U.S. President Donald Trump said at a cabinet meeting last week: 'I have the right to do anything I want to do.'Mark Schiefelbein/The Associated Press
Two presidents, two sentences, two different eras, two different implications of the sentiment – and one efficient way of looking at American politics today.
The first sentence, from Richard Nixon, three years after he left office: “When the president does it, that means it is not illegal.”
The second sentence, from Donald Trump, at a cabinet meeting last week: “I have the right to do anything I want to do.”
Those two comments are separated by 48 years – and a chasm of context.
Mr. Nixon was seeking to justify his crimes in the Watergate scandal. His remarks were more a rationalization than a rationale. The sentence that followed in his 1977 interview with David Frost is immensely significant. “Actions which otherwise would be unconstitutional,” he said, “could become lawful if undertaken for the purpose of preserving the Constitution and the nation.”
That rationale was employed in the past by Abraham Lincoln, in unilaterally suspending habeas corpus during the Civil War, and by Franklin Delano Roosevelt, in asking, in his first inaugural address, in 1933, for “the one remaining instrument to meet the crisis – broad executive power to wage a war against the [economic] emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.”
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Lincoln and FDR governed in times of unprecedented crisis and danger, one who witnessed the country fall apart after 11 Southern states seceded from the Union, the other who feared the collapse of the entire economic foundation of a country whose identity was based in large measure on how its economic character was central to its political character.
And now, Mr. Trump is employing the same kind of language and the very same thesis in extending the prerogatives and power of his office.
And at the heart of the crisis of confidence, identity and character of the contemporary United States is whether that extension of executive power is justified in a country otherwise at peace, broadly bathed in prosperity, and still regarded as the greatest economic, cultural and military power not only in the world but also in the history of the world – in short, not in the kind of circumstances that the 16th and 32nd presidents experienced.
Mr. Nixon’s invocations of executive privilege and his coverups of Watergate-related episodes are what led to impeachment hearings and to the near certainty that he would be convicted and evicted from office and that prompted his eventual resignation of the presidency.
Mr. Trump’s invocations on the major issues of this contemporary period are applauded by his political base, but in many areas – such as his policies on immigration (approval of only 43 per cent, according to the Reuters/Ipsos poll conducted in late August), the economy (37 per cent) and the presence of troops in Washington (38 per cent) – there is far from majority support. His overall job-approval figure (40 per cent, with 54 per cent disapproval) is under water.
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Then again, various survey results indicate there is considerable unease in the United States and the conviction that the country is in a crisis – a different sort of crisis than any that prompted earlier extensions of presidential power. But part of that sense of crisis is derived from the President’s actions to address that crisis.
The result is the conviction among Mr. Trump’s opponents that the country is suffering a constitutional crisis – the same term that was applied to the United States during the 1972-73 Watergate period of the Nixon presidency.
Even if Mr. Nixon believed his remarks about the presidency rendering his actions legal, he ultimately abided by American political norms and backed down when the Supreme Court forced him to hand over the Oval Office tapes that were central to the peril he faced from congressional willingness to remove him from office.
By contrast, Mr. Trump is basically correct when he says he can “do anything I want to do,” because the legislative branch, controlled by the Republican Party that he in turn controls, has shown no inclination to resist his initiatives, even when its own rights are threatened.
“Nixon wanted to expand presidential power but he complied because the other branches pushed back,” said Daniel Urman, a constitutional-law scholar at Northeastern University. “We currently have a Republican Congress afraid of the President and a Supreme Court supermajority that signs off on just about anything that Trump does, especially regarding immunity from criminal prosecution. Trump is using that as a sword, not a shield.”
The result is a separation of parties, not separation of powers.
The Democrats’ only tool to curtail executive power is by prevailing in next year’s midterm congressional elections. Even that would provide no assurance Mr. Trump would be restrained.
His latest action – indicating last Thursday he wouldn’t spend US$4.9-billion in congressionally approved foreign aid – is within the far penumbra of the law, though no president in a half-century has told Congress at the end of a fiscal year, which this year expired Sunday, that he wouldn’t spend funds it appropriated.
An appeals-court judge Friday gave Mr. Trump until the middle of next month to defend his unilateral tariffs, which could be in violation of the constitutional provision granting Congress the powers to “lay and collect Taxes, Duties, Imposts and Excises.”
His other recent actions – the firing of the head of the Bureau of Labor Statistics because he didn’t like the agency’s job findings, firing a member of the Federal Reserve despite its status as an independent entity, among many others – are beyond precedent and almost certainly beyond the purview of presidential power.
Much of this is justified by the administration’s legal theorists as consistent with the “unitary executive” philosophy granting the president unlimited power over all executive agencies and functions.
This is based on the Constitution’s Article II language stating that “the executive Power shall be vested in a President.” This notion has been floating around Washington and among scholars of the American government for four decades but remains controversial, with its application still not decisively adjudicated by the courts.