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Mr.Trump and the Congress

A lesson from North Carolina

December 2016

Abstract:
The North Carolina legislature, by an egregious act, has given us a potential model for the relationship between president-to-be Mr.Trump and the Congress. The Republican NC legislature's last-minute restrictions on the power of the incoming Democratic governor ought now to be copied as restrictions on the power of the incoming president.
It's no secret that many members of Congress, in both parties, are worried – some nearly panicked – over the upcoming administration of Donald Trump, now less than a month away. Over the past eighty years or so, since the presidency of Franklin Roosevelt, Congress has been giddily giving the president new and broader powers. Every new law has carried with it new authority for the chief executive. The result is a welter of federal departments under the direct control of the president, with power to make regulations with the force of federal law – the corpus known as administrative law – all without the involvement of Congress. The vast amount of such law effectively made by the president now dwarfs the law actually made by the legislative branch. And the effect of this administrative law is in many cases more closely felt and more intrusive and problematic for many Americans. The bottom line is that the president now has more power than ever, for better or for worse. This would have been a problem for the nation's founders, who intentionally restricted the power of the president to preclude the rise of tyrants.

So is Mr.Trump a potential tyrant, or are there sufficient safeguards against presidential abuse of power? Congress may want to consider the precedent of the North Carolina legislature when they were faced by a related issue. In North Carolina at this moment, the Republican party controls both houses of the legislature and holds the governorship. But in the general election of last month, the sitting Republican governor lost his job to the Democratic challenger. In a month he will be gone. In response to this dastardly deed by the voters, the legislature set out to strip the incoming Democratic governor of every power they could think of. The laws were rushed through without debate, and the outgoing governor signed them on the spot. Among these insults to the incoming governor are a reduction by two thirds in the number of patronage hires he may make, and a new requirement that the state senate must approve all cabinet selections. Now, I'm not going to criticize these new laws on their merits: perhaps the state is better off with fewer patronage jobs, and perhaps cabinet appointments should go to the senate for approval. But as political acts these were brilliantly nasty.

So are there lessons for Congress in this bit of NC trickery? The difference is, of course, that Congress is and will be under the control of the incoming president's party. But even some Republicans are worried about the tendency of Mr.Trump – the veritable poster child for a loose cannon – to think from the hip. Perhaps it's time for the GOP leaders to rethink and restrict some of the powers Congress has given the president over the past few decades. They'll have to hurry and get it done in the first weeks of January, counting on President Obama's interest in limiting Mr.Trump's power. After that there's no chance of getting a presidential signature. What are some good candidate authorities that Congress should consider limiting?

1. The appointment power is an obvious choice. Congress can (just like the NC legislature) broaden the category of presidential appointments that require consent by the Senate. Expanding this to include senior White House staff would be a useful action, in light of some of the names that Mr.Trump has indicated he intends to hire in those capacities.

2. Even more pressing is clarifying the limits of the current ISIS-related war powers act, as well as the roles of the president and Congress in the employment of military forces. It must be made clear in law that any deployment of US military forces with the intent of engaging in combat must have the prior approval of Congress.

3. In light of the inter-branch dispute brought about by President Obama's 2016 nuclear development "deal" with Iran, Congress must clarify the meaning of "treaty" for the purpose of Article II.2.2 of the Constitution (thus requiring Senate concurrence). The law should require that any agreement between the US government and a foreign nation that commits US public resources to be appropriated by Congress, or commits the US to a policy position not already approved by Congress, is considered a treaty under Article II.2.2 of the US Constitution.

4. President Obama's very active use of Executive Orders – which President Trump can be expected to follow – suggests that Congress would do well to define the limits of this tool, along with an efficient path to resolution of conflicts concerning their use.

What's the chance that the new Congress will act quickly, as they ought to, in January 2017 to ensure their role as a safety valve against presidential decisions? Unfortunately not great, but these recommendations reflect the kind of changes that Congress has long needed to make, to better define the president's role as de facto law maker. While the Executive department's role in establishing regulations is appropriate, Congress has been slow to clarify the limits of executive power, to hinder the development of tyranny that the Constitution was intended to prevent. With the coming of a president who seems to have demonstrated his love of power for its own sake, Congress has every reason to act quickly to avert the dangers inherent in that character flaw being exercised untrammeled from the White House.

© H. Paul Lillebo

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