The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In recent weeks, even some commentators who are not normally sympathetic to President Trump have praised him for supposedly restoring the separation of powers. They include legal scholar Josh Blackman, former American Enterprise Institute President Chris DeMuth, and Matt Welch of Reason, among others. The main point they make is that Trump and his appointees have cut back on some regulations, and promise to avoid imposing new regulations through "guidance letters" that circumvent the normal regulatory process. DeMuth even goes so far as to claim that Trump has "proved to be a full-spectrum deregulator" and that "[h]is administration has been punctilious about the institutional prerogatives of Congress and the courts."
The Trump administration has indeed produced some useful deregulation. One particularly noteworthy example is their withdrawal of a proposed Obama rule banning the sale of hematopoietic stem cells that contain bone marrow, a change that could save many lives. Overall, however, Trump has done far more to undermine constitutional constraints on presidential power than strengthen them. A "full-spectrum deregulator" he is not. Much the contrary. Trump is more than happy to breach constitutional limits whenever it might help advance his agenda.
Consider the administration's efforts to punish sanctuary cities, jurisdictions that refuse to assist federal efforts to deport undocumented immigrants. As federal judges of both parties have repeatedly ruled, Trump's and Attorney General Jeff Sessions' efforts to target sanctuary cities undermine both federalism and separation of powers. By imposing new federal grant conditions that were never authorized by Congress, the administration is attacking legislative control of the power of the purse, and also potentially creating a powerful tool by which the executive can pressure states and localities. I summarized the dangerous implications here:
Longstanding Supreme Court precedent indicates that only Congress can impose conditions on grants given to states and localities, and that those conditions must be "unambiguously" stated in the text of the law "so that the States can knowingly decide whether or not to accept those funds…."
Should the administration manage to get away with [its efforts to impose new grant conditions], it will set a dangerous precedent that goes far beyond… the specific issue of sanctuary cities. If the president can unilaterally add new conditions to one federal grant program, he can do the same thing with others. This would give presidents a massive club to coerce state and local governments on a wide range of issues….
Some conservatives may cheer when the current administration uses this tool against sanctuary cities. But they are likely to regret their enthusiasm if a liberal Democratic president uses the same tactic to force states to increase gun control, adopt a "common core" curriculum, or pursue liberal policies on transgender bathroom accommodations.
Allowing the executive to impose its own after-the-fact grant conditions also threatens the separation of powers. It goes a long way towards taking control over spending away from Congress and transferring it to the president. This, of course, violates the text of Article I of the Constitution, which clearly gives the power of the purse to the legislature, not the executive.
Trump and Sessions' asset forfeiture policies represent another attack on federalism, in that they undermine state and local governments' control over their own police forces. They also undermine due process by incentivizing law enforcement agencies to seize the property of people who have never been charged with any crime, much less convicted, often failing to give owners a meaningful opportunity to challenge the seizures. Seizing property without due process is a classic example of executive overreach.
Trump's immigration policy also belies the notion that he is a "full-spectrum deregulator" respectful of the prerogatives of Congress and the courts. It has resulted in a crackdown which undermines liberty and due process for both new immigrants and American citizens. Trump's travel ban "proclamation" is not only motivated by unconstitutional religious discrimination, but also openly discriminates on the basis of nationality, in direct violation of a law enacted by Congress. Here too, it's difficult to find much in the way of respect for separation of powers.
Trump's rule by unconstitutional executive orders and proclamations is no better than Obama's government by guidance letter. In some respects it is even worse. Unlike Trump's orders, Obama's guidance letters were, at least in principle, not supposed to be legally binding.
Perhaps worst of all, Trump has doubled down on Barack Obama's most dangerous breach of the Constitution: waging a war initiated without congressional authorization. In October, Secretary of Defense James Mattis and Secretary of State Rex Tillerson testified to Congress that the administration does not need any congressional authorization to continue the war against ISIS—which Obama began and continued without congressional authorization. The Trump administration has endorsed Obama's implausible claims that the war is authorized by previous congressional resolutions aimed at entirely different adversaries. In August, Trump threatened to rain down "fire and fury" on North Korea in response to its potential threats—without betraying any recognition that initiating a new Korean War would require congressional authorization.
Even when Trump ultimately does the right thing on separation of powers issues, it is usually more a matter of short-term political expediency than a true restoration of constitutional constraints. For example, Trump was right to put an end to illegal Obamacare subsidies that had not been authorized by Congress. But he did so only after a failed effort to use the subsidies as leverage to extract concessions from Congress. The message here is not that the president won't spend money without congressional authorization, but that he will only do it when it might be politically advantageous. In this instance, Trump is like a thief who claims to be reformed, but actually only stopped stealing because he no longer wanted particular type of stolen property.
Finally, there is the matter of Trump's open disdain for "so-called judges," freedom of the press, and other constitutional constraints on his power. It is easy to dismiss all of this as mere words. Who cares what Trump says on his Twitter account? But such dismissals ignore the fact that adherence to constitutional limits on government power depends on norms, not just judicial decisions or formally enacted policies. When those norms are undermined—especially by the most powerful government official in the land—future breaches of the Constitution become more likely—and more thinkable. A political culture that accepts presidential disdain for the judiciary or for freedom speech, is one that becomes less likely to curb future abuses of power.
In one sense, of course, Trump's bad behavior may strengthen the separation of powers in the long run. It might lead Americans to have a greater appreciation for the need to constrain presidential power. I hope that happens. But I very much fear that, instead, Trump's abuses will serve as precedents for similar or worse ones by his successors—just as Trump himself has built on those of Bush and Obama. That is all the more likely to happen if Trump manages to get away with his abuses without paying a substantial political price. Ironically, therefore, the best way to make sure that Trump helps make separation of powers great again is to recognize that he is actually trying to do the opposite, and penalize him for it.