Can he really do that? Yes, he probably can — because Congress let him

Can he really do that? Yes, he probably can — because Congress let him
© Getty Images

In the spring of 1793, war was about to break out between our erstwhile ally, France, and England, a country with which we shared both language and a heritage. President Washington’s Cabinet members, except Secretary of State Thomas Jefferson, wanted the United States to issue a declaration of neutrality and wanted Washington to proclaim it. Jefferson argued that since the Constitution conferred the power to declare war to Congress, it ought to be Congress that declared neutrality. Jefferson was outvoted and the president, in his first term, acquired a new power not anticipated by the authors of the Constitution.

We can look upon that episode as the beginning of a process that has led to the aggressive assertion of presidential powers by the present occupant of the White House. These powers are breathtaking in their sweep, ranging from a 2017 proclamation banning the entry into the United States of citizens from seven majority-Muslim countries, to a recent executive order ordering the Commerce Department to petition the Federal Communications Commission to “clarify” provisions of a regulation that shields social media platforms from forms of liability for the content posted in their sites.

Included in these audacious assertions of presidential power is the February 2019 declaration of a national state of emergency by President TrumpDonald TrumpGuardian Angels founder Curtis Sliwa wins GOP primary in NYC mayor's race Garland dismisses broad review of politicization of DOJ under Trump Schumer vows next steps after 'ridiculous,' 'awful' GOP election bill filibuster MORE in order to get his hands on billions of dollars that Congress explicitly refused to give him to complete the border wall with Mexico. A move by Congress to block the funds was certain to be vetoed by Trump, and a veto override would be unlikely. After all of these power grabs, a common question posed by Americans is: “Can he really do that?” The answer, almost invariably is, “Yes, he probably can.”


In the years since George Washington’s issuance of that proclamation of neutrality, a combination of Congress surrendering portions of its powers to administrative agencies led by presidential appointees, decisions by the Supreme Court and unchallenged power grabs by presidents themselves have turned the presidency into a metastatic organism that expands virtually unchecked throughout the body politic.

This would be troubling enough with a president who had some awareness of both the powers vested in him by the Constitution and of time-honored norms designed to inhibit conflict between the branches of government — a sort of Marquess of Queensbury rules that inhibited former chief executives, but not one operating according to the rules of Marquis de Sade.

The Founding Fathers were not oblivious to the possibility that knavish and unscrupulous individuals could win the presidency, but they were confident that the other two branches of the federal government and the states would boldly defend their constitutional turf and ambition would counteract ambition. But they could not imagine as president someone so apparently unfamiliar with the Constitution he's meant to protect or the lapdog loyalty of his partisans in Congress unwilling to display even a glimmer of institutional patriotism against presidential encroachment.

The excuse for so much of this devolution of power to the executive has been justified in recent years by the ability of a single decision-maker to act quickly and decisively in a national emergency. The limitations of that argument can be seen in Trump’s resort to a kind of laissez-faire federalism in the face of a pandemic that threatens the entire country.

Using federal aid to leverage praise from state governors is perhaps the most debased act of any American president.


So we find ourselves in a situation in which almost any presidential impulse, however bizarre, is likely to go unchecked. The spare wording of Article II of the Constitution — with its gauzy phrases such as the “the executive power shall be vested in a President of the United States” and that he shall “take care that laws be faithfully executed” — have, by today, been distended beyond the understanding of an 18th century mind and now more closely resemble the Leviathan of Thomas Hobbes, which surely would not have been used by our founders as the template for their new republic.

Ask not, then, what the president can do; ask what the president can’t do — and you will be shocked by the brevity of the answer.

Ross K. Baker is a professor of political science at Rutgers University. He was a consultant to the House of Representatives’ Democratic caucus, a senior adviser to Sens. Patrick LeahyPatrick Joseph LeahySupreme Court battle could wreak havoc with Biden's 2020 agenda Shelby signals GOP can accept Biden's .5T with more for defense Bipartisan lawmakers want Biden to take tougher action on Nicaragua MORE (D-Vt.) and Chuck HagelCharles (Chuck) Timothy HagelOvernight Defense: Navy medic killed after wounding 2 sailors in Maryland shooting | Dems push Biden for limits on military gear transferred to police | First day of talks on Iran deal 'constructive' 140 national security leaders call for 9/11-style panel to review Jan. 6 attack Trump Afghan pullout deal unachievable, says ex-Pentagon leader MORE (R-Neb.), and scholar in residence in the Senate Democratic Leader’s Office in 2008, 2012 and 2016. He previously was a research associate at the Brookings Institution, a Fulbright lecturer at the Swedish Institute of International Relations, and is the author of numerous books including, “Is Bipartisanship Dead? A Report from the Senate” (2014). Follow him on Twitter @Rosbake1