Tuesday, February 18, 2020

How Does Political Argument Work When the President Does Whatever He Wants?

by Neil H. Buchanan

Donald Trump repeats himself quite often, and one of his favorite claims is that he has an "absolute right" to do whatever it is that he currently wants to do.  Most recently, for example, he claimed to have the absolute right to tell the Department of Justice what to do in the Roger Stone case (even though he denies having intervened).  He thinks that Article II of the Constitution means that "I have the right to do whatever I want as president," which would be funny if it were not so frightening.

This means that Trump is accelerating down the road to autocracy and that "Trump and his supporters are effectively arguing for an elective monarchy" -- although the "elective" part clearly only includes the presidential election of 2016, given that the Democrats' 2018 blowout win somehow did not reflect the people's will, in Trump's eyes.  Only some elections count, apparently.  Certainly, 2020 will only count for Trump is he is declared the winner -- and even then, if he ends up with another Electoral College win but loses the popular vote, he will surely declare those votes illegitimate (again).

Although Trump and his enablers continue to say that he can do anything he wants, however, they still sometimes attempt to say that what he is doing is no different from his predecessors' actions.  Barack Obama issued executive orders?  That must mean that Trump can issue as many executive orders as he wants, on whatever topic, based on any nonsensical legal theory that his attorney general can concoct.  Other presidents have pardoned people, or fired employees?  That must mean that there can be no limits to Trump's pardons and firings!

The old saying that "if you're explaining, you're losing" distilled the idea that American politics (and probably politics everywhere and at all times) is allergic to nuance.  I actually had to look up the substance of former Democratic presidential nominee John Kerry's infamous quote that he was "for it, until he was against it," even though I remembered his unfortunate wording almost verbatim.  It turns out that he was completely consistent and honest, having said that he voted for $87 billion in Iraq War funding when it would have been financed by reducing the Bush tax cuts but then voted against a final bill that stripped out that funding mechanism.  He was right, but he was pummeled nonetheless.

But if nuance was a tough sell before Trump, is it impossible now?  And if it is impossible, is that somehow liberating not just for Trump but for everyone?

I began to think about these questions after reading a comment from a Dorf on Law reader who contributes with some frequency to the comment board.  In response to a column that discussed Trump's increasingly unhinged abuse of powers, this reader noted: "I recall there were posts that discussed the rationale for spending beyond the debt limit, if need be...so that is all that T would need to hear- on second thought he already thinks the country is his sole proprietorship and anything he wants...goes."

This is a reference to some scholarly work that Professor Dorf and I published during the Obama years regarding the federal debt ceiling statute.  My working title for this post was: "The Buchanan-Dorf Theory Does Not Support Trump’s Lawlessness."  That true statement, in turn, provides an opening to explore just how different Trump's abuses of power have become from nearly everything that has gone before.

For those readers who were not frequenting Dorf on Law or Verdict in 2011-16, and for those who have blissfully forgotten all about the debt ceiling controversies, I provide here a brief reminder.  (Admittedly, this feels in some sense like an acid flashback, given how traumatic the Republicans' budget brinksmanship had become during that era.)  The bottom line is that our argument was not in any way an "anything the president wants, he gets" theory of the separation of powers.  It was, in fact, the exact opposite of that -- a paean to the limits of presidential power, even when Congress completely screws up.

The basics: Congress passes appropriations laws and revenue laws, i.e., it spends and it taxes.  More accurately, it authorizes the executive branch to spend and to tax.  Even more accurately, it tells the president to "spend exactly this amount, no more and no less" and to "collect taxes under these rules, no more and no less."  Yes, there are reasons that the real-world numbers will differ from the ideal, such as the gap between taxes owed and taxes paid due to tax evasion.  But that is a matter of choice (and funding) regarding enforcement efforts, not license to the president to ignore the law itself.

What about the debt limit?  That statute purports to prevent the government from borrowing more in the aggregate than some arbitrary number set by Congress.  Thus, if gross federal debt is $11 trillion and the debt ceiling is also $11 trillion, that statute seems to prevent the president from borrowing any additional money on the financial markets.

But what if the spending and taxing laws combine to require more borrowing?  For example, what if Congress has said that the president must spend another $100 billion this week but only $60 billion will be collected in tax revenue?  How to make up the $40 billion difference?  The answer is that the president must "set aside" the debt ceiling law.  Wait ... what?!  The president is empowered to neutralize a law on his own?  How is that not Trumpian?

The answer begins with the observation that, unlike everything that Trump is doing, Obama would not have been able -- as a simple matter of logic (and arithmetic) -- to obey all of the laws that Congress had passed.  The Buchanan-Dorf theory was an attempt to figure out whether there were any principles on which a conscientious president (!!) could rely in deciding which law to set aside for the purpose of faithfully executing the other laws.

Our answer was that the president -- again, even when Congress has given him what could be viewed as a blank check ("You're going to violate some law, so why not go with whatever one you want?" -- is obligated to choose the least aggressive path.  Deciding to cancel duly-appropriated spending or to collect unauthorized taxes would be much more legislature-like than borrowing enough to honor the spending and tax laws (and no more), and if Congress did not like it, future legislation could undo the extra borrowing that the president would have been forced to undertake.

Even at the time, the nuance of this argument was lost on many people.  We were invited to speak at a conference to defend the position that "the president can increase the debt ceiling unilaterally," and when we told the organizer that we did not take that position, his response was, "Yeah, but that's what it sounds like."  An interviewer on Boston's NPR station (that is, a media outlet least likely to have a problem with nuance) repeatedly asked Professor Dorf why it would be acceptable for Obama to "blow past" the debt ceiling.

Again, we argued that the president's constitutionally required action was specifically constrained by the law.  Even when laws conflict, the president must act in as limited a fashion as possible.  He would not "blow past" anything, because Congress's combination of spending and taxing decisions had made it necessary for the executive to borrow a specific (finite) amount of money in carrying out Congress's orders.  This is the opposite of an imperial presidency.

The political system's allergy to nuance is surely what caused Obama and his allies to scoff at our approach.  I continue to believe that it would have been possible to persuade people that "the Republicans in Congress told me to spend money on these important things, and I will follow their orders even though they have tried to set an impeachment trap," but for whatever reason, the Obama people were not willing to go there.

Suppose that they had accepted our argument, however.  Suppose further that Republicans had then impeached Obama for failing to faithfully execute the debt ceiling statute.  He would not have been convicted by the Senate, mostly for partisan reasons but also because a trial would have actually allowed his lawyers to ask: "Once he had been given no choice by Congress but to violate at least one of these internally conflicting laws, what would you have had him do?"

More to the current point, what if that had created an actual precedent of a high-profile political battle in which the president had "gotten away with disobeying the law"?  Ignoring the butterfly's-wings problem that this would have meant that Trump never would have become president, is it true (per our reader's formulation) that "that is all that T would need to hear" and he would be off to the races?

Certainly, Trump lacks nuance.  (I have written many Captain Obvious-like sentences in my life, but that might be the most trivially true assertion of them all.)  So one could easily imagine him saying, "You know, Obama wanted to run up the debt, so he just ignored the law and borrowed trillions."  His true believers would nod their heads and cheer, but so what?

There are liberals who somehow think it wise to say, for example, that "we have to acknowledge that Democrats started the judicial wars by taking down Bork."  Or who decide to play the false equivalence game in a vain attempt to coax Republicans to meet them in the middle.  Some of them might indeed say that Obama inappropriately "blew past" the debt ceiling, somehow viewing themselves as quite wise by tut-tutting about supposedly excessive government debt.

Again, nuance was never the political system's strong suit.  But saying that, for example, "Obama didn't prosecute the Dreamers, so all bets are off on anything Trump does" would never fly, even with the mushy middle-ground types.  Slippery slopes are slippery only when there are no limiting principles.  I might not have agreed with many things that Obama did, but there were always limiting principles.

And the Buchanan-Dorf theory was nothing but a limiting principle.  It asked what a president confronted with a circle that cannot be squared can and must do.  It did not give anyone license to go out looking for laws to ignore.

Even so, I have no doubt that Trump would say, had this hypothetical debt ceiling situation actually played out, that it means that he now has total and complete power.  But how would that be different from what he is doing?  Or, as the Dorf on Law reader put it, "on second thought he already thinks the country is his sole proprietorship and anything he wants...goes."

The perversely good news it that Trump has done what all autocrats do, which is to give people "freedom from choice."  (Thanks, Devo.). More precisely, by being so dictatorial, Trump makes it unnecessary to worry that an argument will be taken out of context in a way that will allow him to justify something that he might not otherwise have done.

Trump has shown that he believes that he has an absolute right to do anything at all.  If he misapplies historical examples to justify it, that is mere window dressing.  And he is less and less inclined even to have windows, much less to worry about how they are dressed.  Freedom!

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