It is clear from listening to the case made in the Senate by President Trump’s lawyers that their defense of his conduct relies on a highly expansive assertion of executive power. Their theory of an uber-powerful president is constitutionally bogus and, worse, quite dangerous.
To be clear, I write this as a particularly avid disciple of James Madison’s distrust of highly centralized power wherever it occurs. “It will not be denied,” he wrote, “that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it.”
The American presidency is a uniquely powerful sort of national executive, much more so than the prime minister in a parliamentary system. As the national government has grown so much more massive and pervasive than ever envisioned by the founders, it should be obvious that the dangers of concentrated power are particularly great when in the hands of an unfettered president of such a big government in such a big country.
It is for that reason, Madison explained repeatedly in the Federalist Papers, that rather than setting up a pure “separation” of powers, the Constitution instead partially separated and partially blended almost every power it detailed. That way, no single branch of government would have the sort of exclusive control on any one power that would allow it to abuse that power without pushback or repercussion.
In that light, it is instructive that even the single foremost founding advocate of a strong executive, Alexander Hamilton, wrote that Americans should beware of entrusting too much power to presidents even in foreign affairs.
He wrote: “An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents.”
Read that again. This is exactly what President Trump is accused of doing: seeking his own aggrandizement with the aid of a foreign power.
Hamilton’s very next sentences continued this thought process: “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as to those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”
In sum and contrary to the arguments of Trump’s legal team: The Constitution puts limits on presidential powers even in matters of foreign relations.
In the case of Trump’s delay of statutorily mandated military assistance to Ukraine, a delay about which he wrongly refused to inform the Senate, one overcome only after the whistle was blown against him and which even then resulted in a failure to distribute $35 million by the legal deadline, Trump actually transgressed upon the single most important authority of Congress, namely the power of the purse. Therefore, he didn’t merely fail to abide by limits on a power assigned largely but not exclusively to him. Instead, he directly contravened a power assigned primarily to Congress.
Now, let’s move to practicalities. These Trumpian transgressions are not merely academic matters or abstruse political theory. A president who is not held to account, one with control of the vast bureaucratic state, power over the Justice Department and the IRS, and the too-infrequently-restricted authority over the armed forces, is a president who can install his own “deep state” agents, with impunity, to harass political enemies at will.
Conservatives willing to cede such massive power to Trump will suffer when the next Barack Obama takes office with a free hand and an iron fist.
