Tuesday, May 23, 2017

The Entirely Predictable Minnesota Special Session

A special session for the Minnesota State Legislature was entirely predictable.  One practically could
guarantee after the 2016 elections that with a Democratic governor and a Republican legislature a special session was likely, and a partial governmental shutdown again a real possibility.  While the tentative budget deal brokered at 11:50 Monday night–just minutes before adjournment–could fall apart, it looks for now that the worst scenario has been averted.
Yet no one should take this deal as a sign of victory; instead it points yet again to many underlying failures in the budget process in Minnesota which has created what I have called for years the new normal.  The new normal refers to a process dating back 20 years where special sessions, government shutdowns, and failed legislative sessions are the rule and not the exception. So why yet again did the legislature miss its deadline?  Why the new normal?
Budgets reflect values.  They reflect priorities that different individuals or political parties have regarding what programs are to be fund and for how much, and what public policies they want to see for the state.  Budgets are political visions.  The new normal in Minnesota reflects a changing political climate in the state that started about 20 years ago.  This is no longer a solidly DFL state.  As the shifting partisan control of the governor’s office and legislature have shown over the last 20 years, Minnesota is a politically competitive and divided state.  Clinton’s relatively narrow presidential victory over Trump in the state in 2016 demonstrated that.  
Look at a map of Minnesota. It reveals from the presidency down to legislative and local races clear patterns of DFL and GOP control.  More importantly, the two major parties are polarized along a range of issues ranging from health care, mass transportation, taxes, guns, abortion, and preschool funding.  The two parties are relatively equally divided in strength and along their values, making  compromise difficult.
Secondly there is a collective action problem.  There is a collective interest in compromising and reaching political agreement in a timely fashion, but there is little individual incentive to compromise. Among the 201 seats in the Minnesota legislature, no more than about 15-20 in the House and perhaps a maximum of 10 are from swing districts.  The remainder are strongly Democratic or Republican, representing districts where legislators are elected to stand firm on to their partisan views.  It is only those legislators who come from the s wing districts–those with a real chance to flip from one party to another–is there an incentive to compromise.  Strong partisanship in one of these districts is a political liability.   A paucity of swing seats means less pressure to compromise, and throw in strong party government in the state and even in those swing seats there is powerful pressure to vote straight party line.
Third, there is a leadership issue here.  While parties or party polarization may be strong, leadership is weak in the sense of being able to prevent individual members of the legislature from offering bills to appease interest groups or constituents.  Moreover, safe-seat legislators are less dependent on party leadership and can pursue or push special legislation, often without fear that leadership will punish them for it.
But finally, as I have argued or more than a decade, there is a structural problem with the budget process that reinforces the values and political polarization.  The budget process is antiquated.  This is the same budget process that has been in place for decades; it is a horse and buggy process trying to operate in the twenty-first century.  It was designed when state government did far less than it does now, when budgets were a tenth or less of what they are now.  It is a process premised upon the belief that part-time farmer legislators could show up for a few months, vote yea and nay, and then go back and plant their crops.  None of this reflects reality.  The budget process is complex, time consuming, and requires technical knowledge that is way beyond perhaps what we can expect of legislators, especially those first elected in November and then two months later asked to master state government and pass a budget.  Simply put, government may just be too complex to  legislate and budget within the 120 constitutional day limit drawn up for the state in a Norman Rockwell era.
Beyond the fact that legislators suffer from a typical human trait to procrastinate to the last minute, the budget process makes no sense. Legislators take office the beginning of January, wait a month for the governor’s budget, then wait another month for the fiscal forecast. Real budget work does not even start until March–half way through the session, and even then, until budget targets for the ten omnibus bills are decided, few details can worked.  Over the years, half of the budget session has been wasted on passing bills to legalize Texas Hold’em card games or Sunday liquor sales. Moreover, because the budget process is so decentralized, it is hard to control and discipline, and the collective disregard for the constitutional single subject rule simply means that policy gets mixed into budgets, and, in many ways, no one has control over the budget until such time as the parties have taken their predictable ideological votes to please their bases before they begin to think about compromising.
Budget process reform is imperative, including mandating automatic continuing resolutions to finance the government to advert shutdowns.  But even structural reform will not address the values divide in the state and the peculiar political incentives that the two sides have that encourages them to fight and not compromise.

Saturday, May 20, 2017

Trumpapalooza: It’s Worse than Watergate

With each passing day and news story about the Trump administration, the parallels to Nixon and
Watergate get stronger and stronger.  Yet while stories of coverups, obstruction of justice, and the hiring of a special investigator invite powerful comparisons, the reality is that with Trump it is  potentially far worse than Watergate, far worse than Clinton, Lewinsky, and Whitewater, and maybe even worse than Iran Contra.  Trumpapalooza–an all encompassing, 24/7, multi-media extravaganza, –could be the worst of all presidential scandals so far.
It is unfortunate that one of the defining themes of American politics in the last 50 years has been repeated stories of abuses of presidential power.  Once called the imperial presidency by historian Arthur Schlesinger, Jr., it was a product of granting too much power to the president to act in a range of domestic and international events, congressional acquiescence of its constitutional duties, and usurpation and abuse of authority of presidents for personal gain or revenge.
Watergate is the paradigm of that abuse.  Most narrowly defined, Watergate when the story first broke was about a break in at the Democratic Party national headquarters at the Watergate office building in Washington, D.C.  The story started at first without any allegations of presidential role of White House connection, but it soon expanded to be a much more comprehensive saga of the abuses of power of the Nixon presidency.
The Watergate break in occurs in June, 1972, in the middle of Nixon’s re-election bid for a second term.  Initially there is no indication of presidential involvement but there were rumors shortly after the break in Nixon was already hard at work ordering hush money to cover his tracks.  In addition, in the burglars’ possession when caught was Nixon’s campaign headquarters reelection number The Watergate story does not really take off until 1973 when several reporters and mounting political pressure forced Congress to begin hearings, and then in October 1973 after Nixon had named former Solicitor General Archibald Cox as a special investigator to look into the events, the former fired the later in the famous Saturday Night Massacre.
Through the remainder of 1973 and into 1974 the House and Senate Watergate hearings and the investigation of Leon Jaworski produced a tale of illegal activity that implicated the president of the United States along with his attorney general and other major officials in his administration.  Tied directly to Watergate were Nixon’s ordering of the break in, the cover up, efforts to impede the criminal investigation, and in the end a constitutional battle over the possession of White House tapes of conversations that Nixon had made.  All of this culminated in the Supreme Court decision United States v. Nixon where the Court ordered Nixon to turn over his tapes to a special prosecutor, ruling that the imperatives of a criminal investigation outweigh any executive privilege g rounded in the Constitution  that the president may have in withholding them.  In effect, the president was not above the law.  That decision, along with a House Judiciary vote along bipartisan lines to impeach the president and a grand jury naming the president as an”unindicted co-conspirator,” forced Nixon to resign on August 8, 1974.
Watergate started with a pretty break in of the opposition’s headquarters.  But the entire story of Nixon’s abuse of power also encompassed illegal fundraising, payments of hush money, maintaining an enemies list, attacks on the media, and engaging in an illegal war in Cambodia.  Watergate engulfed, dominated, and ended early Nixon’s second term as president, after serving an initial four years that did produce a score of major legitimate legislative victories including the passage of the Clean Air Act, Clean Water Act, and the creation of the Environmental Protection Agency.  For all the criticism of Nixon, he was a career politician with a congressional and vice-presidential resume, and he had an ability to work with Congress.
It’s potentially far worse than Trump for him, his presidency, the Republican party, and maybe the United States. Trump has no experience in government or the military, and therefore no real understanding or apparent interest in how Washington works.  In many cases he has also appointed individuals with no government experience, and he has failed to fill many critical positions in government.  Trump ran on draining the swamp in Washington and he seems to think that this means crippling the machinery of governance, yet to secure his policy agenda he needs to take control of what Steve Bannon labels the deep administrative state.  So long as Trump continues to show contempt for the Constitution and government he will be unable to get anything done.  The first 120 days portend a pattern of policy inaction, preventing him and the Republicans from securing  their policy agenda.  Trump has created something unique for Washington–intra-party gridlock.  One expected Obama and the Republican Congress to be at odds–but not this kind of stalemate.
But if an aborted or arrested policy agenda were the total of what the problems facing Trump that might not be so bad. Yet it is coming at the beginning of his presidency, not in a second term as was the case with Nixon, Reagan, and Clinton.   But more importantly, the bigger problem are the legal, constitutional, and political issues.  Nixon and Watergate began with allegations of presidential involvement in a petty burglary, the story here involves Trump, his campaign, and his administration’s complicity and conspiracy to work with Russia to interfere and influence American elections and policy.  
Allegations that Trump personally, his family and business dealings, and many of his advisors or staff that include Michael Flynn, Jeff Sessions, and Paul Manafort worked with the Russians, were being paid by them, or in some way coordinated with or cheered on their activities to affect US elections and policy is  far worse than Watergate.  It is far worse than the arms for hostages diversion that Reagan ordered in Irancontra, and it is clearly far worse than Clinton lying about his sexual behavior or losing money in a land deal called Whitewater.
And we can draw this comparison with the benefit of 20/20 hindsight, having all or most of the facts about these previous abuses of power in hand.  Right now few of the facts of  Trumpapalooza are known and investigations have hardly started.  It potentially will reveal far worse.  Who knows how far-flung the story will be, and where it takes one into ow Trump’s private business dealings connect to Russia and other foreign governments or what conflicts of interests it will produce.  Who knows the real reasons for the Comey firings and whether they amounted to obstruction of justice.  Who knows whether the war on the media has produced an enemies list or what other unconstitutional activities (beyond two botched executive orders on immigration and one on sanctuary cites) there are or have been.
The appointment of Robert Mueller as special investigator is only the beginning.  For any who think this is going to be a quick investigation, think again.  The more Trump fights it and sees it as a witch hunt the more likely it seems that he will be uncooperative and force the investigation  well into 2018, thereby nearly guaranteeing that it impedes the Trump-Republican policy agenda, and impacts the elections.
The electoral connection is the last and perhaps most interesting parallel to Watergate.  Until in 1973 when efforts to investigate Nixon were bipartisan, so far the GOP has stood by Trump, tying their political fortunes to him.  They are resisting calls to investigate and criticize.  But if Trump becomes even more of a political liability to them, they may be forced to act otherwise in 2018 there could be a repeat of 1974 when Democrats won huge majorities in Congress, Minnesota, and across the nation.  It is the fear or possibility of that political reality that dictates how the Republicans respond to Trump in the next few months.

Saturday, May 13, 2017

The Constitution and Coming Impeachment of Donald Trump

Please note: This is a preview of a talk I will give on Tuesday, May 16, 2017 for Stand Up Minnesota.  Click here for more information.

If in fact President Trump removed FBI director James Comey to impede his ability to investigate
 possible Russian interference in US elections, then Donald Trump should be impeached.  He should be impeached because this is obstruction of justice, a crime meriting presidential removal from office according to the Constitution.  But even beyond the Comey dismissal, there are many reasons that could justify impeaching Trump.  The issue is not if he should be impeached but when, and the when depends on the point when Congressional Republicans think Trump is such an anchor for their party that he impedes their political agenda, party, and electoral prospects in 2018.

From day one of his presidency, Democrats have contended for Trump’s impeachment, yet it was no clear whether he did anything meriting impeachment.  Mostly the calls were political sour grapes.  But with the Comey firing we are in a new realm–commission of a felony–something at least as serious as the grounds for the impeachment of Bill Clinton who lied about his sexual behavior.  So what grounds are there to impeach Trump?  The Constitution provides a starting but partial answer.

Article II, section four outlines the process for impeaching and removing a president from office.  It declares that the president, vice-president, and other civil officers of the United States can be removed from office by “impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”  Removal of the president is a two-stage process.  First a major of the House of Representatives must agree on one or more articles of impeachment.  If that happens, the House then appoints a committee to lead the prosecution of the articles.  The Senate then must hear the articles of impeachment in a trial-like proceeding over which the Chief Justice of the Supreme Court presides.  It takes a two-thirds vote of the Senate to convict and if that happens, the president is removed from office.  Think of House impeachment as similar to indicting one for a crime of which then the Senate  is a trial to determine guilt.

 What would Trump have to do to constitute an impeachable offense?   Article II, section four lists three possibilities.  Treason is the first, and the Constitution defines that to be engaging war against the United States or giving our enemies Aid and Comfort.  Treason is a high bar to meet, really historically requiring  something where it involves military action or issues that directly address national security.  It is possible that his campaign’s or staff’s collusion with the Russian government is treason but we do not know that yet.  That is why there was the FBI investigation and therefore efforts to impede it might be efforts to obstruct justice.

 The second possibility is bribery.  Bribery would be accepting payments in return for the performance or conveyance of government services or favors.  Given Trump’s extensive business holdings and refusal to divest himself of them, there is a possibility that the conflicts of interest that he personally has could rise to a constitutional level problem that would merit an impeachable offense.  For example, allegations of Russian business connections and how they might be impacting  Trump’s foreign policy decisions might be a form of bribery.

 Finally, there is the phrase high crimes and misdemeanors?  What does that mean?  In adopting this phrase the constitutional framers employed language that had existed in England since  1386 when the Parliament used the term to refer to a variety of actions including the misappropriation of funds or dereliction in the performance of official duties.  Mal-administration comes to mind as a close meaning, although when that word was proposed at the Constitutional Convention by George Mason, James Madison objected to it and substituted high crimes and misdemeanors in its place.  Mal-administration is not simple policy disagreement or even sloppy administration, it needs to rise to perhaps a constitutional level, perhaps even including something approaching gross negligence and dereliction of duty.

 An alternative meaning for the phrase was offered in 1970 when the House of Representatives tried to impeach Supreme Court Justice William Douglas.  The Congressman Gerald Ford said an impeachable offense was “whatever a majority of the House of Representatives considers it to be at a given moment in history.”  In truth, Ford is correct–impeachment is a matter of political judgment where Congress ultimately decides the fitness of a person to serve in office, such as president.

The House could reasonably conclude that the Comey firing was obstruction of justice as a grounds for impeachment.  They could also conclude that if Trump tries to hinder a congressional investigation of his Russian connects, that it too is an impeachable offense in that in interferes with the constitutional powers of Congress.  But there are other grounds for impeachment.

Article I, Section 9, Clause 8 of the United States Constitution states that “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”  The emolument clause was added to the Constitution out of fears of foreign interference with the US government.  If Trump is receiving directly or through his business holdings money or other benefits from another government, such as a state-owned enterprise, that could be an emolument violation, constituting either bribery or another constitutional violation that could be seen as a high crime or misdemeanor.  Whether all this is factually accurate we do not know and the FBI investigation in part was aimed at answering these questions, thereby making his firing an effort to obstruct justice.

Finally, so far the Trump presidency has been marked by either non- or  mal-administration.  It has largely been ineffective in getting much done, and it is mired in a host of controversies that have rendered his administration unfit to govern.  He is putting US governance in danger, suggesting that it would not be wrong for Congress to decide that his very impotence and incompetence merits impeachment.

Of course whether impeachment will happen is up to the Republicans.  Unlike with Nixon in an era where bipartisanship still existed, so far Republicans are largely behind Trump.  It will not be until he is so politically embarrassing and damaging to the party that he needs to go.  Trump has already done worse than what Clinton did to merit impeachment, and what he has done is potentially rising to the level of what Nixon did. The issue then seems to be not whether he should be impeached, but when.

Wednesday, May 3, 2017

Di Thao, Politics, and the Problem of Political Corruption

A thin line distinguishes legitimate political contributions and solicitations from bribery and
extortion.  Assuming all the allegations are true, St Paul Council member Dai Thao and his campaign manager crossed that line when they tended votes for money.  Yet even if they did nothing illegal,  this incident should not blind us to the bigger problem of how money corrupts politics and how political influence is leveraged, and, how contrary to what the Republicans are currently doing in the State Legislature, why we need more restrictions on the use of money for political purposes.
The Dai Thao example is what is called quid pro quo corruption–the offer or exchange of money for the performance of an official governmental act such as a vote on legislation.  This is what most people think of as political bribery or extortion and it is illegal under the federal bribery and gratuity statute, 18 U.S.C. § 201, or Minnesota Statutes § 609.42.    Some will contend that the offer or exchange of money for political influence is really what all political fund raising is about, so why should not all that be illegal?  The answer is yes...and no.
First, the critical legal line possibly crossed in the Thao incident is the explicit or implied exchange of money for the performance of an official act.  Bribery laws require a showing of criminal intent, and thanks to a recent Supreme Court decision, it must be an exchange of money for an official government act.  Smart politicians correctly and legally avoid bribery by never promising to alter a vote or perform an official act conditioned upon the payment or receipt of money.  They may tell supporters that they need their money so that they can continue to do their job or protect their interests but there is not an explicit promise to change a vote.  Moreover, elected officials generally also build fire walls that separate campaign from government staff to further make sure lines are not crossed.  All these are subtle but important distinctions that at least in theory contrast bribery or extortion from legitimate fund raising.
Yet quid pro quo corruption is the thinnest and perhaps most rare example of political corruption.  Many believe that corruption is more than bribery; it also has a more structural  aspect.  The issue is not just the explicit exchange of money for an official government act, it is how money is used to by not just access but repeated access.  In theory elected officials should return all phone calls or meet with all their constituents.  However, the names of big donors are recognized and are called back first or seen  more readily.
Corruption is when some interest groups can spend large sums of money in order to lobby and gain access to decision makers.  It is when lobbyists or big donors also serve as fund raisers to help solicit money for incumbents and candidates and then are rewarded for their efforts.  It is when, as in Minnesota, the legislative caucuses and political parties and their subunits are allowed to solicit and accept in the aggregate  unlimited amounts of money from individuals, political action committees, and lobbyists.  This is a problem because the parties set the political platforms and the caucuses the legislative agenda.  Money thus influences what parties believe and what legislation is heard.
The real issue is that money should not be the mechanism that determines how political power and influence are allocated.  Money might be a great way to allocate sailboats but it should not be the medium for handing out political influence and making political decisions.  Years ago Justice Rehnquist declared in  First National Bank of Boston v. Bellotti, “It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.”  Similarly, in  Federal Election Commission v. National Right to Work Committee the Court declared that it was legitimate to worry that “substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political ‘war chests.’” At one time the Court aligned with public opinion, recognizing a broader sense of corruption tht extended far beyond what one sees in the Thao situation, suggesting that even if what he and is campaign manager did was not actually illegal, it was still inappropriate political behavior.
Yet under Chief Justice Roberts, the Supreme Court has all but gutted political corruption laws.  In McDonnell v. United States the Court overturned the former Virginia’s bribery conviction, ruling that official acts did not extend to an exchange of gifts and money in return for arranging meetings and calling other public officials to discuss a donor’s business.  And in  McCutcheon v. Federal Election Commission, Roberts seemed to endorse the idea that purchasing influence is permissible when he declared:

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties.

Contrary to Roberts, many of us do think that seeking access or influence is political corruption, and the current ways that we finance our campaigns and elections is a legal form of bribery and corruption.  The solution in part is to make candidates and parties less dependent on large donations, and to encourage more disclosure.  Unfortunately, the Republican majorities in the Minnesota legislature are eliminating the system for public financing of elections in the state, and are trying to restrict the power of the state to regulate money in politics.  Such an effort if successful, will only  fuel more behavior such as what we see with Dai Thao.

Monday, May 1, 2017

Who Killed Political Reform and Ethics?

“My fellow Americans, ask not what your country can do for you, ask what you can do for your country.”
–John J. Kennedy, Inaugural speech, January 20 ,1961

“It’s very possible that I could be the first presidential candidate to run and make money on it.” –Donald Trump, (Fortune, April 3, 2000)

The political reforms of the Watergate era are over. And it was not Trump alone who killed over the reforms.  Obama did his fair share, as well as Democrats and Republicans across Minnesota and the country who have done it over at least a decade if not longer. It is less of a surprise that this has occurred than it is that no one–neither the public nor the media–seems to notice or care.
Watergate political reforms is a shorthand to refer to a collection of laws and policy initiatives at the federal, state, and local levels meant to combat political corruption and open up the  political and governing process to more transparency, fairness, and political accountability.  These reforms includes the Ethics in Government Act that addressed problems such as conflicts of interest.  It also included sunshine, open meeting, and freedom of information laws meant to ensure government decisions and data are open to public inspection.
Additionally, there were a host of campaign finance laws such as the Federal Election Campaign Act, McCain-Feingold, and at the Minnesota level, the 1994 Marty reforms that build on 1970s laws that banned lobbyist gift giving,  provided for public funding for campaigns, and otherwise created a scheme for disclosing the solicitation and expending of money for political purposes.  Collectively these laws, along with other mandatory and voluntary acts by candidates, such as statements of economic disclosure and release of candidate tax returns, went a long way to opening up the political process to more scrutiny.
Certainly there were problems with many of these reforms, but the biggest criticisms were two.  First, they may not have even gone far enough in terms of rooting out the impact that money has on the political process or in terms of extending disclosure and transparency as far as it needed to go.  In effect, the laws felt short of the reforms truly needed to be effective, or even if once effective, they failed to keep pace with efforts to do end-runs around them.
Second, many insiders–especially many  elected officials, the political parties, and lobbyists  simply did not like the reforms.   They saw them as costs of doing business, simply distasteful laws  that limited or restricted the quiet, comfortable relationships they had developed overtime.  They voted for these reforms because they had to, in part because of strong public support for these regulations in light of the Watergate abuses.  In many cases these reforms were internalized by elected officials at the time, but with the passage of time, the lessons for why these reforms were adopted has faded.
Yes the Supreme Court has not helped.  It has struck down many campaign finance reforms as violations of the First Amendment, equating money with speech.  The Court has narrowed the scope of what is considered legitimate forms of corruption regulation, limiting it to only classic forms of quid pro quo bribery in exchange for an official act (money give to buy a vote), while also ignoring the broader ways that money and power create a structural bias in the political system that political scientists repeatedly describe as one that favors the rich.
But even without the Court stepping in , both Republicans and Democrats at all levels of government has demonstrated indifference if not cynicism toward political reform.  Obama talked a great game about money in politics but he was the first major presidential candidate to reject public funding when he ran for president.  He complained about Citizens United but never took executive  actions that he could have that would addressed some aspects of it.  Now he has sold out completely,  giving $400,000 speeches to Wall Street that follow Hillary Clinton’s $500,000 speeches.
Trump flouts ethics in ways too numerous to count.  His conflicts of interest between his government role as president and his private business dealings are too numerous to count.  The same extends to his family and many of his billionaire appointments.  He has broken a presidential traditional of releasing tax returns, and in general, despite “draining the swamp,” he seems to be expanding its scope.
At the state level, Minnesota has not enacted a significant political reform since 1994.  While once a national leader, the Center of Public Integrity assigns Minnesota Ds and Fs for ethics and openness in government.  Bipartisan support eroded some parts of the gift ban law, supported increases in the amount of money that can be contributed to political campaigns, and now, as John Marty has pointed out, the legislature is poised to eliminate public funding for campaigns.   As the recent story about Dai Thao demonstrates, local officials and their surrogates are embolden in pushing the boundaries of acceptable political behavior.
And why all this happens the public seems indifferent.  Democrats dismiss the improprieties  against Obama and Republicans the same with Trump.  Corruption seems accepted, and few now seem upset by the idea that American government is up for sale.
So who  killed political reform and ethics?  Maybe it was the elected officials who walked away from reform as inconvenient, except when used as a cudgel to further partisan gains and fuel polarization.   Or maybe it was the media, much of which no longer saw promoting good government  as an issue.  Or maybe it was public who came to accept the status quo as acceptable and which no longer seemed to expect government officials to act with honesty and integrity.

Thursday, April 27, 2017

Trump’s War on Law: Why He Will Lose on the Antiquities Act

A defining characteristic of Trump’s first hundred days as president has been his  ineffectiveness and ineptness due in part to an indifference or misunderstanding of the concepts of constitutionalism and rule of law.  This flaw will again doom another of his initiatives–seeking to revisit presidential designations of public land as parks or monuments under the Antiquities Act.
Presidents derive their power from two sources–the Constitution and Congress.  Article II of the Constitution grants presidents executive power, to be commander-in-chief of the armed forces, to appoint justices and other individuals to posts, veto legislation, and “take care that the laws be faithfully executed."  But Congress may also delegate powers to the executive branch, placing conditions and limiting principles upon what presidents may do.  If presidents cannot trace their authority to the Constitution or Congress, they cannot act.  There is no inherent extra-textual presidential authority to act.  Presidential executive orders are defined by these two sources, and if  they act in ways inconsistent with either, the courts will declare the actions impermissible.
The federal courts did that to Obama, declaring executive orders to address immigration and  greenhouse gas emissions went too far.  Now three times already within Trump’s first 100 days federal courts have enjoined his executive orders regarding bans on Muslim immigration and retaliation against sanctuary cities.  One would think that Trump and his lawyers would have learned some lessons about following the law, but apparently not.  He is now taking aim at the Antiquities Act, and depending on what action he takes, the courts will also rebuff him.
On April 26, Trump issued an executive order directing the Department of Interior to review all presidential designations since 1996 of land of 100,000 acres of more under Antiquities Act to be reviewed.  What that review means is unclear, but Trump believes such large designations are illegal, hinting at undoing them.  Trump is wrong, and he lacks the authority to undo what previous presidents did, absent congressional authorization.
The Antiquities Act was signed into law in 1906 under Teddy Roosevelt. It simply stated that:

That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected...

At least 15 presidents across the two major parties have used the Antiquities Act to preserve and create park space or protect specific monuments.  Teddy Roosevelt first used it to protect Devil's Tower in Wyoming and the Grand Canyon in Arizona.  The last three presidents have extensively used the Act–often in the waning days of their administration–to preserve millions of acres of federal land.  For environmentalists this is great, but for some critics of presidential power and those who want to see more energy exploration or commercial use of federal property, this is an abuse of power.  This is where Trump comes in, literally trying to make real Sarah Palin’s “Drill, baby drill” wherever possible.
While the Antiquities Act gives presidents discretion to declare public lands as monuments, it does place limits on what they can do.   Remember, the Act is a congressional grant of power to the president of the United States.  Twice Congress has imposed limits on presidential uses; once after Franklin Roosevelt used it to create a Jackson Hole Monument in 1943, another after Jimmy Carter used it to protect part of Alaska. In both cases Congress responded to limit future uses of the Act in those states.
But there are two other limits in the Antiquities Act not readily seen that apply to Trump’s order.  First, Congress has effectively rejected the claim that there is a geographic size limit on the amount of land that a president may designate as a national monument under the Antiquities Act.  It has done that by failing to pass legislation after presidents have used the Act to designate large tracts of land as Monuments, including the several times it acted to recodify the law.  In effect, Congress has acquiesced to its use.  But more powerfully, in 1976, when Congress  passed the Federal Land Policy and Management Act (FLPMA), it rejected a recommendation by the Public Land Law Review Commission (PLLRC) to limit, among other things, the scope or size of the land that a president could designate under the Antiquities Act.
Second, notice the clear language of the Antiquities Act.  It gives the president power to designate land or entities as landmarks.  There is no explicit language giving a president power to  un-designate or withdraw land or entities as landmarks, or to reverse decisions made by previous presidents.  While in general the few court challenges to presidential use of the Antiquities Act have granted them broad discretion to act, the Supreme Court has also said that it is the job of Congress to limit discretion since they are the ones that defined the scope of the president to act here.
Moreover, given the original intent of the Antiquities Act to give presidents power to preserve historic landmarks, there is no indication that Congress intended or anticipated that once one president has used this power to protect something a subsequent president could reverse it.  Such action would defeat the very purpose of the law which was preservation.
Thus, there is no legal basis for Trump to be able to argue that any use of the Antiquities Act since 1996 was an abuse of presidential power or that he has the legal ability along with an executive order to reverse those uses.  Were he to go to court judges will tell him that the appropriate check is Congress and that only they can reverse past designations or amend a clear statute.
Trump will too lose this fight against the Antiquities Act.  It demonstrates a persistent pattern in his first 100 days regarding a contempt for the law that will largely stymie his presidency unless he learns that he must follow it to be successful.

Friday, April 14, 2017

The Education of Donald Trump

Slowly but surely the presidency of Donald Trump is being normalized.  By normalized it is
meant that the Trump presidency is increasingly being captured and confined by the institutional powers and realities of American and world politics.  This is something that Steve Bannon feared, and which both Trump’s supporters and distractors should recognize.

There is an old political science and political adage that declares that presidents have more authority and freedom to act internationally than they do domestically.  This is because while the structures of the Constitution–such as checks and balances and separation of powers–limit the domestic power of presidents, they are more free to act internationally, especially with either congressional acquiescence or affirmative grants of power.  This recognition that presidents have more autonomy internationally is rooted in famous Justice Robert Jackson concurrence in the 1952 Supreme Court case Youngstown Sheet & Tube v. Sawyer.  Yes, in many ways this dicta is correct constitutionally, but it misses something far more powerful when it comes to defining presidential authority; specifically the political and institutional constraints on presidents and how, as Stephen Skowronek argues in Presidential Leadership in Political Time, how history and context defines presidential power.

Back in 2008 during the US presidential elections when lecturing in Europe I was asked how the presidency of Barack Obama would differ from that of George Bush in the area of foreign policy.  I argued that the best predictor of a new president’s foreign policy was to look to his predecessor’s.  Presidents really have far less freedom to depart from the past than many think.  The foreign policy establishment is big and powerful in the US and it largely bipartisan.  Geo-political forces such as  the state of the world economy, the political interests of other nations, and the overall limits on US power and reach too further define what presidents can do.  Yes some may claim some presidents made major shifts–Nixon and China–but the changing geo-political role of China in the world made such a choice inevitable.

Obama proved that.  After making numerous promises, the Obama foreign policy was defined by choices made by Bush. The war on terror continued, troops remained in Afghanistan and Iraq, Gitmo was not closed, drone attacks persisted, and the US did not fundamentally change Middle East politics even after the Arab Spring opening because entrenched support for Israel did not change.  Even Obama’s effort to make an Asian pivot has had mixed results, and he was unsuccessful in making many changes in how to handle Syria and North Korea.  Yes Obama did make some marginal changes, but fundamentally more continuity with Bush than a break.

The same is now true with Trump.   Candidate Trump disagreed with almost all things Obama.  The Iran nuclear deal would be torn up.  Trump pledged a Mexican wall, declare China a currency manipulator and impose tariffs on their products.  NATO was obsolete, the Syrian policy wrong, Putin and Russia a friend,  and global engagement must be retracted to put America first.  Great rhetoric, but the reality is tht slowly the forces that constrained Obama are constraining Trump.  

One now sees a new Trump.  The bombing of Syria, while a departure perhaps from what Obama did, is something that Hillary Clinton and most Republicans and Democrats in Congress support.  It produced a rift with Russia that now leads Trump to muse that perhaps our relations with that country are the worst ever (they are not).    Moreover, despite tough talk, trump’s options with Syria are limited, as they are throughout the Middle East.  Expect no major change in politics toward Egypt and Israel, and do not expect any major break in addressing the Palestinian quest for a homeland.

NATO is good, and China will not be declared a currency manipulator, and, in fact, if they help Trump to contain North Korea’s nuclear program, he will give them a great trade deal.  This statement is recognition that despite the show of force the US is demonstrating in sending ships to North Korea, there is little he can do along to change the politics in that country.  Gitmo will not be closed, the policy toward Cuba not reversed, and even the dropping of MOAB–the mother of all bombs–on Afghanistan–it was a policy in the works under the Obama administration.    Trump’s enhanced deportation policy and extreme vetting looks more and more like a variation of what Obama did–partly courtesy of the federal courts–and there will be no shift in the drone war

Nearly 90 days into the Trump presidency one can already seen more continuity with Obama than breaks.  Yes there are still rough edges, yes there appears to be no Trump grand strategy, but that lives a void to be filled by the bureaucracy and foreign policy establishment.  All this is exacerbated by the fact that Trump has not filled many key State and foreign policy positions, but that only means that the weight of the status quois filling the void.

The real sign of Donald Trump’s education or normalizing was the removal of Steve Bannon from the National Security Council.  Bannon saw the power of the bureaucracy and wanted to smash it.  Instead it smashed him and may soon lead to his ouster from the Trump administration in total.  That was a Trump presidency turning point.

It seemed just a few weeks ago people were talking of a failed Trump presidency, impeachment, or a major international crisis.   Yet increasingly likely is that an incompetent Trump will create the space for the bureaucracy to take over in the realm of foreign policy, for good or bad, and to the fear of delight of his supporters and detractors.