Michael D. Tanner
Some 20 years ago, Paul Begala, then an adviser to President Bill Clinton, expressed his marvel at the ability of the president to act unilaterally. “Stroke of the pen. Law of the land. Kinda cool.”
And, of course, we all remember President Obama’s assertion that he could bypass Congress as long as he had “a pen and a phone.” Obama used that pen and phone not only to implement DACA but to rewrite parts of the Affordable Care Act, to circumvent the constitutional requirement that Congress approve treaties, and to target US citizens with drone strikes. In fact, DACA may turn out to be the most defensible of Obama’s presidential power grabs.
For decades, Congress has been abdicating its role in our constitutional structure, ceding more and more power to a monarchical presidency.
In between, President George W. Bush declared unilateral presidential authority to “nullify statutes and court judgments” by refusing to enforce them, acting on the basis of his independent legal judgment. Perhaps most notoriously, when Congress passed an amendment to an emergency defense-appropriations bill prohibiting torture during the interrogation of suspected terrorists, President Bush issued a signed statement asserting that he was not bound by it. And while the War on Terror was the biggest impetus for Bush’s accretion of presidential power, he also asserted the unilateral power to act on issues ranging from Medicare to whistleblower protections to affirmative action.
Now, we have President Trump claiming the authority to reallocate funds that Congress had (a) specifically appropriated for other purposes, and (b) specifically refused to appropriate for the uses the president wants.
The legal arguments around Trump’s declaration are unclear. The president’s actions certainly appear to contravene Article I, Section 9 of the Constitution, which says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law …” On the other hand, the National Emergencies Act does give the president a great deal of unilateral discretion. Other presidents have used it at least 59 times to trample on congressional power (though most often for imposing sanctions on foreign companies or individuals, or wartime military projects).
Trump’s use of the statute might be more egregious than most, but it’s neither completely unprecedented nor without foundation. Congress may actually have voluntarily surrendered its authority. And therein lies the bigger problem. For decades, Congress has been abdicating its role in our constitutional structure, ceding more and more power to a monarchical presidency. The Founding Fathers, justifiably wary of a king, intended the legislative branch to be preeminent. As Article I says, “All legislative powers herein granted shall be vested in a Congress of the United States.”
The job of the presidency is to see that the laws that Congress has passed “are faithfully executed.” And as Chief Justice Jackson wrote in the 1952 case of Youngstown Sheet & Tube Company v. Sawyer, “In the framework of our Constitution, the President’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker . . . The Constitution is neither silent nor equivocal about who shall make laws which the president is to execute.”
But increasingly, that’s been flipped on its head, with the complicity of presidents of both parties and of Congress itself.
It’s easy to understand why presidents would want to try to seize more power. But it’s less clear why Congress would so cravenly surrender its prerogatives — if not cowardice. After all, if Congress has no responsibility for anything, congressmen can’t be held responsible for anything that voters might not like.
Congress might grumble when a president unilaterally imposes tariffs, for example. But grumble is all that it will do. When Congress does actually pass legislation, it still leaves the real authority to the president and executive agencies. All too often, Congress simply expresses its desire for vague (and popular) goals like “clean air,” then leaves the actual hard choices to others.
Even on matters as basic as war and peace, Congress is AWOL. Article I, Section 8, Clause 11 of the Constitution gives Congress the exclusive power to declare war. Yet, US troops are currently fighting in more than a dozen countries without no such declaration from Congress. This Congress refuses to even debate updating an Authorization for the Use of Force that was intended for Afghanistan 18 years ago and is now used to justify interventions from Somalia to the Philippines.
We’ve reached the point where presidents can go to war, appropriate funds, impose revenue measures, and far more, all without Congressional approval. As James Madison warned in Federalist No. 48, “An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by others.”
Congress could restore those checks and restraints by reclaiming its authority. That should start by disapproving Trump’s power grab. It’s telling, though, that no one really believes that they will do this.
That’s not so cool after all.Michael Tanner is a senior fellow at the Cato Institute and the author of The Inclusive Economy: How to Bring Wealth to America’s Poor.
Is it any wonder that American news consumers are at the end of their ropes of patience with the “mainstream media”?
Three weeks ago, when I first documented troubling questions, contradictions and doubts about Trump-hating, attention-craving actor Jussie Smollett’s absurd hate crime claims, few in the “professional” journalism herd paid heed. Now, with a grand jury investigation on the horizon, everyone’s a Johnny-come-lately debunker.
And everyone’s making excuses: How could we have known? Why would anyone lie about racism? What could have possibly prepared us for such a scandalous swindle?
I’m especially looking at you, Robin Roberts. You and ABC’s “Good Morning America” willingly played public relations agents for Smollett last week while his story was already falling apart and he refused to be fully transparent with investigators. Now, you defend yourselves by hiding behind a veil of ignorance about hate crimes hoaxes.
Listen and learn, addled enablers of fraud. Fake Noose is a sick phenomenon that has run rampant across the country unchecked. I’ve chronicled the self-victimization pathology in my books, columns and blog posts for years:
—Columbia University, 2007. Remember black psychology professor Madonna Constantine? She made the rounds on none other than ABC’s “Good Morning America,” claiming she found a “degrading” noose (made of hand-tied twine) hanging from her office door. Constantine led fist-waving protests, decried “systematic racism,” and prompted a nationwide uproar, as I reported at the time in the New York Post. Things didn’t add up when Columbia initially blocked investigators from obtaining 56 hours of surveillance video. No culprits could be found on the militantly progressive campus obsessed with diversity and multiculturalism. It turned out that Constantine was desperately trying to distract from a brewing internal probe of her serial plagiarism, for which she was eventually fired. The hate crime probe hit a dead end and Constantine faced no criminal charges over the Fake Noose incident.
—Baltimore Fire Department, 2007. Another manufactured outrage erupted when black firefighter-paramedic apprentice Donald Maynard claimed he found a knotted rope and threatening note with a noose drawing on it at his stationhouse. A federal civil rights investigation ensued and the NAACP cried racism — until Maynard confessed to the noose nonsense amid a department-wide cheating scandal. A top official revealed that Maynard admitted “conducting a scheme meant to create the perception that members within our department were acting in a discriminatory and unprofessional manner.” Maynard faced no criminal charges over the Fake Noose incident.
—University of Delaware, 2015. Black Lives Matter agitators and campus activists triggered a full alert when a student spotted a “racist display” of three “noose-like objects” hanging from trees. The UD president called it “deplorable;” protesters wept that they were not being taken seriously. After investigating, police discovered the “nooses” were metal “remnants of paper lanterns” hung as decorations during an alumni weekend celebration.
—Salisbury State University, 2016. Students, faculty and administrators were horrified when a stick figure hanging from a noose on a whiteboard was discovered at the school’s library. The N-word and hashtag #WhitePower also appeared in the menacing graffiti. Campus authorities immediately launched an investigation, which exposed two black students as the perpetrators. Prosecutors declined to file criminal charges against the Fake Noosers.
—Kansas State University, 2017. A paroxysm of protest struck K-State after someone reported a noose hanging from a tree on campus. Black students lambasted authorities for not acting quickly enough. They stoked anger online with the hashtag #DontLeaveUsHanging and demanded increased security. But the “noose” was made of cut pieces of nylon parachute cord, which police believed had been discarded by someone who “may have simply been practicing tying different kinds of knots.”
—Michigan State University, 2017. When a student reported a noose hanging outside her dorm room, MSU administrators went into full freakout mode over the racial incident. Cops and the Office of Institutional Equity were immediately notified. “A noose is a symbol of intimidation and threat that has a horrendous history in America,” the university president bemoaned. But it turned out the “noose” was a “packaged leather shoelace” that someone had dropped accidentally.
—Smithsonian museums, 2017. NPR called the discovery of “nooses” lying on the grounds of two Smithsonian Institute museums the “latest in a string of hate incidents” after Trump’s election. The African-American museum director called them a “reminder of America’s dark history.” But the museums refused to release surveillance video and my public records request filed last November yielded zero corroboration of any hate crime. The Washington Post, New York Times and ABC’s “Good Morning America,” which all splashed the story front and center, have yet to follow up.
—Mississippi State Capitol, 2018. ABC, CBS, CNN and Yahoo were among the media outlets that blared headlines about seven nooses and “hate signs” found hanging in trees by the capitol building before a special runoff election for U.S. Senate. The stories created an unmistakable impression that the nooses were left by GOP racists intending to intimidate black voters. In truth, the nooses were a publicity stunt perpetrated by Democrats.
In the wake of Smollett’s folly, media sensationalists bluster that there’s no way they could have known they were being strung along. Thanks for the valuable admission, elite news professionals, that you are not only dumb and blind but incompetent to boot. It doesn’t take a fancy journalism degree to learn from the long, sordid history of Fake Noose:
When you’ve seen one social justice huckster, you’ve seen ’em all.