(Note… in this two-part series, I will be referring to Donald Trump by his name, instead of the hilarious nicknames. It’s not out of any semblance of respect, but out of expediency. Outside if these two posts, I won’t be dignifying him with his name. Also… yes, Wikipedia is used here. Bite me. This is not a scholarly paper or a school essay. If you don’t trust Wikipedia, just check the sources they provide at the bottom of the articles, or do some Googling of your own. I’m using Wikipedia sometimes and that’s the end of it.)
We live in some scary times. We have a president many people never thought could actually make it. One of the criticisms President Barack Obama got when he was running in 2008 was that he was inexperienced, and therefore unqualified. This was, of course, untrue. Sure, he was in Congress only a short amount of time before he became our President, but he was definitely far from inexperienced. But Donald Trump? By any comparison, Donald Trump is quite literally inexperienced. He has literally zero experience with politics on any level other than a business level.
And Trump is now doing a wholly hell of a lot things that could suggest he’s not planning to leave the White House any time soon… if ever.
But the question is… is this possible? The answer should be an easy one: of course not! We have the Constitution! Checks and Balances! The Executive Branch isn’t capable of extending such authority!
Well… one would certainly hope. Unfortunately, there are a few small loopholes that can be exploited, and that’s what I want to discuss.
But first, let’s talk about the Constitution, our government, and exactly what powers the Executive Branch, and the President himself, actually have. Keep in mind that this first post goes over basic Constitutional principles, so this is stuff most of you will already know.
To start off, we need to discuss something called a “constitutional dictatorship“. According to Wikipedia…
A constitutional dictatorship is a form of government in which dictatorial powers are exercised during an emergency. The dictator is not absolute and the dictator’s authority remains limited by the constitution.
The Roman Republic made provision for a dictator who could govern unchecked for a stipulated period of time. Unlike other magistrates, a dictator was not subject to review of his actions at the conclusion of his term.
The United States Constitution has a similar dictator clause stating that the President “may adjourn [congress] to such Time as he shall think proper”. However, this can only be done when the two houses are on disagreement over when to adjourn. Abraham Lincoln, President of the United States during the American Civil War, exercised extraordinary powers to preserve the Union. Lincoln’s dictatorial actions included directly ordering the arrest and detention of dissenters and the suspension of the right to writs of Habeas Corpus. Yet Lincoln remained subject to Congressional oversight, judicial review and periodic elections.
So, already, we can see that a constitutional dictatorship is possible in the United States, under one very specific circumstance, and even when exercised, was subject to Checks and Balances.
With that established…
From Section 2: The president is the Commander in Chief of the US Army and Navy. She/He can grant reprieves and pardons for anyone who broke US law, unless they were impeached. With the consent of two-thirds of the Senate, the president can write and sign treaties with other nations, appoint Ambassadors, Supreme Court Judges, and other public ministers, consuls, and other other head of a government office not already discussed in the Constitution.
I should note here that the Senate can, indeed, vest this power entirely with the president, meaning she or he would not have to seek their approval for her or his appointments, though I don’t think this has actually happened yet in US history…
The president also has the power to fill vacancies that can happen during a Recess of the Senate.
Section 3 lays out the State of the Union address. It also lays out something else that is relevant…
… he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper
This is the very specific circumstance mentioned above.
Section 4 simply discusses the fact that all voted-for US officials can be impeached.
Over the years, as we know, the powers of the Office of the Presidency have been significantly expanded, and this Wikipedia article goes into detail. For our purposes, however, we need to focus on the Emergency Powers section…
The Constitution does not expressly grant the president additional powers in times of national emergency. However, many scholars think that the Framers implied these powers because the structural design of the Executive Branch enables it to act faster than the Legislative Branch. Because the Constitution remains silent on the issue, the courts cannot grant the Executive Branch these powers when it tries to wield them. The courts will only recognize a right of the Executive Branch to use emergency powers if Congress has granted such powers to the president.
Despite this, Abraham Lincoln did exercise emergency powers without approval by suspending habeas corpus (and continued on after the Supreme Court told him to stop), as did Franklin Delano Roosevelt when he ordered the construction of the Japanese Internment Camps.
Harry Truman attempted it during the Korean War, but was successfully blocked by the Supreme Court.
To clarify how this is handled, the National Emergencies Act was enacted on September 14, 1976…
… to stop open-ended states of national emergency and formalize the power of Congress to provide certain checks and balances on the emergency powers of the President. The Act of Congress imposes certain “procedural formalities” on the President when invoking such powers. The perceived need for the law arose from the scope and number of laws granting special powers to the executive in times of national emergency.
Here’s a PDF of the full text of the Act. It had three specific provisions:
A prior Senate investigation had found 470 provisions of federal law that a President might invoke via a declaration of emergency. The Act repealed several of these provisions and stated that prior emergency declarations would no longer give force to those provisions that remained. Congress did not attempt to revoke any outstanding emergency declarations per se, as these remained the President’s prerogative under Article II of the Constitution.
Procedure for new emergencies
The Act authorized the President to activate emergency provisions of law via an emergency declaration on the conditions that the President specifies the provisions so activated and notifies Congress. An activation would expire if the President expressly terminated the emergency, or did not renew the emergency annually, or if each house of Congress passed a resolution terminating the emergency. After presidents objected to this “Congressional termination” provision on separation of powers grounds, it was replaced in 1985 with termination by an enacted joint resolution. The Act also requires the President and executive agencies to maintain records of all orders and regulations that proceed from use of emergency authority, and to regularly report the cost incurred to Congress.
Certain emergency authorities were exempted from the act at the time of its passage:
- 10 USC 2304(a) (1) (allowing exemption of national defense contracts from competitive bidding)
- 10 USC 3313, 6386(c) and 8313 (regulating the promotion, retirement and separation of military officers)
- 12 USC 95(a) (regulating transactions in foreign gold and silver)
- 40 USC 278(b) (regulating federal property purchases and contracts)
- 41 USC 15 and 203 (limiting the assignment of claims against the federal government)
- 50 USC 1431-1435 (enabling the President to make national defense contracts outside of otherwise applicable rules)
The list of exceptions has from time to time been revised. For example, Public Law 95-223 (1977) repealed the emergency clause of 12 USC 95(a) and arranged for its authority to expire according to the normal provisions of the NEA.
With both of these things in mind, we now need to answer the question of whether or not it’s possible for the President of the United States to declare herself or himself dictator. Can the President wrestle complete control from the government, gathering it all for herself or himself?
Again, it would almost seem as if I’ve just established the answer… no.
However, again, things are just not that simple…
Back on January 12, 2006, Sidney Blumenthal wrote a column for Salon.com entitled “Meek, mild, and menacing“. It was a highlight of Justice Samuel Alito, and why Bush II appointed him to be a Supreme Court Justice…
“If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?”
“No treaty,” replied John Yoo, the former Justice Department official who wrote the crucial memos justifying President Bush’s policies on torture, “war on terror” detainees and domestic surveillance without warrants. Yoo made these assertions at a public debate in December in Chicago, where he also espoused the radical notion of the “unitary executive” — the idea that the president as commander in chief is the sole judge of the law, unbound by hindrances such as the Geneva Conventions, and possesses inherent authority to subordinate independent government agencies to his fiat. This concept is the cornerstone of the Bush legal doctrine.
Yoo’s interlocutor, Douglass Cassel, professor at Notre Dame Law School, pointed out that the theory of the “unitary executive” posits the president above the other branches of government: “Also no law by Congress. That is what you wrote in the August 2002 memo” (one of Yoo’s memos justifying torture). “I think it depends on why the president thinks he needs to do that,” said Yoo.
Unquestionably, Judge Samuel Alito’s self-professed “strong” belief in executive power was one of his greatest if not paramount credentials for Bush’s nomination of him to the Supreme Court. The “unitary executive” is nothing less than “gospel,” declared Alito in 2000, a theory that “best captures the meaning of the Constitution’s text and structure.”
That part is important, because the Unitary Executive Theory is still in play today:
The unitary executive theory is a theory of American constitutional law holding that the President possesses the power to control the entire executive branch. The doctrine is rooted in Article Two of the United States Constitution, which vests “the executive power” of the United States in the President.
And I’ll just quote the entire Theory section from the Wiki article:
The Vesting Clause of Article II provides, “The executive Power [of the United States] shall be vested in a President of the United States of America.” Proponents of the unitary executive theory argue that this language, along with the Take Care Clause (“The President shall take care that the laws be faithfully executed…”), creates a “hierarchical, unified executive department under the direct control of the President.”
The general principle that the President controls the entire executive branch was originally rather innocuous, but extreme forms of the theory have developed. John Dean explains: “In its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters.”
According to law professors Lawrence Lessig and Cass Sunstein, “No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version.” In either its strong or weak form, the theory would limit the power of Congress to divest the President of control of the executive branch. The “strongly unitary” theory posits stricter limits on Congress than the “weakly unitary” theory.
Some scholars oppose even the “weakly unitary” theory and favor creating a plural executive, as in the many state governments that separately elect an attorney general.However, those scholars acknowledge that a constitutional amendment would be required to eliminate the federal unitary executive.
Proponents of a strongly unitary theory argue that the president possesses all of the executive power and can therefore control subordinate officers and agencies of the executive branch. This implies that the power of Congress to remove executive agencies or officers from Presidential control is limited. Thus, under the strongly unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power not controlled by the president.
The judicial branch implications are that a part of the executive branch cannot sue another part because “the executive cannot sue himself.” If the federal courts were to adjudicate disputes between executive agencies, it would violate the doctrine of separation of powers.
So let’s break down where we are right now…
While the Constitution does not directly grant the president emergency powers, many constitutional scholars believe that the authors did not feel the need to include this, as they felt it would be obvious. And some presidents have indeed attempted to use emergency powers. As a result, the US Congress passed the National Emergencies Act, which was meant to give more powers to the Judiciary and the Congress to keep the Executive branch in check when using emergency powers.
However, the Constitution also grants the president complete control over the executive branch, and some people (like the aforementioned John Yoo) believe this means that the president can, indeed, act as a dictator during times of crisis (or, perhaps, even at all times). However, this is only theory, and not Constitutionally granted.
Except that different levels of the theory have been enacted at different times, and if we look at what Donald Trump has already done so far, it seems that he and the people he’s surrounded himself with all subscribe to one of the more extreme versions of the Unitary Executive Theory, and plan to wield it as strong and as far as they can…
So now I think we can answer the question of whether or not Trump could actually take complete control of our government and just… never leave…
And we’ll do that in the next post…