The Mighty Trump

The Mighty Trump

Arguably the greatest contribution made by Donald Trump to the American presidency is to test the boundaries of the executive. Basically, he has adopted the approach of “stop me if you can.” He has attempted to fire and replace presidential nominees who were confirmed by the Senate with fixed terms to “independent” agencies that are technically under the executive branch of government. He successfully fired Gwynne Wilcox of the Labor Relations Board and Cathy Harris of the Merit Systems Protection board. The attempted firings of two FTC commissioners remain in dispute as their cases are still being litigated. At one of my old agencies, the National Credit Union Administration, Trump removed the two democrat members of the board – Todd Harper and Tanya Otsuka – although he had appointed Harper to the board in his first term. They sued and were reinstated but were again removed as another court put their case on hold until the attempted firing of Fed governor Lisa Cook is heard by the Supreme Court. The outcome of the Supreme Court case will have implications going forward on all class of appointees to fixed terms on “independent” boards.

Trump has also sought to rule by edict and take a somewhat expansive view of his designated powers. His first day back in office he issued 26 executive orders soon followed by 226 more. He declared 12 national emergencies, often where obviously none existed just to be able to exercise certain powers – like the imposition of universal tariffs. The republicans with control of both the House and the Senate chose not to counter Trump and essentially let him do what he pleased. Where there was push back it came from the private sector in the form of lawsuit after lawsuit. 

Such an exercise actually is valuable because it allows the courts define the limits of executive power. Trump has pushed those limits. He has sold Venezuelan oil and put the proceeds into an offshore account in Qatar. He and his family have increased their wealth by billions since he came back into office. He has had the government take equity positions in private enterprises. He has intervened in corporate decisions, shaken the foundations of NATO, threatened to seize Greenland and tried to intimidate virtually every country on the planet. He has cut of all funding to the United Nations, withdrawn from the World Trade Organization and completely alienated our “allies’.  He has upended the security of the federal work force essentially firing over 400,000 civil servants.

Then there is the attempt to nationalize federal elections. Do you really want the Department of Homeland Security to create a federal citizenship list for each state and to direct the U.S. Postal Service to mail ballots only to those who appear on that list?

Some of the executive orders have made their way to the Supreme Court. Birthright citizenship is now being argued. The universal tariffs justified under the International Emergency Economic Powers Act (IEEPA) have been heard and the court ruled that Trump’s illegal tariffs were indeed illegal. Trump and his people cited the 1798 Alien Enemies Act as authority for summary deportations off illegals and the warrantless searches of homes. The courts ruled against him. Trump authorized the destruction of suspected drug boats in the Eastern Caribbean despite the legality of the action. And of course he seized the ruler of an independent country and unilaterally is waging a war not endorsed by the congress. BTW, what happened to the War Powers Act?

Multitudes of critics say that he is abusing the office. I disagree. He would be abusing the office if he went beyond what was legally possible. But what is legally possible? I don’t blame him in testing the limits of the office. Powers exist to the executive that until Trump had not been fully explored. The presidency comes with all sorts of powers – emergency powers, unilateral trade authority, administrative control over vast swaths of economic life, and the ability to wage war at will. Even the demolition of the East Wing and the construction of the ballroom were based on Trump’s claim that the Congress has given him authority in existing statutes to construct his East Wing ballroom project and to do it with private funds. A Reagan appointed federal judge disagreed and put the project on hold. The judge said that although Trump occupied the White House he did not own it. He also said that under Trump’s interpretation of his powers, he could raze the White House entirely and put up another Trump Tower in its place.

Other presidents have put their toe in the water by issuing edits too. But Trump has jumped into the pool. The republicans in the Congress do not have the guts to confront him and the democrats are powerless to do anything but carp. It is up to the courts to define the limits of executive power and they are doing just that although Trump does not seem to acknowledge it. Recall he said when asked what limits his power and he said “Yeah, there is one thing. My own morality. My own mind. It’s the only thing that can stop me, and that’s very good.” That, of course, is debatable.

So there are the courts to limit presidential power. But there are two other factors as well: the markets and public opinion. The markets are tanking given his war on Iran and public opinion is falling. In the past, he has heeded the warnings from the market – but less to public opinion. As of yet neither seem to be affecting his push for more power. Lastly as I have often mentioned before, the democrats should be supporting Trump rather than resisting him because when the next democrat occupies the White House, he, too, can follow Trump’s lead in expanding the power of the executive. 

Yet at his core, Trump more often than not seems like a schoolyard bully with a thin skin lashing out at any criticism.