As Professor Koh put it: "In foreign affairs, even the longtime senator Joe Biden -- who widely proclaims his love of the Senate -- now operates almost entirely by executive fiat," including a reliance on "classified policy memoranda, with minimal congressional oversight." Overall, in fact, Biden issued more executive orders than any president since Richard Nixon. Though Biden wisely relied upon an interagency group of lawyers to advise him on national security decisions, following their advice, he issued "nonbinding political agreements, memoranda of understanding, joint communiques, and occasionally 'executive agreements plus,'" just as Obama had done on the Paris climate accords and the Iran nuclear deal, relying on "preexisting legislative frameworks" rather than new Congressional authorizations. When it came to the war in Ukraine, Biden leaned heavily on "the coordinated use of sanctions, enhanced almost weekly post-invasion." Most of those sanctions were set, as Koh also points out, "by executive orders and regulatory decrees," rather than in consultation with Congress.
Our Future
A second Trump presidency will undoubtedly take unilateral presidential powers to a new level. After all, he already indicated that he might withdraw the U.S. from NATO and end support for Ukraine. Nor is Trump likely to be deterred by Congress. Reporting on Project 2025, the Heritage Foundation's nearly 1,000-page prescription for a second Trump presidency, written primarily by former office holders in the first Trump administration, New York Times reporters Jonathan Swan, Charlie Savage, and Maggie Haberman reported that Trump "and his associates" plan to "increase the president's authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House."
In particular, Project 2025's stance on nuclear weapons is a reminder of just how dangerous a president who refused to be restrained by law or precedent will be. After all, in his first term in office, Trump unilaterally pulled out of the Iran nuclear deal and reimposed sanctions on that country, leading its leaders to increase its nuclear capacity. Meanwhile, the march toward nuclear confrontation has accelerated worldwide. In response, Project 2025 argues for ramping up America's nuclear arsenal yet more. "[T]he United States manifestly needs to modernize, adapt, and expand its nuclear arsenal," the treatise declared, in order to "deter Russia and China simultaneously," adding that the U.S. needs to "develop a nuclear arsenal with the size, sophistication, and tailoring -- including new capabilities at the theater level -- to ensure that there is no circumstance in which America is exposed to serious nuclear coercion."
Consider all of that a frightening vision of our now all-too-imminent future: a president freed from the restraints of the constitution, unchecked by Congress or the courts -- or by his cabinet advisors. In the words of MSNBC's Ali Velshi, Project 2025 has set the stage for Donald Trump to be the very opposite of what this country's founders intended, "a king," surrounded not by "groups of qualified experts" but by "unblinking yes-men."
(Dis)Trust in the Presidency
The growing power of the presidency has been taking place in plain view, as unilateral powers have accumulated decade after decade in the Oval Office, while the recent choice of president has also become a grim choice about the nature and powers of the presidency itself. Notably, the rise in executive powers has coincided with a creeping distrust of government in this country. Since the early 1960s, when nearly 80% of Americans said they trusted government "most of the time," the public's faith in this country's federal government hovers at just over 20%, according to the Pew Research Center. And no wonder. When the office of the president refuses to accept the checks and balances that underlie the democratic system, the country's trust in negotiated, reasonable, and restrained outcomes understandably falls away.
Sadly, in this era, the benefits of restoring the very notion of checks and balances that birthed the nation have come to seem ever more like a quaint dream.
Copyright 2024 Karen J. Greenberg
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