The law of unintended consequences figures prominently public policy. When the legacy of President Trump is written into the history books, whether that be one year from now or five, it is likely that this axiom, which holds that actions frequently have effects that were far from their intended purpose and that often run counter to it, will play a prominent role. In President Trump’s case, the result of the imposition of the law of unintended consequences may be that the president’s plan to use broad executive powers to enact his agenda actually ends up limiting presidential power both for Mr. Trump and his successors.
Way back in January 2016, candidate Trump announced his intention to follow Barack Obama’s lead in using Executive Orders to get things done when Congress refused to act. “I won't refuse it. I'm going to do a lot of things, Trump said on “Meet the Press” at the time.
“I mean, he’s led the way, to be honest with you,” Trump said, “But I’m going to use them much better and they’re going to serve a much better purpose than he’s done.”
When Bill Barr was confirmed as attorney general, the president found a likeminded lawyer to help carry out his aims and, to coin a phrase, be his wingman. In a speech to the Federalist Society in November 2019, Barr lamented what he called the “steady encroachment on Presidential authority by the other branches of government,” which he said had “substantially weakened the functioning of the Executive Branch, to the detriment of the Nation.”
Most constitutionalists would probably disagree with Barr. In fact, it is generally conceded that Congress has abdicated much of its authority to the president over the past century or so. While there were exceptions, such as the War Powers Act, Congress has habitually passed vaguely worded laws and then punted them to the executive branch to iron out the details. As a result, the president and his cabinet have an almost unfettered hand in rulemaking for everything from health insurance policies to import taxes.
Even this broad expansion of presidential power has not been enough for recent chief executives. Both Barack Obama and Donald Trump pushed the envelope of presidential and executive bureaucratic authority. Resistance from Congress to these usurpations of its power has mainly been a partisan issue with the battle lines reversing depending upon which party is in power at the time.
However, the Trump Administration, headed by a president who has said repeatedly that “Article II allows me to do whatever I want,” has provoked a flurry of lawsuits pushing back on the idea that presidential power is unlimited. On one occasion, the president’s lawyers even argued in court that Mr. Trump could not even be punished for shooting someone on Fifth Avenue while in office, but that law enforcement agencies would have to wait until his term was up.
Many of these lawsuits are as yet undecided, and some may not reach the Supreme Court until after Mr. Trump is once again a private citizen. This would most likely mean that the Court never rules on these issues at all and lower court rulings stand.
Here are several of the landmark cases winding their way through the judiciary:
Donald J. Trump v. Deutsche Bank AG, Trump v. Vance, and Trump v. Mazars Lower courts ruled that President Trump must comply with a congressional subpoena for his financial records as part of a congressional investigation. The president’s lawyers argued that he had “temporary presidential immunity” while in office. The cases will be heard by the Supreme Court in March. The cases deal with both congressional and grand jury subpoenas.
Committee on the Judiciary v. McGahn A federal judge ruled in November that former White House counsel Don McGahn must testify in response to a congressional subpoena. The White House had claimed that McGahn was “absolutely immune from compelled congressional testimony.”
Regents of the University of California v. Department of Homeland Security and NAACP v. Trump These two cases will determine whether President Trump has the authority to end the DACA program, established as an executive action by President Obama. The Supreme Court heard oral arguments on these cases in November.
El Paso v. Trump, Trump v. Sierra Club, and State of California v. Trump The trio of cases challenge President Trump’s use of national emergency powers to redirect funds for construction of the border wall. These cases will probably end up at the Supreme Court as well. So far, the high court has allowed the Administration to continue using reprogrammed funds in the Sierra Club case, but a federal judge in Texas granted an injunction to El Paso County to stop the reappropriation by the president.
Some cases have already been decided as well and the results have been mixed. For example, the Supreme Court ultimately upheld the president’s travel ban but only after lower court rulings led the Administration to revise the original order. Likewise, the US Trade Court upheld the president’s authority to impose tariffs for national security reasons. On the other hand, the Supreme Court denied a Trump Administration attempt to add a citizenship question to the census because the Commerce Department violated the Administrative Procedures Act, which requires honesty and openness in public rulemaking.
Now, with US-Iranian relations at a crisis stage, President Trump is also provoking a debate on presidential war powers. Presidents have long considered the War Powers Resolution to be unconstitutional, but Speaker Nancy Pelosi has announced her intention to hold a vote limiting Trump’s ability to strike Iran without congressional permission. Among the questions to be considered is whether a tweet satisfies the president’s obligation to notify Congress.
Although President Trump has appointed many new judges, including two Supreme Court justices, the outcome of many of these cases is not preordained. Constitutionalist judges will vote on the law and the merits of the case rather than partisan affiliation. On some cases, that will put them at odds with Mr. Trump.
The Founders, fresh from a revolution in which they threw off the rule of a king, did not intend the Constitution to set up an imperial presidency with executive powers that were unlimited or nearly so. If courts act to rein in the imperial presidency, Americans of both parties will ultimately benefit.
Originally published on The Resurgent