Both presumptive presidential nominees have been accused of aspiring to executive excess. Those fears have been exacerbated by the Obama administration’s actual, unparalleled presidential overreach.
Through his agencies, President Obama waived enforcement of immigration laws. He fast-tracked coal plant regulations to implement the unratified Paris climate agreement. He waived numerous Obamacare statutory mandates for financial or public relations reasons.
His IRS wantonly targeted conservative groups. He threatened states that restricted giving their own money to Planned Parenthood. He violated a longstanding religious freedom statute leading to two additional Supreme Court cases on Obamacare.
And in perhaps his most statutorily untethered agression, President Obama’s Justice and Education Departments have decreed that every public school should let biological males into girls’ locker rooms, and anyone who disagrees is a Jim Crow segregationist.
President Obama’s overreaches have met some resistance, however. Congress scaled back “risk-corridor” bailouts of insurance companies under Obamacare. The Supreme Court has resisted more actively, blocking presidential excesses on immigration, climate change, and religious liberty.
So what happens if the next president embraces President Obama’s unilateral executive tactics?
Former Secretary of State Hillary Clinton often endorses President Obama’s executive actions, including his latest. She has fended off Sen. Bernie Sanders to her political left by further promising to oppose guns and corporate free speech.
New York Times columnist Ross Douthat fears Donald Trump may use “the power of the presidency against private enterprises, … party donors, military officers, the press, the speaker of the House, and more.”
Robert Kagan warns Trump will embody the “mobocracy” the American founders feared.
The American founders blunted mobocracy not merely with rational debate but with separation of powers. Those powers will pose different levels of resistance to these two nominees if they become president.
It’s unclear who will control the 115th Congress, but the judicial branch’s direction is easier to predict. Mrs. Clinton has promised to subject all Supreme Court nominees to multiple ideological litmus tests. Mrs. Clinton’s ideologically lockstep replacement of Antonin Scalia’s crucial fifth vote (and other judicial vacancies) would yield a solid five-vote majority to approve all of her executive excesses.
Liberal law professor Erwin Chemerinsky predicts a progressive sweep across practically every social and regulatory issue.
A President Clinton would therefore both expand aggressive use of the Justice, Treasury, and other departments beyond ordering boys into girls’ showers, and she would likely have the Supreme Court’s imprimatur to reinforce corporate, media and academic support.
If Donald Trump were elected and attempted executive overreaches, he would have far less structural support. He recently released a specific list of 11 judges as an indicator of his Supreme Court nominations.
While he isn’t guaranteeing he will pick from the list, it seems likely he would do so at least to replace Scalia. Court watchers on both the Right and the Left have deemed Trump’s picks staunchly conservative in the mold of Justices Thomas and Alito. But conservative originalists fear executive overreach more, not less, than judicial progressives.
Thus the Supreme Court could end up unanimously opposing a President Trump’s potential overreaches, with the liberal wing doing so on the merits and the conservative justices voting as a matter of constitutional authority.
Trump’s critics suspect that he may ignore the Court in the fashion of President Jackson’s apocryphal quip that “John Marshall has made his decision, now let him enforce it.” Mrs. Clinton would not need to walk out on that limb. Her agency enforcement troops would, likely as not, receive fawning judicial approval.
A court imprimatur would be no small boon for Mrs. Clinton’s executive aggression. The court’s pronouncements provide significant public relations cover to reinforce the liberal media’s narrative. The New York Times declared in 1973 that the abortion right invented in Roe v. Wade should be a “final resolution” to the abortion debate, and the same drumbeat would sustain all of the Clinton administration’s misuses of power.
Court rulings also either remind government officials of their commitment to the rule of law despite what their president is telling them, or they give officials a rationalization for going along with an executive order that violates the Constitution and federal statutes.
While Robert Kagan fears “fascism” from the Trump Justice Department, Douthat concedes that “Trump would not be an American Mussolini” thanks to the separation of powers. Mrs. Clinton is likewise no fascist, but her executive hammer would be no less unilateral, extra-legal or self-serving. The difference is that her actions would officially negate the American rule of law through the courts, instead of constantly fighting against it.
Matt Bowman is an attorney practicing constitutional law in Washington D.C.Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
