Although he has not yet been able to achieve any of his signature campaign promises five months into his presidency, Donald Trump nonetheless finds himself singularly empowered by his office — at least in theory. We know relatively little about Trump’s beliefs regarding executive power; he’s a man of few words when it comes to constitutional theory. But it would be surprising if Trump’s White House did not seek to take advantage of its supposed monopoly over what the Supreme Court recognized in 1936 as the president’s “very delicate, plenary and exclusive power” when it comes to foreign affairs and international relations. The question is if — and how much — Trump’s seeming unwillingness to play by the normal rules will change the office of the presidency.
Traditionally, courts have often refused to rule on the most pressing national security issues because these questions are better resolved by the political branches. Courts have also reasoned that the president is uniquely situated to respond to volatile and sensitive international situations and to make decisions based on secret intelligence and other information to which the public is not privy. In 2010, the Supreme Court concluded that courts’ own “lack of competence” to understand national security threats made it “dangerous” to require “details,” “specific facts,” and “specific evidence” from the executive branch. When courts renounce their own abilities to understand the specifics of executive branch action in the areas of foreign policy and national security and refuse to substitute their judgment for the president’s, they often rely on the tacit assumption that the person in office is both minimally capable and committed to common values.
But with Trump, that ground is shifting. Take, for example, his Muslim ban. In a February brief filed with the Ninth Circuit on the constitutionality of the first ban, the government took the extreme position that the constitutional principle of separation of powers forbade the Court from reviewing the executive order containing the ban at all, a premise that the Ninth Circuit rejected as “contrary to the fundamental structure of our constitutional democracy.” Last week, when the Fourth Circuit again struck down the (now-revised) ban, it noted that Trump had originally issued the order “without consulting the relevant national security agencies… and that those agencies only offered a national security rationale after [the order] was enjoined.”
Courts rely on the tacit assumption that the person in office is both minimally capable and committed to common values.
It’s difficult to convince judges that the executive branch is making rational decisions when the current president invokes “national security” to justify overtly discriminatory campaign statements that he made when he had never held public office and was receiving only occasional intelligence briefings. As Harvard Law professor Jack Goldsmith put it on Lawfare Blog in February, Trump’s public statements make it “very, very hard for courts in the short term to read immigration and constitutional law, as they normally would, with significant deference to the president’s broad delegated powers from Congress and to the president’s broad discretion in foreign relations.”
This shift in power raises an interesting question: Is there a real risk that Trump could endanger future presidents’ ability to assert broad theories of executive power in administrations to come? Perhaps if courts did nothing at all when faced with constitutional challenges to presidential power, they might ameliorate Trump’s disdain for “so-called judges,” but judicial inaction and executive abuse are a toxic combination. Questions about the nature of presidential authority will continue to crop up in decisions about armed conflict, detention and prosecution of enemy belligerents, and surveillance. Although Alexander Hamilton wrote in Federalist 74 in 1788 that the commander-in-chief clause was so obvious that “little need be said to explain or enforce it,” today nothing could be less true. Decades of war may erode Americans’ tolerance when the commander in chief goes on the march yet again in the “direction of the common strength.”
While the misbehavior of prior administrations does not excuse a current one, it poses a real conundrum: The exercise of power by presidents sets a form of precedent. Congressional silence and inaction, widespread secrecy, and blasé handwaving at abuse of power create expectations for the office itself. Reading the history of how presidents exercise their power is a critical way to understand whether that exercise is appropriate. As Supreme Court Justice Robert H. Jackson wrote in the seminal Steel Seizure case in 1952, a “systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution… may be treated as a gloss on ‘executive Power’ vested in the President.”
In other words, the more the president does, the more the next president gets away with. In an effort to change this pattern, in 1973 Congress enacted — over President Nixon’s veto — the War Powers Resolution, which requires the president to consult with Congress before he introduces troops into hostile situations and limits armed conflicts to two or three months unless specifically authorized by Congress. Since then, most presidents have maintained that the War Powers Resolution unconstitutionally infringes on their authority under Article II of the Constitution. Only a handful of combat operations since 1973 were congressionally authorized — the Gulf War, Lebanon mission, Somalia mission, and the post-9/11 wars in Afghanistan and Iraq. The United States’ participation in NATO’s 1999 intervention in Kosovo, which lasted 79 days, was the first unauthorized air campaign in the post-War Powers Resolution era to exceed the statutory time limit, but it was not the last. When the 2011 Libya intervention lasted longer than 60 days, the Obama White House took the mind-bending position that U.S. forces leading the bombing campaign were not “engaged in the kind of hostilities” covered by the War Powers Resolution at all. Presidents have repeatedly taken the position that authorizations of the use of military force are nice to have, but not necessary as a matter of law.
As a result, Congress hardly ever makes overt statements about whether it has authorized continued engagements abroad, even as it frequently appropriates funds to support those actions (Trump’s defense budget sets aside more than $64 billion for “contingency operations” alone). Since 2001, the U.S. has waged many of its wars under the same ostensible legal authority: the authorization for use of military force enacted days after 9/11, a joint resolution which approved the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
The 2001 joint resolution authorized the war in Afghanistan, but in a 2013 speech, President Obama argued that it reached beyond al-Qaeda and the Taliban to justify attacks on their “associated forces” — ISIS. The Obama administration relied on the 2001 authorization in support of operations against the Islamic State in Libya, Iraq, and Syria. And when the Obama White House sought a new authorization that would authorize military force against ISIS — while specifically exempting “long-term, large-scale ground combat operations” — Congress did not act, with some members arguing that the authority was too broad, others that it was too narrow. As a result, while the administration justified other engagements by relying on the reservoir of presidential authority in Article II of the Constitution, presidents also will continue to resort to the 2001 authorization in an effort to show that 2017’s wars continue to enjoy the support of Congress and, presumably, of the people. (Last week, Sens. Jeff Flake and Tim Kaine introduced a new joint resolution that would replace the 2001 authorization and sanction force against ISIS, al-Qaeda, and the Taliban.)
Presidents have repeatedly taken the position that authorizations of military force are nice to have, but not necessary
In 2013, Trump was ignored by the Obama administration when he tweeted that Obama needed congressional approval to engage in hostilities in Syria. He then went on to campaign on a platform that many called “isolationist,” one that simultaneously embraced unfettered military action and a scaling back of the United States’ role in overseas conflicts. Today, when the Republicans control both houses of Congress, Trump seems unbothered by the apparent absence of overt statutory authority for the many wars he continues to engage in. And his “bare knuckle” approach to military intervention, and its concomitant civilian casualties, reflects the 2002 statement made by Cofer Black, former head of the CIA’s Counterterrorist Center, about that agency’s torture program: “After 9/11 the gloves come off.”
When Trump promised to keep the Guantánamo Bay detention facility open and “load it up with some bad dudes,” when he said that he believed waterboarding was effective and permissible, when he suggested that airstrikes should “take out” militants’ families, he was articulating a vision of the use of American force in the world that is made more real by the accrual of power in the presidency over the last several administrations. And when Trump makes these decisions in secret, or without public explanation, or cuts off press access to the White House, it represents an attack on what Supreme Court Justice Potter Stewart in the Pentagon Papers case called “the only effective restraint upon executive policy and power in the areas of national defense and international affairs” — free and open access to information “which alone can here protect the values of democratic government.”
That Trump appears not to have any coherent foreign policy or nuanced view about the need for a renewed authorization of military force does not mean he can’t or won’t avail himself of the expansive authority claimed by his predecessors. The Obama administration, in one of its last acts before Trump took office, loosened the rules governing the sharing of raw intelligence that the National Security Agency acquires abroad. U.S. intelligence agencies rely on the Reagan-era executive order 12333 in support of various warrantless programs to obtain, among other things, communications data of non-United States persons overseas. Now, all 16 agencies in the intelligence community — including the Federal Bureau of Investigation and Drug Enforcement Agency — can more easily access raw signals intelligence. While it is clear that the communications of many Americans are also swept up under this order, the government has resisted efforts to compel transparency around even just the rules that govern these activities (disclosure: I am a member of the legal team representing the ACLU in this matter). The public has virtually no clue how Trump’s White House will interpret the president’s authority to conduct surveillance, wage war, or detain terrorism suspects.
Trump inherited an office that is opaque, enamored of its own abilities, and hostile to public oversight. He also inherited wars in Iraq, Syria, and Afghanistan; an open detention facility and ongoing military commission proceedings at the Guantánamo Bay naval base; and a surveillance state virtually unburdened by tedious niceties such as public debate or oversight. Trump’s far more visible political fights are less disturbing than the ones we don’t see. Firing employees who serve at the pleasure of the president — say, for example, 46 U.S. attorneys, or FBI Director James Comey — requires no novel stretching of his authority, no clever lawyering in secret. That Comey himself made his reputation partially because he was willing to resign in 2008 as Deputy Attorney General rather than reauthorize George W. Bush’s warrantless wiretapping program, STELLAR WIND, illustrates precisely why Trump didn’t get along with him: he refused to pledge his loyalty.
Trump’s dismissal of Comey and others is not a constitutional crisis or sign that structures and institutions are failing. But official secrecy — the kind that characterized warrantless wiretapping or CIA torture — often makes those signs hard to see. The torrent of leaks from the government might damage the president’s ability to keep major programs secret and expose some egregious abuses. What Trump has done and said in public alone has prompted courts to step in to guard constitutional values in the Muslim ban litigation, even when Trump insists that they should not. But that this administration seems incapable of keeping secrets is cold comfort: the accretion of power in the executive branch should trouble even those who trusted previous presidents absolutely.