Donald Trump’s radical assertion that Article II of the Constitution gives him “the right to do whatever I want as president,” is an affront to the fundamental purposes of the Constitution and a declaration wholly ignorant of what every student learns in history, government and civics classes.
Trump’s alarming decree represents an unprecedented view of the scope of presidential power. If undeterred, it would eviscerate our constitutional jurisprudence, lay waste to the rule of law and the doctrines of separation of power and checks and balances, and erect the scaffolding for authoritarianism. Such a view represents an existential threat to our Constitutional Democracy.
The Framers of the Constitution invented the Office of the Presidency and circumscribed its authority with a grant of limited powers. James Madison, chief architect of the Constitution, told fellow delegates in the Constitutional Convention that executive power “should be confined and defined.” And so it was. Indeed, the Convention counted as one of its greatest historical achievements the establishment in the United States of the rule of law which, at the time of the founding, had a precise meaning: subordination of the executive to the law.
The president’s powers, carefully enumerated in Article II, in light of the founders’ dread fear of a strong executive, are few in number and lean and meager in comparison to congressional powers. In the formulation, management and conduct of American foreign policy, the Framers made Congress, not the president, the senior partner in the shared arrangement for the nation’s external relations, defense and security.
Trump’s scheme of “absolute” and “unlimited” presidential powers is at war with the work of Madison, Washington and Hamilton, and finds not a scintilla of evidentiary support in the text of the Constitution, the debates in Philadelphia or the various state ratifying conventions. Nor does it find support in the Federalist Papers or any other documents contemporaneous with the framing of the Constitution, or in any U.S. Supreme Court decision since the dawn of the republic. In sum, it finds no footing in our constitutional architecture or in the train of discussion and debates that informed it. Trump’s revolutionary assertions of unlimited power conjure visions of the absolutist pretensions of the Stuart Kings in the mid-17th Century, which both triggered civil war in England and formed the backdrop against which America’s founders shaped the presidency.
Trump’s revolutionary view of presidential power is pregnant with menace. He has demonstrated a self-aggrandizing capacity to bend the powers of his office to advance his own political, pecuniary and personal interests. He has resorted to extortion and quid pro quo to obtain Ukrainian interference in our 2020 election: dirt on Joe Biden if you want the $400 million in military assistance appropriated by Congress to defend yourselves against Russian aggression. His pattern of soliciting foreign intervention in our elections—Russia, Ukraine and China—violates federal law and violates our foundational principle of free and fair elections—of, by and for Americans.
He has, with contempt, dismissed the “phony” Emoluments Clause, one of the Constitution’s principal barriers against bribery and foreign interference in our domestic affairs and elections. That he should be denied the opportunity to use the presidency to line his pockets, he undoubtedly believes, is outrageous.
Trumps’ bald assertions of unlimited power, moreover, fuel his description of governmental agencies as “my” army, “my” attorney general and “my” state department. They may, in part, explain his disdain for any person, organization or institution that criticizes him—the press, the courts and various governmental officials, including his current and former advisors. His absolutist pretensions run deep. He seethes with contempt: the press is the enemy of the people; political rivals are guilty of treason. He condones and stirs violence with his words of hate and division.
In a powerful Op-Ed in the New York Times last week, the decorated Admiral William H. McRaven concluded that “the republic is under attack, not from without but from within.” This is gut check time for American citizens. If Trump’s assertion of unlimited presidential power shocks you, it should. If it does not, then you should reconsider the importance of limited government and the need to advocate for, and defend, the U.S. Constitution.