The Paradox of Executive Power in a ‘Conservative’ President . . .
Executive orders are nothing new; the debate on executive power has existed in the United States since before its founding. In fact, excessive power in the executive was a main reason for the separation of America from a repressive monarchical regime. Naturally, the founding fathers were apprehensive to the idea of an excess of power residing with the elite and so they crafted a nation based on documents such as the Declaration of Independence and the Articles of Confederation. So dire was their fear of an empowered executive that the Articles gave virtually no power at all to the central government. To mend this problematic hiccup in the fine print of the newly-formed nation, the Constitution broadly and nonspecifically granted “executive Power” to the President.
In essence, the President can execute any constitutional order so long as it does not pertain to an area or duty expressly given to either of the other two branches. As basic examples, the President has neither the authority over the country’s budget nor over assessing constitutionality.
So Trump’s ability to issue executive orders is legal and few would dispute the fact. The issues lie in the process of their issuance, however, rather than in their quantity or even in their content. Of course, content has certainly been questionable of late, but a more traditional process of issuance would likely have fixed any outlying issues.
The most controversial of Trump’s line of Executive Orders issued in his first month of office was the so-called ‘Immigration Ban.’ Though not a ban on Muslims, as many tabloid-type leftist publications immediately dubbed it, the action is rightfully receiving an abundance of backlash.
What is most concerning about the order is not its content, but rather the process by which it was overseen and implemented. According to outlets such as CNN, the New York Times, and The National Review, there were a plethora of qualified and experienced individuals in high office that had no part in the Executive Order’s wording, intent, or planning. Homeland Security Secretary John Kelly and his team of analysts at the Department of Homeland Security, for example, were discussing the executive order for about an hour when CNN aired President Trump’s signing it. The White House reportedly jumped the traditional process of consulting the National Security Council and relevant departments. In fact, even Secretary of Defense, James Mattis, who is an oasis of knowledge, experience, and reason within the Trump Administration, was not aware of the order’s language until hours before its signing.
Executive Power is given in the Constitution for a reason. Even Thomas Jefferson, the most ardent of advocates for personal liberty in America and also thereby a detractor of any increase in federal power, used his fair share of executive orders during his Presidency. Executive Orders are in nature. Their convenience is unsurpassed and, with the correct advisory, their legitimacy is hardly put into question.
This completely changed with Franklin Delano Roosevelt, however. Coming into the Oval Office with a mass of momentum, FDR signed executive orders at will, implementing government funded programs left and right and legislating from the executive office on everything from gun rights to immigration. In 1942, FDR issued Executive Order 9066, which authorized the controversial creation of Japanese Internment Camps. And so begins the comparison between the mighty FDR and the controversial President Donald Trump.
FDR had an entirely different idea for the Presidency, as do Trump and those most often in his ear.
Considering their superfluous ‘protections of national security,’ increased use of the power of the executive, and frequent challenges from other facets of the government, Trump and FDR are strikingly similar upon closer investigation. One significant aspect that differentiates the two though, is timing. FDR inherited the Great Depression and won office claiming he would do something about it whereas Trump inherited an economic upswing. Unemployment rates soared to over thrice the level they were even during the Great Recession of 2008, the economy was stumped, and the conservative President Hoover only made matters worse with his selective government intervention. Roosevelt assumed office, promising a desperate America quick recovery. Naturally, regardless of one’s thoughts on FDR’s arguably irresponsible explosion of federal spending (that has since only become more prominent and less responsible), he leaned toward the swiftness and solidity of the executive order. In fact, he rolled out an unprecedented and still unmatched 3,500+ executive orders in his twelve years as president.
Trump, however, faces no such crisis. Therefore no such unilateral, hardly advised displays of executive power should be necessary, let alone prioritized. FDR toed a dangerous line during his presidency and we should be thankful that the following commanders-in-chief replicated only hints of his behavior in office, for the expansion of executive power can and has unnaturally resulted in many degrees of violations of the personal liberties conservatism so righteously adores. For this reason, a limitation of federal power is at the core of the conservative agenda. Trump and his core team, however, seem to be relishing in his acts.
By “ignoring or bypassing collective decision-making agencies,” according to historian James MacGregor Burns, FDR consistently made most of the high-level decisions during his lengthy presidential stint. Though many of his decisions were in the interest of the American public, they were still shameful abuses of executive power. Chief among FDR’s abuses was his threat to ‘pack the court’ in favor of his New Deal Program.
If Israel is ailing in the Middle East and their destruction is dependent on U.S. military support, an executive action is in order. If there is some pressing domestic epidemic, the president should be able to roll out an executive order without much friction. But when the opinion of one man is only able to filter through his core supporters and strategists, the likes of the chaos resulting from the “Immigration Ban” (at least) are imminent.
So what happens when Trump faces an immediate crisis? To draw on a piece of history to illustrate a point, let us consider the Cuban Missile Crisis. John F. Kennedy might have started a nuclear weapon-filled WWIII if he did not consult his Cabinet and heard and considered the dissenting opinions of the aggressive Secretary of Defense Robert McNamara and the more diplomatic Secretary of State, Dean Rusk. Without JFK’s openness and utilization and trust of information from the intelligence community he would not have known that he even could have had time to consult his Cabinet for as long as he did. Imagining Trump in a similar situation with his recent disregard for consultation is disturbing to say the least.
Many curious pundits point to Steve Bannon as the ‘wizard behind the curtain’ here. The assertion is entirely believable given Bannon’s plethora of proclaimed stances and ideas about the government in the past. To add fuel to the fire, Kellyanne Conway who has by all means been a loose cannon of late, recently suggested that she was surprised journalists who degrade Trump were not already fired. Her comments were merely a soundbite in a large-scale crusade against the media by Trump’s closest cronies.
If neither Bannon nor Trump are at the head of the ‘find how much we can bend a Republican Congress’ game, then it must be a gas that someone is sending through the air ducts in the White House.
In short, the integrity of those closest to him seems to be lacking and I hope and expect — for whatever expectations are worth in regard to this administration — that a member of his Cabinet or members of Congress will threaten to use the leverage against the executive that is constitutionally bestowed upon them should these unilateral trends continue.
After all, conservatism is not about blocking certain peoples from entrance into a country, and those on both sides of the spectrum must strive not to confuse this point. It is, rather, a much more rational and powerful liberty that conservatism promotes. It promotes the ability to analyze the situation and deal with it rationally, without fear of being labeled insensitive. What is morally right is
In the case the most prominent debate of late, there are two things that are right: the continued opening of our border to all who are worthy as determined by any process deemed acceptable by all branches of government and the protection of the people who have already undergone a process some time in their familial lineage.
Republicans must compensate for the Left’s often disturbing inability to acknowledge the real dangers that potentially lie within prospective citizens, preferring instead, rather, to shame conservative politicians for creating a policy that relates to race, but we must also realize that the government is hard at work rooting out terrorism of all sorts and all nationalities via the FBI and its sister Intelligence Agencies. Do not think for a second that those who have recently immigrated are not on the top of the FBI’s priority list. The FBI has more power and even more legitimacy (though it has been known to abuse it from time to time) in this regard than any immigration ban or deportation decree. Furthermore, the Intelligence Community acts in relative silence and respect for accepted legal processes. In practice, operating behind closed doors accomplishes the government’s attempted goal of thwarting terrorism. In theory, Trump’s initiatives will do the same. In practice, I suspect that, at a time when ISIS loses more territory every day and increasingly struggles to fund its training programs and purchase weaponry, Islamic terrorism will receive a boost that might render much of the good work of the last decade useless.
These are the valuable opinions that exist within the government, within the executive branch of the government, and even within the pool of officials nominated specifically by the President himself. They should be taken advantage of on a daily basis as they have been for centuries.
There is no doubt that a portion of Trump’s supporters feel equally as confident as they did November 8th, but a growing fraction of conservatives have ended their speculation about whether we would see a transition in attitude with Trump’s assumption of the Presidency. Instead, they have exchanged it for concern. As Jonah Goldberg notes in his article for the National Review, it seems “the Trump we saw during the campaign is the Trump we got.” Whether his misguided ambition will fade as his and his team’s experience increases, we can only suppose.
This piece has been adapted from an article of the same name in the Spring 2017 Edition of THE ARCH CONSERVATIVE Magazine.
—Nick Geeslin is Editor-in-Chief at The Arch Conservative.