Writing in The New York Times, University of Chicago law professor Eric Posner and journalist Emily Bazelon identify one positive aspect of Donald Trump's "serial recklessness" as president: He has forced the other two branches of the federal government to assert themselves, constraining executive powers that his two most recent predecessors worked hard to expand. Except that Posner and Bazelon bizarrely view that development as ominous, warning that the checks on Trump "may ultimately diminish the power of the office," leaving it "too weak for future presidents to be able to govern effectively."
Posner and Bazelon cite two main ways in which Congress and the courts have challenged Trump: the congressional investigations of Russian meddling in last year's presidential election, including the Trump campaign's possible involvement, and the judicial decisions that so far have prevented Trump's executive orders restricting admission to the United States from taking effect. Posner and Bazelon seem to view both responses as understandable but regrettable, not so much because they are legally unsound but because they may have a lasting impact on presidential power—as if that would be a bad thing.
There is no real dispute about whether Congress has the authority to investigate Russian attempts to hurt Hillary Clinton and thereby help Trump by hacking embarrassing emails or spreading disinformation. It now looks like the House and Senate probes will take a backseat to the work of Special Counsel Robert Mueller, but his appointment by Deputy Attorney General Rod Rosenstein was itself at least partly a consequence of congressional pressure.
There is more room for debate about the decisions blocking Trump's executive orders. The legal objections to the first version of the order, which explicitly mentioned religion as a criterion for admission and which applied to legal permanent residents and current visa holders as well as people seeking permission to visit the United States, were stronger than the legal objections to the revised order, which temporarily bars admission of visitors from six Muslim-majority countries. The case against the narrower order hinges mainly on whether it amounts to a "Muslim ban" by another name, which in turn depends on viewing it in light of statements that Trump and his advisers have made rather than the text of the order itself.
"Judges are normally unwilling to look beyond the text of an executive order to divine the motivations of the president, especially in the areas of national security and immigration, where his powers are at their zenith," Posner and Bazelon write. But it is well established that a facially neutral government action can violate the First Amendment if it is aimed at disadvantaging a particular religion, and statements by its supporters are surely relevant in making that determination. Whether Trump's revised order is an example of such unconstitutional discrimination is a matter of dispute, and I have my doubts, although I think the order is bad policy. But the issue has not been definitively resolved yet, and it is perfectly appropriate for the courts to consider it.
The other judicial intervention that Posner and Bazelon mention, temporarily blocking Trump's executive order aimed at punishing sanctuary cities by withholding federal funds from them, seems even less objectionable. Depending on how it is interpreted, that order may very well amount to unconstitutional "commandeering" of local law enforcement officials, coercing them into implementing the president's immigration policies. Implicitly recognizing the problem, Attorney General Jeff Sessions yesterday offered a "clarification" saying the order affects only a small slice of federal funds and applies only to jurisdictions that "willfully refuse to comply" with a law that says local governments may not prevent police from sharing information about people's immigration status with federal agencies.
In short, Congress and the courts are doing what they are supposed to do by checking the president's powers. It is hard to see why Trump's critics would be worried rather than reassured by that, unless they are invested in an expansive view of presidential power and holding out for a time when someone they like better will get to exercise it. That does seem to be what Posner and Bazelon have in mind:
For decades, the power of the executive branch has been growing, a trend that Congress has encouraged, both actively and by default. And the courts, the other check on the executive, have often been willing to defer to the president's prerogatives….
But President Trump's words and actions are straining the relationship between the executive and the other branches of government in ways that may ultimately diminish the power of the office. By showing he's unworthy of the trust that a president customarily enjoys, Mr. Trump has essentially been daring Congress, the courts and even the bureaucracy to act against him….
Both George W. Bush and Barack Obama flexed their executive muscles. Mr. Bush enhanced the president's control over national security after the Sept. 11 attacks by opening Guantánamo, trying terrorism suspects before military tribunals, and authorizing warrantless wiretapping. Mr. Obama took unilateral aggressive actions to reduce greenhouse gas emissions and reform immigration.
They left the office stronger than when they arrived. Although their policies were controversial, both presidents were given deference because they made their judgments conscientiously and led the government professionally.
And that, according to Posner and Bazelon, is how things should be: The president grabs power, while Congress and the courts acquiesce. Those of us who are less enamored of unencumbered executive power may draw a different lesson: By alienating and alarming so many factions of goverment, the current president has provided a much-needed corrective, reacquainting people with the value of enforcing constitutional limits regardless of which party or which politician happens to control the White House.