Government & Politics

What Limiting Principle?

There are constitutional limits to presidential power. Who will abide them?

Nate Jackson · Jun. 3, 2016
Playing with the Constitution

Article II, Section 2 of the Constitution lays out the powers of the president. Among them are to be the commander in chief, to grant pardons, to make treaties, to nominate ambassadors and judges, and, chiefly, to faithfully execute the nation’s laws. Many of the president’s powers are exercised in conjunction with Congress; in other words, he may not rule by fiat. That, of course, has been thrown out the window all too often, and never so much as during the reign of Barack Obama.

We’ve spent the last seven-and-a-half years chronicling Obama’s abuse of power, from ObamaCare to the IRS to illegal immigration to regulations galore and more. But this November, we face a choice between two authoritarian candidates with similarly troubling views of executive power.

Donald Trump displayed his appetite for such power in two recent incidents. (There are numerous other examples, but we have to focus.)

Trump is currently in the midst of three lawsuits against his now-defunct Trump University, through which he is accused of defrauding students/clients. On the campaign stump in San Diego, he offered this assessment of the judge in two of the cases: “I have a judge who is a hater of Donald Trump — a hater. He’s a hater. His name is Gonzalo Curiel. He is not doing the right thing. … What Judge Curiel is doing is a total disgrace. … What happens is the judge, who happens to be, we believe, Mexican — which is great; I think that’s fine. … Wouldn’t that be wild if I’m president and I come back to do a civil case?”

(Curiel is of Mexican ancestry, but was born some 1,500 miles north of there, in Indiana.)

The Cato Institute’s David Post finds this “appalling,” writing, “From a man being seriously considered to head one of the three branches of our government, it is a not-too-thinly-veiled attack on the notion of judicial independence and the rule of law. If the guy in charge of executing the laws thinks the system is ‘rigged’ — against billionaires, I suppose he means — and a ‘total disgrace,’ then … well, you can figure it out. Enforce the law against himself? Or against his pals? That’s for suckers.”

Trump is currently a private citizen, so his attempt at bullying a judge is not yet an abuse of power. But Obama has provided a useful template with his unseemly intimidation of Chief Justice John Roberts over ObamaCare and his in-person lambasting of the justices during his 2010 State of the Union address for their Citizens United ruling. It appears Trump is using Obama’s playbook in his run for the presidency.

For the record, none of this is to say Curiel is above criticism. Or that judges don’t also wield far too much power today. Or, for that matter, that Hillary Clinton wouldn’t be far worse when it comes to abusing executive power, or choosing terrible judges compared to Trump’s impressive list.

Seemingly in response to Trump’s criticism, Curiel ordered the release of some rather damning Trump University documents. Even company managers believed it was “misleading, fraudulent and dishonest.” Ronald Schnackenberg, a former Trump University sales manager, described the entire operation as a “fraudulent scheme” that “preyed upon the elderly and the uneducated in order to separate them from their money.”

So we’d say the bullying didn’t work out so well for Trump, and in any case it doesn’t indicate that he will see or abide by any limits to his power as president.

The second episode came when the Professional Golfers' Association (PGA) slapped Trump in the face by moving its elite World Golf Championships from Trump’s Miami course to one in Mexico City. The move was rumored ever since Trump called for a ban on Muslims entering the country.

“Can you believe it?” Trump asked the crowd at a rally in Sacramento. “Think of it: They moved the PGA Tour — moved the World Golf Championship — from Miami, where they’re furious, to Mexico City. Not good. But that’s okay. Folks, it’s all going to be settled, you vote for Donald Trump as president. If I become your president, this stuff is all going to stop.”

What will he do as president to stop it? Will he punish companies that leave the U.S. for a more business-friendly environment? Does he mean that his wall is going to keep people in as well as out?

The common thread in both of these stories is presidential power. If Trump isn’t limited by Article II — as Obama surely hasn’t been — he should explain what his constraints are. Unfortunately, this expansion of presidential power has been a problem for the last 150 years, so Trump is hardly novel in this respect. But that doesn’t excuse his repeated promises of executive abuse, nor is it encouraging for defenders of Liberty and Rule of Law.

As David Limbaugh writes, “[E]ven if we take drastic action, we must always do so within the constraints of the Constitution — being mindful that to restore America’s greatness, we must reclaim our founding principles.” He’s exactly right.

Click here to show comments