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3 July 2020updated 27 Jul 2021 1:25pm

How the Trump administration is unbalancing the balance of powers

From a paralysed Congress to a growing number of conservative judges, legal experts are concerned about the US presidency’s expanding scope.

By Emily Tamkin

At the risk of sounding like a Schoolhouse Rock! video, power in the United States is meant to be balanced between the executive, legislative, and judicial branches, all three of which are meant to check each other from excess. In reality, however, executive power has ballooned.

That executive power has increased without successfully being checked is not a Trump-specific phenomenon. “I do believe that, since the New Deal, but at an accelerated pace since the Reagan administration, presidents have been gathering more power unto themselves”, Peter Shane, a professor at the Ohio State University Moritz College of Law, who regularly teaches on constitutional law and law and the presidency, told the New Statesman.

“Even before Trump, presidents had insisted they had all but unlimited authority, for example, to deploy US military force at will and without prior congressional authorisation, at least short of a sustained war effort against another nation-state.”

But Trump is unique in many ways, including in his relationship to executive power. “In a number of respects, the Trump administration has been more aggressive in defending executive power than his predecessors. Arguably the most troubling has been the assertiveness with which it has frequently stonewalled Congress on oversight,” Shane adds. Last year, Politico reported that “the administration has at least 30 times refused or delayed turning over documents to 12 House committees, according to House Democrats”.

According to Bernadette Meyler, a law professor at Stanford, “Trump has shown that one of the biggest powers of the president” – separate even from the power of the executive branch – “is the power to destroy, rather than create.” Meyler points to Trump’s decision to leave a host of government positions vacant, and the fact that “one of the things that Trump has been hammering upon since getting into office [is that the] Deep State is against him”. Taken together, this would suggest that Trump isn’t as interested in the strength and might of the full executive branch as he is that of his particular presidency.

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It could be argued that that the other branches are now making an effort to push back against Trump’s expanding executive (or presidential) power. The House of Representatives voted to limit the president’s military action against Iran, for example, and the Supreme Court ruled against the Trump administration’s attempt to shut down the Obama-era immigration programme Deferred Action for Childhood Arrivals. Most notably John Roberts, the conservative Chief Justice appointed by George W Bush, recently sided with four liberal justices to strike down a Lousiana law that effectively restricted abortion. There are also some who speculate that the Supreme Court is “asserting” its independence from Trump.

But experts say that’s not quite what’s happening.

Donald Kettl, professor at the Lyndon B Johnson School of Public Affairs at the University of Texas at Austin, observes that “if anything, the power of the Congress has weakened during Trump’s administration. The Democrats took over control of the House following the 2016 mid-term election, but the Republican control of the Senate has frustrated the ability of either party to push forward an agenda.

“The inability of Congress to reach legislative consensus on virtually anything, and the Trump administration’s inability to forge a working coalition on the Hill, has weakened the power of the legislative branch – almost to the breaking point.”

Saikrishna Prakash, professor at the University of Virginia’s school of law, agrees, noting that Congress is at a structural disadvantage. “Congress has two chambers composed of hundreds of people. The president and the executive branch are generally more unified.” And if the Democratic-controlled House of Representatives opposes the president, but the Republican-controlled Senate doesn’t? “It’s easier for the president to get what he wants.”

As for the idea that Chief Justice Roberts is standing up to the president, Prakash – who is the author of The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers – says: “We’ve seen the Chief [Justice] sometimes support the president’s policies and other times not… If you think that [standing up to the president] is his policy, I think that you have to suppose he’s reaching results that he disagrees with to curb the presidency – you have to doubt his sincerity for why he’s doing what he’s doing.”

“The chief doesn’t vote against every legal argument made by the administration,” Prakash adds, making it “odd to think he views himself as having this cause”. And even in the abortion case, Roberts’s reason was past precedent. One can imagine that would have been his reason regardless of who sat in the Oval Office.

There are, on lower courts, more liberal justices who rule against the president on controversial policies – and if one does, Prakash notes, there can be an injunction, holding up the particular policy and ensnaring the administration in legal battles. But there are also, on lower courts, many new conservative justices put in place by the president. “The bigger but quieter trend is the growing number of conservative appointments to the lower courts. That could well prove one of the most enduring legacies of Donald Trump, regardless of who wins in November,” Kettl observes.

And if the person who wins again in November is Trump? What, then, for the imbalance in the balance of powers? “There are signs”, wrote Kettl, “that the Trump team has begun to discover the vast powers of the presidency, especially in the actions that the president can take without legislative approval.

“That is one of the most important signals for what a second Trump term would look like – a team honed more laser-like on exploiting the president’s considerable powers to act.”

“That power,” he says, “coupled with Congress’s genuine struggle to act legislatively and, even to conduct effective oversight, could well be a harbinger of an even stronger presidency in a second Trump term.”

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