Rebecca Ingber on Lawfare discusses the long term consequences of a Trump Administration in which the bureaucracy may or may not work as an emergency brake on a President careless of safeguards. Noting that, at best, it will be an imperfect mechanism, she next addresses the problems facing the President following Trump in the arena of power accruing to the the Presidency:
… there is a catch-22 for presidents rising to power on promises to rein in the overreach of a predecessor on both process and substance. Remediating process fouls may make it more difficult to effect quick substantive change. Continuing to skirt the process norms of the executive branch in order to impose one’s substantive views entrenches the process errors. And yet a post-Trump president may well need to tackle both. For future presidential administrations, there are potential avenues for dialing back prior claims to power while still employing an inclusive decision-making process. Dialing back substantive claims to power of a predecessor are most effectively done immediately, upon taking office. For matters that require determining and implementing new legal positions or policies, decision-making should be channeled into processes that can examine problems ex ante and in a fashion removed from the pressures of addressing the facts on the ground inherited from the last administration, even if those pressures exist and are ongoing (i.e. forward-looking task forces to address best practices or legal positions, versus defensive litigation geared toward protecting power to defend actions already taken).
More urgently, for presidential administrations hoping to entrench internal constraints on future presidents: lay out your legal theories for action as clearly as you can; rest them on a specific theory and not in-the-alternative options; have the authors sign their legal positions to ensure accountability; publish them to ensure transparency; and include written redlines so there can be no confusion about the existence of outer legal limits on the president’s authority. The Obama Administration’s speeches, released legal memoranda, briefs, and the commendable recently released “Report on the Legal and Policy Frameworks Guiding the U.S. Use of Military Force” have over time checked several of these boxes on key national security issues.
I think it’ll be incumbent on the media and electorate that one of the discussion topics of the next campaign must be identification of power accrual and a discussion of whether this is detrimental to the Republic or not. Note this is different from the question of whether it’s good for the Presidency; the two are fundamentally different, as the Republic exists to promote the welfare of the citizenry, while the Presidency, though having a valid role in the Republic’s goal, is in itself an anti-democratic institution; only in relation to the limits set by the other two branches of government is it a tolerable institution, Therefore, arguing that limiting its power limits its efficacy is irrelevant; only in the context of the Republic as a whole can such arguments be properly judged as to their legitimacy, in terms of the dangers as well as the advantages that more power in the Presidency will cause.
I wonder if substantial portions of the electorate are up for such a discussion.
