After Donald Trump beat Hillary Clinton in 2016, I hoped that "electing a preening, petty, thin-skinned, whiny, vindictive, vacuous, mendacious, boorish bully" would prompt "a reconsideration of the absurd hopes and cultish veneration that surround the presidency." I suggested that "a ridiculous president will encourage Americans to take the presidency less seriously." And as Trump went on to assert various kinds of extraconstitutional authority, I hoped that example would encourage his opponents to see the wisdom of dethroning imperial presidents and restoring the separation of powers.
With Trump gone, however, some Democrats seem determined to forget that lesson. "Joe Biden Must Not Shy Away From the Full Power of the Presidency," says the headline above a New York Times op-ed piece by University of Chicago law professor Eric Posner. "During the presidential campaign," Posner notes, Biden "was not shy about criticizing then-President Donald Trump for abusing his executive authority." But Posner, who seems to be drawing the wrong pointers from his 2020 book The Demagogue's Playbook, warns that such constitutional concerns are dangerous to the Democratic agenda now that Biden has replaced Trump. As Posner sees it, untrammeled presidential power is a problem only when Americans make the mistake of electing the wrong president.
"Many Democrats think that a lesson of the Trump years, culminating in the siege of the Capitol, is that presidential power needs to be curtailed," Posner writes. "Power that has accreted to the presidency over the years should be transferred back to Congress. Executive branch agencies, above all the Justice Department, should enjoy more autonomy. Oversight of the presidency should be strengthened. Only with such reforms can we be sure that future presidents will not abuse their powers." But "Democrats should be careful what they wish for," he says, because "a weakened presidency would hamper national governance, and Democratic policies in particular."
The Constitution assigns the legislative power to Congress, which can pass new laws only with the approval of both chambers. But that requirement is awfully inconvenient, Posner complains, especially for Democrats. "The Democratic margin in the Senate—zero—is too slim for Mr. Biden to push ambitious laws through Congress, which is balky and slow even when majorities in both houses are broadly in agreement with the president," he writes. "Congress by its nature moves slowly and gets little done, which often suits Republicans just fine, as they tend to prefer the status quo."
Worse, "congressional approval requires the consent of the Senate, which is disproportionately influenced by conservative senators from largely rural states." Posner worries that "if power is moved from the presidency back to Congress, national policy will shift to the right, on average, over time."
In short, Posner thinks constitutional constraints are fine when the president is a Republican but should be ignored when Democrats are running the show, because the ends (immigration reform and control of greenhouse gas emissions, for example) justify the means. That approach is not just unprincipled but dangerously shortsighted, for Democrats no less than Republicans. Even from a strictly partisan perspective, Posner's advice is sensible only if Democrats are sure they will always control the executive branch. People who abandon constitutional principles because they prove inconvenient are in for a rude surprise when the other team wins.
Is Biden likely to take Posner's advice? The evidence is mixed.
During his campaign, Biden originally promised to fight COVID-19 by issuing an executive order that would require all Americans to wear face masks in public. In September, he admitted that the president has no legal authority to issue such an order. Last week Ron Klain, Biden's chief of staff, said the order would be limited to "federal property and inter-state travel." The actual order, which Biden issued yesterday, is even narrower. It applies to "Federal employees, on-site Federal contractors, and other individuals in Federal buildings and on Federal lands." There is no mention of "inter-state travel." [Update: On Thursday, Biden issued a separate order that requires masks at airports and on commercial aircraft, trains, intercity buses, ferries, and "all forms of public transportation."]
By contrast, Biden plans to unilaterally extend a nationwide eviction moratorium that was originally imposed by the Centers for Disease Control and Prevention (CDC), then renewed by Congress last month. The legal rationale for that moratorium relies on a sweeping and highly dubious interpretation of the CDC's authority to take measures "reasonably necessary" to stop the interstate spread of communicable diseases. If Biden accepts that interpretation, it is hard to see why he thinks a broad, nationwide mask order is beyond his powers.
"At best," Christian Britschgi notes, Biden's puzzling distinction between requiring face masks and prohibiting evictions suggests he "has an inconsistent view of his own powers to fight the pandemic." A less charitable interpretation is that "the new president is letting politics, not legal principles, guide his executive actions."
Several of the other executive orders that Biden issued yesterday have a firmer legal basis. For example, he rescinded the emergency declaration that Trump controversially claimed allowed him to pay for the border wall Congress refused to fund by diverting money from other parts of the federal budget. "It shall be the policy of my Administration that no more American taxpayer dollars be diverted to construct a border wall," Biden's order says. Unlike Trump's policy, that position defers to the legislative branch's control over federal spending. Biden's orders reversing Trump's changes to census procedures and lifting his ban on visitors from various predominantly Muslim countries likewise are clearly within the president's authority.
Biden also issued a memorandum aimed at "preserving and fortifying" protections for unauthorized immigrants who entered the country as children. That Obama administration policy, known as Deferred Action for Childhood Arrivals (DACA), is framed as an exercise of prosecutorial discretion. DACA's defenders argue that it is constitutional in light of the broad leeway that Congress has given the executive branch in enforcing the immigration laws. DACA's critics say it is an unconstitutional end run around Congress, which so far has declined to protect this group of immigrants, despite broad public support for that policy.
Posner thinks Biden should not worry about such constitutional niceties, because they could stop him from doing what needs to be done. While many of Trump's critics were dismayed by his legally groundless assertion that he had "total" authority over COVID-19 control policies across the country, for instance, Posner wants Biden to assert that same unconstitutional power.
"A major complaint against Mr. Trump was that he failed to fully use his emergency powers to address the Covid-19 pandemic," Posner writes. "He could have, for example, increased restrictions on movement to help curtail the contagion and done more to help states buy protective equipment and to distribute vaccines. For Mr. Biden to follow through on his plan to formulate a more aggressive response to the pandemic, he will need to rely on the emergency powers that Mr. Trump disregarded."
In Posner's view, Biden should exercise kingly "emergency" powers to tell Americans whether and under what circumstances they may leave their homes. Yet the Constitution does not give Congress, let alone the president, the authority to impose a nationwide lockdown. Under the Constitution, the federal government is limited to specifically enumerated powers, which do not include a general authority to protect the public from communicable diseases. That responsibility lies primarily with the states, which retain a broad "police power" that goes far beyond the authority vested in the president or Congress.
Posner is right that federalism and the separation of powers are obstacles to a president who wants to impose his will on the nation. Democrats welcomed those obstacles when that president was Trump. They should resist the temptation to think such limits can be safely abandoned now that their guy is in charge.