There are more checks and balances to the presidency than you might think.
FROM POLITICO | JUNE 21, 2016
Not only hasn’t he retracted his pledge to ban Muslims from America’s shores, Donald Trump has doubled down on it over the past week. In the wake of the Orlando shootings, Trump announced that as president he would “suspend immigration from areas of the world where there is a proven history of terrorism against the U.S.” He justified that use of presidential power by saying: “The immigration laws of the United States give the president the power to suspend entry into the country of any class of persons that the president deems detrimental to the interests or security of the United States, as he deems appropriate.”
Uh, not quite. It is true that the 1952 McCarran Act on immigration gave the president the wide latitude to “suspend the entry of all aliens or any class of aliens.” But the law has been amended and altered multiple times in the past 60 years, and it is far from clear that the original statute (meant to target communists) was ever designed to cover millions of potential immigrants based on race or religion. What’s more, we are currently in the midst of a two-year legal battle between the Obama administration and multiple state attorneys general who have challenged the president’s legal authority to delay indefinitely the possible deportation of more than 4 million undocumented immigrants.
Sometime this summer, the Supreme Court will rule on the issue. That will settle a major dispute, but only over the interpretation of one small aspect of immigration law. It will not prevent similar legal challenges, requiring years of effort and argument, to a proposed temporary ban on Muslim immigrants. Nor will it change the basic fact that immigration is primarily a power constitutionally lodged with Congress that Congress can then alter.
Behold the difference between Trump world and the real world. Trump’s many statements declaring all the things he’ll do as president have led to a widespread sense that he could well use executive diktat to magnify the powers of the presidency well beyond its already expansive scope. Some welcome the prospect, but many fear that the United States could well be at some dark turning point akin to the rise of fascism and totalitarianism in Europe in the early 1930s.
While it would be unwise to stage a real-world experiment testing the merits of those fears, there are a few things we do know: The American presidency is an office of vast powers that are also maddeningly constrained for anyone with dictatorial aspirations. We also know that Europe in the late 1920s and early 1930s bears little resemblance to the United States of the 2010s. Before we get too breathless about impending fascism and the end of America as we know it, we need to stop and consider just how hard it might be for a president to bulldoze through the multiple hurdles to unilateral action.
Take the expansive powers of the president as commander in chief. Trump has declared he will reinstitute torture and order the killing of the families of terrorists, “If I say do it, they’re going to do it,” he said of the military. True, the president is the head of the armed forces, and all members of the military are legally bound to obey the orders of their superior officers, culminating with the president. That would seem to be the end of it, especially since the oath all soldiers take includes the following: “I will obey the orders of the president of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.” That last bit, however, opens up a thorny and complicated territory that amounts to a big “yes, but,” one that gives the military a lot more latitude than Trump seems to think.
That’s because while the code makes it unlawful to disobey a direct order, it also makes it unlawful to obey an illegal order, including one to torture or to commit war crimes, even if it’s from the president. Granted, figuring out whether an order is lawful is literally beyond the pay grade of most soldiers, but not the senior officers who are tasked with implementing a presidential directive. There is also a long and deep history of holding officers and enlisted men accountable for illegal orders and for complying with illegal orders, such as the court martial of Lt. William Calley for the Vietnam-era My Lai massacre. He claimed he was just following orders, and was convicted of murder.
Another concern is that the president is the ultimate arbiter of whether to launch a nuclear strike, an authority conferred by Congress and the Constitution and sanctified by military law. And while it is true that a decision to launch could occur in a very narrow window if it were in response to an incoming nuclear attack, that contingency has faded dramatically since the end of the Cold War. It is possible, but highly improbable. More likely would be a determination to use nuclear weapons as part of a retaliatory response, or an invasion. And the Uniform Code of Military Justice could be a major impediment.
As legal scholar and former National Security Council staffer Philip Bobbitt has written, there are also times when it is incumbent on government officers and officials to “break the law” in order to protect the nation. That could cut several ways of course, but it highlights that determination of what orders to enforce does not reside with the sole discretion of whoever occupies the Oval Office.
What of the legitimate argument that a president could simply fire or demand the resignation of any Cabinet member or military officer who refused to carry out a presidential directive? That is certainly what happened during the Nixon administration during the infamous Saturday Night Massacre of October 20, 1973. Special Prosecutor Archibald Cox had subpoenaed the president for documents relating to the Watergate break-in. Rather than comply, Nixon ordered Attorney General Elliot Richardson to fire Cox. Richardson refused and resigned. Then Nixon ordered the deputy attorney general to fire Cox. He too refused and resigned. Nixon then turned to the solicitor general, a young Robert Bork, and ordered him to fire Cox. Believing the order to be a valid exercise of presidential power, Bork complied.
Had the story stopped there, it would be a prime example proving the case the presidency carries enough unfettered power to justify the impending sense of danger that the office might soon be occupied by someone who could use that power to great harm. What happened, however, was that Nixon’s exercise of power pushed Congress to accelerate impeachment proceedings on the grounds that the president had abused that power, and he was forced from office less than a year later.
In theory, a president does have wide latitude to interpret and enforce laws. As we saw after 9/11, a president can also deploy his staff to exploit vague legislative wording and precedent to take actions that might previously have been off the table. The Bush administration’s redefining of laws against torture in order to justify waterboarding and enhanced interrogation as consistent with—rather than violating—the Geneva Convention is a key example. Yet even here, it’s not as if George W. Bush was able to unilaterally and instantaneously order that detainees be tortured. It took months of detailed and meticulous work, partly spearheaded by White House lawyer John Yoo, to make the case. And even then, it didn’t take long for the military establishment and the CIA to push back against the tactics that they started to use and begin to refuse to use those techniques.
This may be cold comfort, especially to those who have envisioned all the ways that an individual such as Trump would quickly direct the powers of the presidency toward some very unsavory authoritarian actions.
But the reality does not match the fear. Presidents find themselves constrained from every side—and far more than autocrats or generals. Any president would need the active complicity of thousands and thousands of skilled and able bodies to even begin to do what many fear Trump will do. As Harry Truman said when he contemplated Dwight Eisenhower succeeding him, according to the scholar Richard Neustadt, “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.” Lyndon Johnson, who understood the powers of the presidency about as well as anyone, also reflected on the limits of that power, confessing after he left office to his young amanuensis Doris Kearns Goodwin his repeated dreams of executive impotency.
American government has, in other words, a large and unwieldy bureaucracy and centuries of checks and balances and traditions that have proven resilient in the face of ineptitude and even illegality. At the same time, this system remains deeply resistant to reform. This same system is often blamed for the glacial pace of progress—but in the case of a Trump presidency we may be thankful for it.