Sometimes Constitutional Law is Naive

A few thoughts about unitary executive theory in the Age of Trump.

Photo by Anthony Garand on Unsplash

If I have a regret about writing The Toddler in Chief: What Donald Trump Teaches Us about the Modern Presidency, it is that the toddler portion of the book crowded out the other important thing I was trying to say: the guardrails on the modern American presidency were imperiled.

It’s not like I tried to hide that part of the thesis — this is from the second page of the book:

Having a President who behaves like a toddler is a more serious problem today than it would have been, say, fifty years ago. Formal and informal checks on the presidency have eroded badly in recent decades, and Trump assumed the office at the zenith of its power. For a half-century, Trump’s predecessors have expanded the pow­ers of the presidency at the expense of countervailing insti­tutions, including Congress and the Supreme Court. Pres­idents as ideologically diverse as Ronald Reagan, Bill Clinton, George W. Bush, and Barack Obama all took steps to enhance executive power. To be sure, Trump has attempted massive executive-branch power grabs as well. This is problematic, but the underlying trends—all of which predate Trump’s inauguration—make the existence of a Toddler in Chief far more worrisome now than even during the heightened ten­sions of the Cold War.

Consider navigating the ship of state as analogous to driving a car on a twisty mountain road. The risk of driving off the side of a mountain is real. Two things can prevent a catastrophe: the driver’s good sense and guardrails separat­ing the road from the precipice. The guardrails were badly damaged before 2016, but a skilled driver could still navigate the road. In that year, however, the country elected the most immature candidate in American history to drive the car. The result has been a reckless President operating the executive branch like a bumper car, without any sense of peril. The car has not careened completely off the road yet, but that is due more to luck than skill. The possibility for a fatal crash remains ever-present. Even more disturbing, the driver is not getting any better at his job. He is just getting more confident that there is no risk to what he is doing.

Those words were written and published during Trump’s first term. Flash forward to his second term, and the guardrails are now much, much weaker.

It’s not just that Republicans control both houses of Congress and have demonstrated considerable fealty to Trump. It is also that Trump’s desire for unchecked power dovetails nicely with a stream of conservative legal thinking dedicated to the proposition that the president should have untrammeled authority over the entire executive branch.

This is a point that the New York Times’ Matthew Purdy expounds upon in his recent news analysis:

From the opening days of his second term, President Trump took aim at Watergate’s ethical checkpoints as if in a shooting gallery. First, he fired 17 inspectors general, a job established in the Watergate era to ferret out waste, fraud and abuse in government. He also fired the head of the Office of Special Counsel, an independent agency created by legislation in 1978 to protect government whistle-blowers. Then he fired the director of the Office of Government Ethics, created around the same time to guard against financial conflicts of interest by top government officials. And he has used the Justice Department and the F.B.I. as political tools, roles they worked to shed after Watergate.

A strain of conservative legal thinking has been aiming to reassert the president’s powers ever since they were curbed in the post-Watergate era. But while Mr. Trump’s lawyers successfully make the case for expanding presidential authority based on a high-minded Constitutional argument, there is a raw political result. He has removed barriers that might slow his pursuit of a highly personal presidency — punishing opponents and rewarding allies and financial backers while also reaping profits for family businesses that intersect with his powers as president….

Tension between the power of the president and Congress existed long before Watergate. But in the 1980s, Reagan administration officials, including Mr. Scalia and Attorney General Edwin Meese III, invoked an expansive view of presidential power that became known as the “unitary executive theory.” Over time, it has been widely accepted on the right, including, it appears, among the majority of current Supreme Court justices.

The Trump administration has succinctly laid out the basis of the theory in briefs arguing that the president has the power to remove heads of independent agencies. The briefs assert that the Constitution says that “the ‘executive Power’ — all of it — is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’” Without the “authority to remove those who assist him in carrying out his duties,” Mr. Trump cannot be held “fully accountable for discharging his own responsibilities,” the briefs say, quoting judicial opinions.

But even some Republicans who read the Constitution as envisioning a powerful executive say that Mr. Trump, under the cover of the unitary executive theory, is operating with illegal abandon.

Mr. Gerson, the former acting attorney general, said independent agencies created by Congress needed to maintain their impartiality given Mr. Trump’s “insatiable power hunger.”

If folks like Stuart Gerson and John Yoo are now acknowledging that there might be some drawbacks to unitary executive theory, it raises the obvious question of why conservatives have pushed for it and continue to do so.

For some, like Josh Marshall, it is evidence of corrupt intent. That could explain a lot! But the hard-working staff here at Drezner’s World is not entirely convinced. In fact, I would hypothesize that it actually reflects breathtaking naïveté about abuse of power in the United States.

Consider when Associate Justice Brett Kavanaugh, in a concurring opinion in Vasquez Perdomo, said that immigration officers could use race or ethnicity as a relevant factor for determining reasonable suspicion of a person being in the United States legally. Kavanaugh did not think this would be a big deal because “reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a U.S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.”

As it turns out, an awful lot of U.S. citizens experienced more than a brief encounter with immigration agents. The term “Kavanaugh stop” entered the legal lexicon, and not in a way that was flattering to Kavanaugh’s jurisprudence. And this seemed to push Kavanaugh into some self-reflection. Last month, in a footnote on the decision denying Trump the ability to employ the National Guard in some U.S. cities, Kavanaugh backtracked from what he wrote in Vasquez Perdomo without explicitly acknowledging the backtracking. As Slate’s Mark Joseph Stern explained:

Maybe he’s trying to send a message to the Trump administration to cool it down….

Kavanaugh is probably a little unnerved that all these violent, racist arrests and abductions are taking his name. He doesn’t want to be remembered by history as this great villain who greenlit the worst wave of violent racial profiling by the federal government in ages.

Stern is obviously no fan of Kavanaugh, but the point is that Kavanaugh likely did not anticipate that his ruling would enable the current situation — much in the same way that Chief Justice John Roberts continues to be confounded by Donald Trump.

I would posit something similar for advocates of unitary executive theory. There are valid reasons for advocating such a doctrine, particularly if one wants to see vigorous executive action unimpeded by resistance from unelected bureaucrats. But, again, some of these legal theorists fail to comprehend just how much Donald Trump can weaponize this kind of argument.¹

A few months ago I noted that sometimes constitutional law can be dumb. But sometimes constitutional law is worse than that — it is naïve about how such a legal theory can be used and abused by Donald Trump.

1. Or they believe that eventually the democratic process will force out such an abuser of power.