Many posts have discussed presidential power.
[N]owhere is the evidence of the new right’s willful decline more obvious than in its rejection of fidelity to the rule of law and the Constitution. As the Trump administration ignores due process, encroaches upon press freedom, and subverts the independence of the judiciary—all central pillars of self-government—top executive branch officials and Republican members of Congress turn a blind eye, or cheer it on. And let us be clear: The previous administration was no paragon of civic health either. Our own Sarah Isgur argued earlier this year that Joe Biden left office in January having caused more damage to the rule of law than any of his predecessors. But the Biden administration’s myriad failures and abuses are not a warrant for this administration to do worse in the spirit of “retribution.”
Take, for example, the administration’s ongoing campaign of intimidation against law firms. These executive orders may have begun as an exercise in retaliation, but their initial success at extracting concessions and capitulation has given way to both a shakedown operation and a means of hacking the rule of law and the constitutional order. Lawyers who might want to take on clients targeted by this administration have, in effect, been told, “That’s a nice little law firm you have there, it’d be a shame if something happened to it.”
But the administration’s most disturbing assault on the Constitution is the one it cynically touts as a patriotic defense of it: a president’s unchecked power. There is plenty of scholarship supporting the theories of the unitary executive; at a basic level, the arguments are uncontroversial and defensible. But the idea of the unitary executive is not, and has never been, a warrant for what Edmund Burke, John Locke, and the Founders called “arbitrary power.” As James Madison wrote in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
We are not there yet. Our sadly enfeebled institutions and deteriorating commitment to republican government are not yet so enervated as to permit outright tyranny, and we are encouraged by fledgling efforts by lawmakers to reclaim some of the authority granted to the legislative branch by Article I of the Constitution, however unlikely they are to succeed. But the rhetoric coming out of the White House—and the logic underpinning it—is moving rapidly in a dark direction. Donald Trump’s musings about serving a third term or his promotion of a Napoleon quote—“He who saves his Country does not violate any Law”—may be discounted as trolling, but as our own Nick Catoggio has noted, when it comes to Trump, “everything’s a joke until it isn’t.”
