Donald Trump

Trump's Diminishment of the Presidency Is Healthy, Not Scary

The checks and challenges invited by the president's "serial recklessness" should be welcomed.

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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.

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  1. 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.”

    “Wait, wait, wait, let us be clear–it’s not that we don’t want a powerful President, it’s that we don’t want one that isn’t a Democrat!”

  2. I can’t say that I’m surprised by this reaction to Trump, although I find it disappointing.

    To my mind, one of the few potential positive aspects of a Trump presidency has been that his unwavering ineptitude could result in a broad push to check the powers of the executive branch. There was absolutely no chance that this kind of pushback would occur under a Hillary presidency. This kind of correction has has happened on several occasions of presidential overreach, notably after Watergate and it is effective if ultimately impermanent. Still, some brief decentralization of power is better than continued agglomeration.The danger of Trump being forced from office so early in his term is that people take the wrong lesson from this debacle.

    So please, Trump, hang on through your first term! Your formidable incompetence is much appreciated, if you can manage to drag the grandeur of the Presidency down with you!

    1. Yep, totally agree.

  3. It’s not that Trump is “right”. It’s that Posner and Bazelon are power-worshipping freaks.

    1. I’m not familiar with Bazelon’s writing but Posner is as infuriating to read as Stewart Baker. It’s hard to believe that there are people who seriously think the government is made up wholly of saints just like themselves who know beyond a shadow of a doubt what’s best for everybody and can absolutely be trusted with absolute power.

  4. Well, duh.

  5. 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.”

    It’s not that bizarre when you consider that, like most of the proggressive twats bitching and moaning about Trump, their problem isn’t with expanded Executive authority, but with the person currently wielding it. Principals > Principles.

    1. Someone on here, I can’t remember who, made the comment, “It’s not the whip they abhor, it’s the hand that wields it.” I’ve stolen that and used it whenever these situations come up, and progressives always REEEEEEEEE when it’s mentioned because they can’t defend themselves against it intellectually.

      That’s what happens when you treat your political ideology like a religion.

  6. Posner in particular is a well-known pro-strongman advocate of the presidency. The only surprising part here is that he remains consistent even in the age of Trump.

    1. The only surprising part here is that he remains consistent even in the age of Trump.

      That’s because he’s a True Believer in the supremacy of the State. He would be perfectly fine with living under a dictatorship so long as the Right Person is in charge.

  7. I keep looking to see how Trump is diminishing the presidency, and I just don’t see it.

    He made a lot of obnoxious statements during his campaign. He writes angry tweets. is that what we’re talking about?

    From the link:

    “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. “

    I guess they’re talking about . . . ?

    Regardless, I wouldn’t count on an obnoxious president to bring about lasting constraints on the presidency–not if all the next president needs to do to reestablish trust in the office is go back to speak in measured tones and stop writing obnoxious tweets.

    Ultimately, if the office of president has too much power, it’s the voters who are to blame. So long as they want a president who will promise to use the power of the office to inflict their will on the rest of us, congress won’t stand in his or her way.

    Personally, I was hoping that a president who speaks from the hip might cure the press of its obsession with what the president says and how he says it–rather than what the president does and how he or she does it. Barack Obama was a terrible president–despite speaking in measured tones and refraining from writing obnoxious tweets–and whether Trump is a good president bad, it won’t be because of the things he says.

  8. “WASHINGTON, D.C. — Americans’ trust and confidence in the mass media “to report the news fully, accurately and fairly” has dropped to its lowest level in Gallup polling history, with 32% saying they have a great deal or fair amount of trust in the media. This is down eight percentage points from last year.”

    —-Gallup, September 14, 2016

    http://tinyurl.com/hda5s4u

    That 32% was once as high as 72%. That eight percentage point drop over the course of the campaign almost certainly accounts for more than Trump’s margin of victory.

    I’ve said it before and I’ll say it again: Trump didn’t win despite negative coverage in the media. Trump won because of negative coverage in the media.

    Along the lines of Sullum’s piece, I’m hoping that the press’ abysmal failures will trigger change–but I don’t see that happening. I see the media doubling down on TDS.

    There are only two institutions in our society that have lower approval ratings than Donald Trump. One of them is Congress, and the other is the news media. Don’t expect the less popular institutions to dominate the more popular one.

    1. People who value freedom in a democratic society shouldn’t be so delighted at high levels of distrust of the press.

      Fascists always attack the press along with academia and any other institutions of public trust that get in their way. Careful you’re not playing into their hands.

      1. Blind faith of the press is not wise either, particularly when they take upon themselves the role of Wise Ones who will tell us lesser beings what we should believe.

        1. Anyone who talks of the press as a monolith is a moron who’s being played by powerful interests. You think the Washington Post, CNN, NYT, the BBC, etc., all collude to spread lies about whatever, the glorious leader Donald Trump who without those meddling journalists would be building his wall of freedom by now?

          It’s a pathetic habit.

          1. No, that’s not what I think. You should warm up before swinging at your strawman, you could pull a muscle.

            There’s no conspiracy, there’s just an incestuous bunch of people who consider themselves an “elite” and who look down their narrow noses with the utmost contempt at the people in that democratic society you’re going on about.

            1. I wonder when being elite started being a bad thing. You want uneducated rubes reporting the news, or what?

              1. Gotta love it when Tony’s mask slips and you get to see what an arrogant, self-superior person he really is.

              2. There’s a difference between being a genuine member of an elite group, based on achievement, and believing oneself to be elite with no justification.

                This may surprise you, but it’s possible to be educated and still get along with people.

                1. It’s also possible for one’s political beliefs to be so contradicted by empirical reality that you retreat into a pathetic stance of feebly lashing out at institutions that report on that empirical reality.

          2. Tony said:

            Anyone who talks of the press as a monolith is a moron who’s being played by powerful interests.

            And earlier, Tony said:

            People who value freedom in a democratic society shouldn’t be so delighted at high levels of distrust of the press.

            Together, these imply that Tony is a moron who’s being played by powerful interests.

            QED.

            Next.

            1. Brian fails logic. Tony was responding specifically to EES’s statement “Blind faith of the press is not wise” where “of the press” implies a uniformly credulous bunch of info-gatekeepers. I don’t think EES is a moron, just guilty of slack reasoning in this one instance.

              However, Tony is spot-on with the statement about the damage to our political fabric by widespread distrust of the press. Read your history. The Founders went wayyyy out of their way to make sure a fertile, rambunctious, independent press would always be a bulwark of our society and democracy.

          3. “Anyone who talks of the press as a monolith is a moron who’s being played by powerful interests. You think the Washington Post, CNN, NYT, the BBC, etc., all collude to spread lies about whatever, the glorious leader Donald Trump who without those meddling journalists would be building his wall of freedom by now?”

            —-Tony

            “Six of the seven U.S. outlets in our study?CBS, CNN, NBC, The New York Times, The Wall Street Journal, and The Washington Post?are among those [Trump] has attacked by name. All six portrayed Trump’s first 100 days in highly unfavorable terms (see Figure 6). CNN and NBC’s coverage was the most unrelenting?negative stories about Trump outpaced positive ones by 13-to-1 on the two networks. Trump’s coverage on CBS also exceeded the 90 percent mark. Trump’s coverage exceeded the 80 percent level in The New York Times (87 percent negative) and The Washington Post (83 percent negative). The Wall Street Journal came in below that level (70 percent negative), a difference largely attributable to the Journal’s more frequent and more favorable economic coverage.”

            —-Harvard University

            http://tinyurl.com/kel4lwf

            1. Couldn’t possibly have anything to do with Trump being a monumental failure deserving of every bit of negative press coverage he gets?

              1. I am so pissed off that Democrats didn’t get to pick our next SCOTUS!

              2. Care to name one of Trump’s monumental failures?

                By way of comparison, George W. Bush got 57% negative coverage to 43% positive–according to Harvard..

                Trump has received 80% negative coverage–and he hasn’t invaded Iraq, fiddled while New Orleans drowned, or spent billions in taxpayer money to bail out Wall Street like Bush did.

                Regardless, Harvard typified Trump’s negative portrayals in the news as being almost “in unison”–and they aren’t morons.

                1. It must be a media conspiracy.

                2. Hehe, I hit pause on a FiveThirtyEight podcast about this very topic to read the comments here….

                  One important qualifier is these percentages are excluding a roughly 30% neutral coverage rate. So the 90+% figure on CNN is only roughly 60% negative overall.

                  Next, you are comparing Trump’s actions to the most memorable events out of 8 years of other presidents. Not really an equal comparison. I completely agree that Trump hasn’t done anything nearly as sequential as starting a war, but conversely, he hasn’t exactly done anything worthy of praise either.

                  -The healthcare bill crashed and burned on its first try, was passed through unpopular means the second time, and remains incredibly unpopular overall. Why would this get positive coverage?

                  -The travel ban has been shot down by the courts, twice, and is also disliked by a majority. Again, why would this get positive coverage?

                  -Think of the ongoing Russia and Comey scandals what you will, but they are certainly not “achievements.”

                  The thing most worthy of praise so far was Neil Gorsuch – which he’s gotten a fair amount of praise for. In total, there’s a pretty compelling case that Trump has gotten exactly as much negative coverage as his actions warrant. Maybe not at the decibel level warranted, but in terms of numerical negative headlines, it seems perfectly defensible without considering partisan influence.

                  1. “Next, you are comparing Trump’s actions to the most memorable events out of 8 years of other presidents. Not really an equal comparison.”

                    A) I was comparing Tony’s statement to reality:

                    “Anyone who talks of the press as a monolith is a moron who’s being played by powerful interests.”

                    Yes, the press has been far harsher to Trump than they have to any President since Reagan, at least–and Harvard isn’t morons.

                    B) If comparing Trump’s coverage to the coverage of Bush Jr.–including his biggest blunders–then if that is unfair, it’s biased in favor of the media. Even when you throw in Bush’s worst blunders, Trump gets it worse than Bush?

                    That Trump can draw such negative coverage despite not having any major blunders like Bush yet is a testament to how biased the coverage is. Whatever mistakes you imagine Trump has made, they’re nothing like Bush’s failures in the aftermath of Katrina, etc.

                    1. You’re still comparing Bush’s overall coverage, but citing his worst moments. I guarantee the coverage of Bush in the weeks immediately after Katrina was not 43% positive.

                      Does the analysis make any distinction between “degrees of negativity?” Or is one negative headline counted the same as any other, despite the perceived terribleness of the event? If the latter is true, parsing out who did worse things wouldn’t be relevant.

          4. You think the Washington Post, CNN, NYT, the BBC, etc., all collude to spread lies about whatever, the glorious leader Donald Trump who without those meddling journalists would be building his wall of freedom by now?

            I think most of H&R’s “libertarians” think that, yes.

        2. “particularly when they take upon themselves the role of Wise Ones who will tell us lesser beings what we should believe.”

          WHO CARES? Do you really expect validation from the Washington Post for your beliefs?

          1. Yeah, that’s exactly what he said–except for the part you left off, “Blind faith of the press is not wise either, particularly when . . . ”

            Do you really expect people to have blind faith in the Washington Post?

          2. No, my beliefs should be of no concern to them whatsoever. In other words, they should mind their own fucking business–reporting the news–rather than trying to convert me to their religion.

      2. “People who value freedom in a democratic society shouldn’t be so delighted at high levels of distrust of the press.”

        Did I say I was delighted?

        I said I was hoping for change.

        The quality of the news we get is appalling.

        People don’t trust it because it’s untrustworthy.

        Do you want people to believe in the press no matter what the press says?

        Here’s the White House press corps. promising to present a “united front” against Trump in an open letter they published in the Colombia Journalism Review:

        http://tinyurl.com/m4csxr2

        That’s the ultimate source of every report we get about the president. Why should anyone trust the news they get from a White House press corps. that’s united against Trump?

        The beating will continue until morale improves!

      3. Fascists always attack the press along with academia and any other institutions of public trust that get in their way.

        So do Hit & Run “libertarians.” And all partisans. And those members of the press who pretend that they are not the press so they can scapegoat the “lamestream” and all its Jews leftists liberals Marxists academics intellectuals queers Gypsies undesirables.

        1. Show me on the doll where the libertarian molested you.

        2. The euphemism du jour is “globalists.” (They mean the Jews.)

          1. Sounds legit.

  9. A refreshing note of blind optimism from these pages. It’s actually a good thing the president is uniquely incompetent and corrupt, it got those lazy congressmen and judges off their complacent asses!*

    *Brought to you by the Republican National Committee. Vote for incompetence and corruption. It makes things better somehow.

    1. What would really be refreshing would be if people realized that if the presidency were still confined to its proper limits, Trump never would even have run for the office. It’s the power that attracts authoritarian freaks like him.

      1. He didn’t want the power, he wanted the title.

        1. You just keep telling yourself that the accumulation of power isn’t dangerous. I mean, it’s not like history is riddled with examples or anything.

          1. You’ll not find me advocating for a more powerful presidency.

            1. “…except when a Democrat is in the White House,” is how that sentence ends.

              1. At least I own my partisanship. Y’all here are a bunch of liars.

                1. Yes, Tony, we are all the same. Why must you be such a bigot? Why, the other day, Tony accused me of being a Trump supporter. That hurt, man.

                  1. Why, the other day, Tony accused me of being a Trump supporter.

                    That’s because if you don’t full-throatedly condemn Trump for absolutely every wisp of a rumor that circulates, then you worship at the Altar of Trump every morning by sacrificing Black Jewish babies.

                    This is how Tony demonstrates that he’s above the binary thinking that infects all of us here.

        2. It wasn’t the title – his buddy Bill told him that when you’re the President, women will just let you grab ’em by the pussy.

  10. One of the most revealing quotes: that it diminishes the president’s power to “govern effectively”. The belief that effective governance means doing more is the central problem

    Gary Johnson sucked in quite a few ways, but I remember when the media started attacking him for vetoing all the time as governor, saying he “refused to govern”. That was probably the best thing about him

    1. Same bitch about the “do-nothing” Congress – they’re not just doing nothing, they’re doing precisely nothing. “Nothing” is the thing that they’re doing and the more nothing they do the better off we all are.

      1. Unfortunately at this junction on the road to serfdom what we need is more undoing.

    2. President Puff Thuggy doesn’t want to govern. He wants to rule.

      1. I don’t think he wants to govern or to rule. I think he just likes to sit at the big desk.

        1. It’s a YUGE desk. Very classy. Believe me.

        2. If all his did for the next four years was sit at a big desk, that coupled with his also not being Hillary would make his term a resounding success in my book.

        3. I think he just likes to sit at the big desk.

          Don’t forget the bi-weekly, all-expenses-paid golf outings! With those cool, black-clad Secret Service agents shooing away the riffraff. It’s good to be king!

  11. I can’t figure out how they perceive a couple of failed executive orders as diminishing the power of the executive. It would be nice to see something a little more systemic that actually diminishes the institution as a whole.

    1. I’d add that when that judge stayed Trump’s executive order, not because of the text of the order itself–but because of Trump’s campaign rhetoric–it diminished the judiciary.

      1. They even defied precedent.

  12. Two comments for Bazelon and Posner:

    First, far from receiving “deference,” both Bush and Obama received spirited opposition to their expansions of presidential authority, including but not limited to the opposing political party taking over control of Congress during their respective terms, and having several of their actions struck down by the courts.

    Second, I was under the distinct impression that the measure of a president was leaving the country, not the office of the president itself, stronger than what it had been before. guess I was wrong.

    1. Posner and Bazelon appear to have read “The Cult of the Presidency”…and subscribed to it.

  13. Yes, victims should actually invite assaults so that the cops can be better prepared for real crises.

  14. I agree that limiting the power of the presidency in a general sense is good, but I don’t want to lose sight of the systemic forces that pushed Clinton, Bush, and Obama to consolidate power the way they did: an increasingly dysfunctional legislator. If the one of the outcomes of Trump is a curtailed executive, that’d be good….as long as Congress gets its shit together and actually does its job. A perpetually useless Congress AND a weak president is not a good place for a country to be.

  15. Everyone seems to focus on the Presidency, but in all actuality, it is the House and Senate that routinely pass god-awful, often bipartisan law, completely removed from evidence, reality, and in many cases, the Constitution. The legislation that Congress has passed deserves to be mocked and ridiculed, and not rubber-stamped by the sitting President. We need checks on Congress every bit as much as the Executive.

    1. Little-known fact, Norm: the Congress actually writes the bills. I am not making this up!

  16. I remember the Nixon impeachment with nostalgia. Mysticism has declined since then, and with it, public confidence in the mystical looter politicians entrenched in Congress. Republican prohibitionists HAD to outsource and get a flimflam artist to sell their platform. Nobody would vote for another faith-based Bush! And since BOTH communism-of-pelf parties are WRONG in beliefs, principles and practices, it’s easy to get hissing matches and dogfights started.
    Don’t fancy I exaggerate–I got my news from the Chinese plate!

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