Below is my Sunday column in the Washington Post on Donald Trump’s proposal to ban Muslims from entry into the United States. Trump’s rhetoric has shocked many in his promises to unilaterally force sweeping changes regardless of Congress. Yet, Trump’s criticism of Congress and pledge to go it alone should be vaguely familiar for many. Both Obama and Trump advocate to use unilateral powers to change the immigration laws as a rejection of a “do nothing” Congress. Faced with opposition in Congress, President Obama insisted that he would order many of the very changes rejected by the legislative branch. Despite my agreement with President Obama on many of his policies, it is a dangerous and destabilizing legacy or a system based on the separation of powers. While these men may differ on their policy choices, the powers are the same. President Obama has been asserting many the powers referenced by Trump despite constitutional objections and losses in court like the Canning decision. For this reason, the objections from Obama supporters may ring a bit hollow for Trump supporters. While Trump may have coined “You’re fired” as an entertainment tag line, it was President Obama who fashioned it into a political doctrine in his rejection of Congress. This has been a role that Trump has spent years cultivating on reality shows. It is reality TV meets realpolitick. Below is the column.
Donald Trump has spent years cultivating a reputation as someone who won’t accept “no” for an answer, and he’s made clear that’s exactly the sort of president he would be. Never mind if there’s bipartisan opposition to barring Muslims from entering the United States or to building a wall along the Mexican border (and making Mexico pay for it). Trump doesn’t see a need to defer to Congress, which he dismisses as “grossly incompetent” and “pathetically weak.” Instead, he heralds instances of past presidents acting unilaterally, particularly Franklin D. Roosevelt’s executive order that led to Japanese American internment and Dwight Eisenhower’s deportation of millions under “Operation Wetback.”
These comments have understandably energized the Stop Trump movement. White House press secretary Josh Earnest said Trump’s proposal for barring Muslims “disqualifies him” from office. Hillary Clinton aide Huma Abedin rallied supporters with the message, “We have to be ready to stop him.”
But if Democrats are alarmed by this glimpse into a Trump administration, they are in part to blame. They have supported President Obama’s claims of unchecked authority in a variety of areas, particularly immigration. And the Obama model will be attractive to successors who, although they may have a different agenda, have the same appetite for unilateral decisions.
Obama has used his willingness to go it alone as a rallying cry for Democrats. “We can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will,” he told supporters in 2011. In his 2013 State of the Union address, his similar line, “If Congress won’t act soon to protect future generations, I will,” was met with ecstatic applause from the Democratic side of the chamber.
Of course, the expansion of presidential authority did not start with Obama, and his predecessor George W. Bush was widely criticized (including by me) for seeking unilateral powers after the 9/11 attacks. Yet Obama has been particularly aggressive in his unilateral actions. From health care to immigration to the environment, he has set out to order changes long refused by Congress. Thrilled by those changes, supporters have ignored the obvious danger that they could be planting a self-defeating precedent if the next president proves to be a Cruz rather than a Clinton. While the policies may not carry over to the next president, the powers will.
Consider some of the positions expressed in the GOP primary race:
• Ben Carson dismisses the science on climate change, saying the real worry would be if temperatures stopped going up and down. A President Carson could order the same kind of sweeping regulatory changes that Obama has sought for power plants and other sources of greenhouse gas emissions — only in the opposite direction.
• Former Arkansas governor Mike Huckabee has pledged to recognize personhood beginning at conception. In a Huckabee administration, while subject to Supreme Court restrictions, a host of federal laws could be reinterpreted to treat the unborn as people. Huckabee’s view differs from Congress’s, but so did Obama’s when he parted ways with Congress on the urgency of climate change.
• Sen. Ted Cruz wants to repeal the corporate income tax. Just as the Obama administration claimed discretion to delay enforcement of the health-care law’s employer mandate and to defer the deportation of some undocumented immigrants, President Cruz might be inclined to use his executive discretion to extend, perhaps indefinitely, the deadline for corporate income tax payments. Likewise, Cruz could order prosecutors not to charge, or to reduce the charges associated with, certain corporate offenses, as Obama did with some nonviolent drug crimes.
• Various candidates have denounced what they see as biased treatment of religious groups and individuals on college campuses. The next president might want to order the Department of Education to strip away due process protections for those accused of anti-religious speech, just as the Obama administration did in cases of alleged sexual harassment or assault — putting federal education funding at risk for any university that defies the White House.
• Some of the presidential candidates reject evolution and support the teaching of creationism in schools. The new president could alter national science curriculum standards and waive requirements on the teaching of science. After all, the Obama administration offered waivers to school districts that didn’t meet state-defined goals for math and reading proficiency, in direct contradiction of No Child Left Behind.
• Trump has insisted that killing terrorists is not enough. He told Fox News that “you have to take out their families .” While many people were horrified, Trump is simply adding another target package to a program formalized by Obama. The current administration has asserted the authority to kill even U.S. citizens, anywhere, at any time, if it deems them to be imminent threats to national security.
• Most of the candidates oppose the Affordable Care Act. Assuming that Democrats have enough votes in Congress to prevent a repeal, the next president might be tempted to refuse to defend the law against court challenges, under the view that the law is unconstitutional. The Obama administration did that with the Defense of Marriage Act, announcing in 2011 that the Justice Department would no longer defend the statute.
• Most of the contenders have criticized increasing regulation and bureaucratic costs for businesses. The next president could order the delay of any new rules on workplace safety, wages or discrimination. After all, the Obama administration treated deadlines specified in the Affordable Care Act as little more than aspirational. Alternatively, the next administration could simply relieve businesses of such statutory obligations. Obama’s administration told companies that when imposing layoffs connected to federal budget cuts known as sequestration, they could ignore the 60-day notice requirement in place since the Worker Adjustment and Retraining Notification Act was passed in 1988.
• Virtually all of the candidates have called for the repeal or weakening of Dodd-Frank, the financial reform law designed to curb abuses by big banks. The next president might be inclined to declare that banks are not required to fulfill certain obligations under the law. Consider the Obama administration’s treatment of the Temporary Assistance for Needy Families program. TANF was signed by President Bill Clinton to condition receipt of welfare benefits on work (or preparing for work). The Obama administration, however, told states that it would waive that requirement .
The problem with allowing a president to become a government unto himself is that you cannot guarantee who the next president might be. Now the leading Republican candidate is someone who views most of his creations in eponymous terms — as reflected by 20-foot letters spelling out his name on top of his hotels. He is the perfect uber personality to fit our uber presidency.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.