April 16, 2020

Trump’s Unconstitutional View of Presidential Power

Russ Feingold President

White House

During an evening news briefing on Monday night, President Trump declared that he, and not individual governors and mayors, would make the decision about when and how to reopen the country. Explaining his authority by stating that “[w]hen somebody’s president of the United States, the authority is total,” President Trump claimed vast executive powers in relation to the ongoing fight against COVID-19, including the power to reopen businesses, send children back to school, and end stay-at-home orders. Legal scholars across the ideological spectrum were quick to reject his arguments. Pointing out that under our federal structure the 10th Amendment reserves these powers to the states, these scholars explained that the constitutionally enumerated powers of the national government simply do not cover the powers that President Trump alleges to have.

Two days later, on Wednesday evening, President Trump was back with another remarkable claim, this time arguing that he could adjourn Congress. Bemoaning his inability to push through recess appointments during the COVID-19 crisis, President Trump took to Twitter saying that the “Senate’s practice of gaveling into so-called pro forma sessions where no one is even there has prevented me from using the constitutional authority that we’re given under the recess provisions.”

Although scholars were again quick to explain that President Trump’s claimed adjournment power is “empty, both formally and functionally,” it is important for us to read President Trump’s claims of executive power and disregard for constitutional norms and structure, in context.

From the beginning President Trump, aided first by Attorney General Sessions and now by Attorney General Barr, has held expansive views about what the president should be able to do. Under the guise of the so-called “unitary executive theory,” this administration has claimed the authority to fire the FBI director for any reason, argued that the president is immune from criminal investigation let alone prosecution, and bypassed the congressional appropriations process to use military funds to build a wall on the southern border. Recognizing that the federal judiciary might be unreceptive to these claims, the administration has been busy appointing a record number of judges who embrace their views on presidential authority, stacking the decks, so to speak, for when executive power cases inevitably come before our federal courts.

When we put President Trump’s comments this week into this larger context, we must ask, why are we surprised? Why are we surprised that President Trump thinks he can seize power from our state leaders? Why are we surprised that President Trump thinks he can silence Congress? As Professor Neil Kinkopf wrote on the ACS Expert Forum last year, this is an “imperial presidency, in part because no [administration] has ever come so close to accepting Louis XIV’s motto ‘L’etat c’est moi.’”

So, what can we do? Although social distancing limits our capability to have in-person, strategic conversations, like we did at ACS’s day-long February 2020 symposium on presidential power, it doesn’t limit our ability to raise our collective voices and speak out against presidential overreach. I’ve only been the President of ACS for a few weeks, but I have learned in that time how unique this organization is, and how powerful our voices can be. Let’s use them.

In addition to a March 6th ACS-wide briefing call on government authority during a health crisis, several ACS chapters, including Puget Sound, Buffalo, Memphis, and our At-Large Chapter have already held virtual programming on COVID-19 and presidential authority.

We can do more. Members of the ACS network are already writing OpEds in local and national papers challenging President Trump’s claims of extra-constitutional authority in the face of COVID-19. We can write more. But we’re not asking you to do this on your own. We’re here to help. ACS has extensive resources on presidential power and the unitary executive theory, including an Issue Brief by Georgetown Law Professor Victoria Nourse, and countless posts on the ACS Expert Forum by Nourse and other scholars including Aziz Huq, Neil Kinkopf, Deborah Pearlstein, and Peter Shane. Need help identifying a speaker? We’re here – we can make introductions, provide guidance, and even help with technology.

In a recent paper, the Carnegie Endowment for International Peace explained that governments around the world are using the COVID-19 “pandemic to expand [executive] power and restrict individual rights.” From Hungary to the Philippines and Cambodia, illiberal leaders are using this crisis as an opportunity to disrupt democracy and weaken governing institutions.

We simply can’t allow that to happen here. Together, we can use our ACS voice to stand up for the rule of law and protect American democracy.




Constitutional Interpretation, Executive Power, Separation of Powers and Federalism