to cut the imperial executive down to size, and most of them entail restoring aspects of our original system of checks and balances, federalism, and a modest executive branch within a modest federal government. But it’s much harder to prevent presidential abuses if you prefer a system that lends itself to those abuses.