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The Terrible Allure of Executive Power

Goldsmith is a Harvard Law School professor and a senior fellow at the Hoover Institution; he was an Assistant Attorney General in the George W. Bush Administration

'An unchecked presidency is one that tends toward excess, error and abuse'

The arc of a presidency is hard to predict. In December 2000, historian Michael Beschloss proclaimed that the election of George W. Bush “marks the end of what the great historian Arthur Schlesinger Jr. once called the ‘imperial presidency.’” Then came the 9/11 attacks, and Bush’s transformation from a modest executive as Texas governor with no foreign policy experience into a prerogative-­wielding war President. Barack Obama promised retrenchment but expanded presidential war and administrative powers. Bush and Obama were not the first Presidents to defy expectations and become aggressive presidentialists once in office. Jefferson, Lincoln, Eisenhower and Nixon, among others, did the same.

With Hillary Clinton and Donald Trump, by contrast, we expect robust presidentialism. These wolves come as wolves, as Justice Antonin Scalia once said—though as different subspecies.
Trump has promised to tear up inter­national agreements on trade and security, to commit torture and other war crimes, to discriminate on the basis of race and national identity and to suppress the press. But it will be hard for him to carry out these and other pledges to violate settled law without the cooperation of other ­institutions—­beginning with his own ­Executive Branch.

Even if Trump floods the upper echelons of the Justice, Defense and State departments with ­lackeys—­something he cannot do without Senate ­consent—they cannot easily execute law­breaking presidential commands in the face of recalcitrant bureaucrats and internal watchdogs. Congress seems feckless now. But if Trump proposes illegal initiatives opposed by both parties, it can fight back with its control over the purse and appointments. And the independent judiciary, with the support of a vibrant press and civil society, has proved that it can stand up to a lawless President.
Trump could still do enormous damage through initiatives that are ill ­conceived as opposed to lawless, and thus that might not spark latent presidential checks to the same degree. He could use the presidency’s vast prosecutorial discretion for political ends. He can change the arc of American foreign policy through unilateral action. And his temperamental and ill-­informed statements can destroy the confidence on which markets and international cooperation depend.

And yet we should not overlook the dangers of the more likely Clinton presidency. In the face of proliferating global threats, she promises to be a hawkish, unilateral Commander in Chief. The dovish wings of the Democratic and Republican parties may rise up to check these tendencies. But in the past, congressional pushback has been least efficacious in war, and courts have traditionally stayed out of the matter.

Clinton’s domestic regulatory initiatives also raise concerns. In areas ranging from immigration to health care to the environment, Obama has shown how a President acting alone can change domestic law through selective law enforcement, aggressive administrative regulations and imaginative rearrangement of spending authorities. Clinton has pledged to use these tactics even more aggressively.
Whether one approves of Clinton’s domestic regulations, and indeed whether one sees them as lawful, will often depend on whether one approves of their leftward tilt. As the political parties’ head-­snapping reversals in attitudes toward presidential power during the past two presidencies show, outcomes matter more than constitutional principle in politics.

But no matter what outcomes one prefers, constitutional principle may be at stake in a Clinton victory. Such a victory will also bring Supreme Court control by Democratic appointees for the first time in almost half a century. Clinton will also enjoy the support of a generally progressive bureaucracy, and perhaps the Congress.

If the danger with Trump is that the governmental institutions that oppose him won’t be robust enough to check him, the danger with Clinton is the opposite: that too few governmental bureaus will be motivated to oppose her initiatives. This may be happy news for Democrats in the short term. But an unchecked presidency is one that tends toward excess, error and abuse.

Goldsmith is a Harvard Law School professor and a senior fellow at the Hoover Institution; he was an Assistant Attorney General in the George W. Bush Administration.

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