Presidential Power

The past two days have witnessed extraordinary attempts to roll back Presidential power. Arguments made in both the Supreme Court case Department of Homeland Security, et al. v. Regents of the University of California, (also known as the DACA case) and today’s impeachment hearings represent significant breaks with historical understanding of Presidential authority.

Let’s start with the DACA case which the Supreme Court heard oral arguments on yesterday. The Trump administration rescinded the executive order that President Obama had made permitting some 700,000 aliens to avoid deportation despite federal legislation that mandates their removal. Various parties challenged the Trump administration’s decision as “arbitrary and capricious” and, thus, unlawful. Remarkably, several lower courts including the 9th Circuit Court of Appeals concurred with the challenge and put a nationwide block on the administration’s end of DACA. The challenges are truly unprecedented. Presidents have long had discretion on whether to enforce certain actions. Here the President is ending a discretionary executive action NOT to enforce the law. The real question should be whether President Obama’s executive order was constitutional (even Obama is on record saying it was not), not whether the Trump administration has the right to enforce existing law.

Similarly, today, the House of Representatives launched its public impeachment inquiry into President Trump. The basic argument seems to be that President Trump committed an impeachable offense by asking Ukraine to do him a favor and investigate what happened in the 2016 election and corruption involving Hunter Biden. The Democrats allege that the President threatened to not send Ukraine aid if they failed to investigate. That said, the administration did provide the aid even though Ukraine never launched the requested investigation. What makes this so unusual is that it has long been understood that under the Constitution, the President has very broad authority to run foreign policy without second guessing from courts or Congress. Article 2 of the Constitution gives the President very broad authority for dealing with foreign nations and Presidents have asked for favors from foreign leaders throughout our history. There is an open question about whether Trump requested a “quid pro quo” exchange of aid for the investigation, but the reality is that even if he did, (i) the aid was released without the investigation being launched and (ii) the President’s constitutional foreign policy authority has long been understood to allow him to do so.

We fear that opposition to President Trump’s policies is causing judges, commentators and politicians to express views that are simply not consistent with historical understandings of executive power. Should the Supreme Court really be reviewing every executive action that a President makes and decide whether the President’s rationale for a decision was legitimate and not arbitrary and capricious? Under this logic, almost any decision of a President could be reviewed and overturned by the Court. Likewise, in conducting foreign policy, a President has very broad authority and can ask for favors from foreign governments whenever desired. In democracies, policy disputes should be decided through the election process, not in the courts or by the impeachment process. The 2020 elections are less than a year away and all would be wise to focus on the elections rather than pretending that President Trump does not have the same authority as his predecessors simply because of his beliefs.