Trump demonstrates why we should limit the powers of lame-duck presidents

My latest appears in The Hill.

 Constitutionally, U.S. presidential power is all-or-nothing. Either one is president of the United States

with the full scope of authority, or one is not, lacking any formal powers. This is the reality even after elections with lame-duck presidents and presidents-elect during transitions.  This needs to change.

As with so many other issues, Donald Trump’s presidency has revealed flaws in our   constitutional design, one created for a horse-and-buggy era, or when it was assumed that the leaders we selected would observe certain unwritten rules about the use of presidential authority.  Presidential transitions are one of those areas that need fixing.

The Constitution’s Framers likely gave little, if any, thought to presidential transitions in 1787.  They called for the Electoral College to pick the president, but there was no uniform date for when the electors would vote and no explanation about when a president would take office. George Washington took office on March 4, 1789, simply because that was the date the Constitution took effect. That date stuck until 1933, when the 20th Amendment set Jan. 20 as the date for a new presidential term to start. That amendment and the Uniform Time for Federal Elections Law, which dictates that the presidential election will occur on the first Tuesday after the first Monday in November, mean that between Election Day and inauguration day nearly two-and-a-half months will pass. This means that a person rejected by voters still enjoys the full perks of presidential power long after being voted out of office, while the newly chosen leader must wait to act.

It is not that way in other countries. Across the world, either transition periods are dramatically more brief in time, or the existing leaders are limited to performing caretaker functions. Yet handoffs of presidential power in the United States are different. While the Presidential Transaction Act of 1963 provides funding and resources for new presidents, it does little else.  Our Constitution leaves it to the incumbent and the president-elect to work out transitions. Historically, all but for 1860 with the election of Abraham Lincoln and the Civil War, the transitions have been mostly uneventful.

But outgoing presidents often have used the lame-duck period to cement in their legacy — for good and bad. They issue executive orders, grant pardons, or take other actions. Some would argue they use the opportunity to act without political constraints to do things they believe are good for the country but that may not be popular — again, such as issuing unpopular but merciful pardons, or invoking the Antiquities Act to preserve federal lands from development.

Yet President Trump’s last acts as president appear to be more destructive than good for the country. Witness his actions to try to overturn the election results, and his persistent refusal to cooperate in the transition by denying President-elect Biden’s team access to vital intelligence and other information that is important to national security. Also consider his decisions to veto a military budget bill, impede a pandemic relief bill, issue pardons to his supporters who broke the law, executive orders on the environment, and perhaps make foreign policy decisions that affect U.S. interests. At best, lame-duck presidents should not be able to make such major decisions. At worst, these appear to be efforts to sabotage an incoming administration before it gets started. 

One can hope that Donald Trump is a one-of-a-kind president and his exit is unique. But he is only the most extreme example of a problem regarding presidential transitions that should be fixed. The process of selecting a president involving the Electoral College may foreclose a shorter transition period — but even if it could be briefer, the use of lame-duck powers and the absence of authority for the president-elect persists.

By law, and perhaps constitutional amendment, these problems might be fixed. For example, we could limit lame-duck executive orders, presidential vetoes, judicial and other appointments, and pardons. Incoming presidents should have a say over post-election legislation and be given automatic access to intelligence, and perhaps even authority to take action in some situations.

The Founding Fathers were smart but they failed to think about presidential transitions of power.  Many presidents have sought to use post-election time as a last-ditch effort to cement their legacies, and Trump more than most has demonstrated the problems with leaving the hand-off of power to goodwill and chance.

The 2020 US Presidential Race Ain’t Over Until It’s Over (it’s over)

 

American baseball icon Yogi Berra once declared “It ain’t over till its over.”  Donald Trump,

Republicans, and his supporters can protest all they want, but by the end of December 8, 2020, the presidential race is over and Joe Biden has won… fair and square. It is now time to follow the sage advice of the American actor John Wayne

December 8, 2020 was a momentous day in the 2020 US presidential cycle.  The US Supreme Court rejected Trump’s request to hear  his appeal of the  vote results in Pennsylvania. At both the federal district and court of appeals levels Trump’s claims of voter fraud were rejected.  In the case of the latter court, a Trump appointee wrote the opinion declaring that there was no evidence presented that there was wide spread voter fraud in that state’s election and therefore there was no case.  In turning the president’s appeal down today, the Supreme Court effectively affirmed that point.

Additionally, December 8, is important for another reason.  Under 3 U.S. Code §5, states that have settled on the method of resolving  electoral college delegate disputes before the election and have the disputes settled six days before the electors meet would have them presumptively upheld by Congress on January 6, 2021 if there were any disputes.  This law is known as the “safe harbor” provision. With California having certified its election results on December 4, 2020, that put Biden at 279 electoral votes, and with the passing of the  safe harbor date,  states are free to cast their electoral votes on December 14, Biden will have enough electoral votes to win, and Congress will be obligated to certify the electoral vote count on January 6, 2021.

There is nothing that can stop Biden’s victory now.  The Texas Attorney General’s lawsuit on December 8, seeking to prevent several states from certifying their electoral votes  will go nowhere. The State has no legal standing to challenge what other states do with their electoral votes.  The Constitution gives states nearly complete discretion to allocate their electoral votes in ways they see fit.  Just this spring in Chiafalo v. Washington, --- S.Ct. ---- (2020), the Supreme Court affirmed that point.  Additionally, for anyone who understands American law, Texas has no legal standing to bring the case—it has suffered no legal injury.  The lawsuit is grandstanding at best.

            But then again, all of the lawsuits have been that.  Trump and his allies have lost every substantive lawsuit they brought.  Across state and federal courts, and even with state legislatures, he has had multiple opportunities to show fraud and failed.  The reason why he has failed is simple—there was no proof of fraud.  The courts have adjudicated that, recounts have proved that, legislative hearings have shown that.  You can’t prove what does not exist.

            December 8, was the last hurrah for Republicans.  That is why in states such as Minnesota there were final claims of voter irregularity and fraud.  It was one final effort to appease a base of voters unable to accept the fact they lost in a fair election.

            Ross Douthat’s bloated  New York Times essay offers many reasons for the many people who cannot accept that Trump lost.  But simply stated, cognitive dissonance, confirmative bias, partisan political polarization, and a  pandering fragmented media  in search of audience (and therefore telling them what they want to belief and not what they should know) and profits are the  causes.  It also has not helped that Trump himself is still in denial.

            What now?  Back in 1960 the American actor John Wayne was a conservative who voted for Richard Nixon. But in 1960 he said this after the election of John Kennedy: “I didn’t vote for him, but he’s my President, and I hope he does a good job.”  John Wayne had many faults, but he was an American first and  not a sore loser.  So was  Al Gore and Hillary Clinton in 2000 and 2016 when despite winning the popular vote for the presidential election they lost the electoral vote and the presidency to George Bush and Donald Trump respectively.

            It is time for Mitch McConnell and all the other Republicans in the US to emulate Wayne, Gore, and Clinton.  Put the country ahead of  partisanship and pettiness.  Recognize for good or bad  Joe Biden won fairly, and move on.  It’s over more than ever.

No--The Donald Trump Cannot Pardon Himself and other Legal Fallacies

 Note: An earlier version of this essay was published in this blog on April 25, 2018.

President Trump can probably pardon his family, friends, confidants including Rudy Giuliani. And that is the problem.  And that is a problem. No credible legal mind thinks the president can pardon himself.  For anyone to think so is yet even a bigger problem.

The concept of unlimited discretion of the president to issue pardons and reprieves for all crimes and bad behavior is clearly inconsistent with the concept of limited government, federalism, and checks and balances and the courts need to rethink the constitutional doctrine that allows for such unchecked authority.

 The historical roots of presidential pardoning power are sourced in British monarchical power.  At one time British kings and queens had unlimited political power, subject to no checks and balances.  “Rex non potest peccare”–“The king could do no wrong”–was the legal theory that gave monarchs not just unimpeachable political power to command, but also the capacity to forgive and pardon.  To paraphrase The Merchant of Venice, the quality of mercy could be strained, as determined by the king.

 Yet the idea of unchecked monarchical power in England ended if not with the Magna Charta in 1215, it did so with the adoption of the English Bill of Rights in 1689 and the Glorious Revolution in 1688-89.  Kingly power was subject to limits and, as British philosopher John Locke would argue in his Two Treatises on Government, legitimate governments and authority are subject to limits defined by the rights and consent of the people.  No government official, including a king, should be given unlimited and unchecked authority.

 Locke is considered America’s philosopher; he heavily influenced the Founding Fathers, including Thomas Jefferson.  In writing the Declaration of Independence, the famous second paragraph that begins with “We hold these truths to be self-evident” is homage to Locke. The second half of the Declaration of Independence reads like a criminal indictment against the king–further attesting to the idea that our political system was founded on a fear of unlimited executive power that needed to be check.

So to is the opening words of the Constitution–“We the people”–and even the Bill of Rights.  All of these documents speak to the idea of a government of limited powers and authority, that no one person is above the law, and that the very idea of American constitutionalism is one where there are no inherent and unlimited powers vested in anyone person, office, or body.  The constitutional framers fear of kings and unbridled abuse of power and discretion is the reason for separation of powers and checks and balances.

 However some kingly like powers seemed to work their way into the Constitution. Article II, Section  2 grants that “The President . . . shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”  During the Constitutional Convention and debates surrounding its ratification critics feared that the power would be abused and that it needed to be checked, including perhaps by the Senate.  These calls were rejected, and as Alexander Hamilton argued in Federalist number 74: The “prerogative of pardoning should be as little as possible fettered or embarrassed.” But it is not clear that all the Framers intended the pardoning power to be unchecked at all.  The debates at the Constitutional convention demonstrated many concerned with granting presidents unlimited power, others seeming to assume that presidents would excise appropriate discretion in its use.  Unfortunately the courts have not agreed to such checks.

 In Ex parte Garland (71 U.S. 333, 1867) the Supreme Court said of the pardoning power that the

             "power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions."

Mainstream legal doctrine after Garland suggests presidents can pardon for federal crimes only.  The principle of federalism prevents a president from using a pardon to protect against crimes committed against state law.  The pardon does not extend to civil judgments at any level of government.  And the president cannot pardon himself no matter what.

Yet the pardoning power scope is so broad that it even allowed President Gerald Ford to pardon Richard Nixon before he had been indicted for any crimes.

 President Ford’s pardon of Richard Nixon was controversial, and some say it was the reason why Gerald Ford eventually lost a very close presidential race to Jimmy Carter in 1976. It also forever tainted Nixon as a crook–why pardon him unless he did something wrong?  In fact, in Burdick v. United States, 236 U.S. 79 (1915), the Supreme Court suggested that acceptance of a pardon came with it the acknowledgment of guilt.

           This brings us to the differences between legislative immunity and a pardon. They are         substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it (236 U.S. at 94)

Since this pardon, other presidents have used their powers to pardon for political reasons. In 1981 President Ronald Reagan pardoned two FBI agents convicted for authorizing illegal searches of property of antiwar protestors in 1973. In 1992 President George Bush pardoned former defense secretary Caspar Weinberger and other individuals associated with the Iran-Contra Affair during the Reagan administration, and in 2001 President Bill Clinton pardoned Patty Hearst, a kidnaped heiress turned member of the Symbionese Liberation Army, and Marc Rich, who had been indicted on charges of making illegal oil deals and tax evasion. The latter pardon was considered controversial because Rich’s wife was a significant political donor to Clinton campaigns. George W. Bush issued very few pardons and Barack Obama issued 212 complete pardons and another 1,715 commutations of sentences.  While all these pardons met constitutional muster, no  doubt some could be considered abuses of presidential power.

Presidents do have a constitutional power to pardon and mercy is something they should be allowed to show, using the pardon as a way to correct injustices.  Yet pardons should not be beyond  constitutional limits and review.  Presidents who abuse their pardoning power might not get reelected–as in the case of Gerald Ford.  But these checks are insufficient, and if the dicta in Garland is taken seriously then nothing would prevent presidents from pardoning themselves, relatives, political allies, and friends.  A constitutional morality that takes rights seriously and also believes that no one should   profit from their own wrong or stand beyond accountability should not allow for unchecked presidential pardoning power.  Presidents are not kings, they do and should not have inherent and unlimited authority to do anything, including pardon.

The Supreme Court got it wrong in Garland and it is time for the Supreme Court to overturn that precedent.  That decision and dicta are a relic from a different era and legal system.   The best chance of revisiting Garland may come if Donald Trump   seeks to pardon himself or is implicated in a bribery pardon scandal.  A self-pardon would certainly merit a Supreme Court review that might allow it to rethink Garland.  A pardon issued in the context of a bribery scandal should simply be viewed as null from the start since it is a criminal act.  This type of pardoning would also suggest in the history books that the president and all those who he pardoned ascknowledged their guilt of crimes they had commited even if not indicted or convicted.

If the American Revolution and Constitution stand for anything it is that no one is above the law.  Granting presidents unchecked pardoning power,is inconsistent with separation of powers and checks and balances in that it undermines the ability of the judiciary to act and hold people responsible for contempt.  Unlike kings at one time, we do not presume that presidents can do no wrong and instead the logic of the Constitution is premised on the notion that–as James Madison said in Federalist number 51, that “Men are not angels"–and that there should be limits on all uses of power. Over time the Supreme Court has issued numerous decisions limiting presidential powers, and the same needs to occur with the pardoning power.

The Problem with Governing by Presidential Executive Order

 

As Donald Trump leaves the presidency his last task will be to issue a batch of executive orders meant

to cement his legacy.  Among the first tasks Joe Biden will perform on January 20, 2021 after he becomes president will be to issue a batch of executive orders to undo those of his predecessor.  Both Republicans and Democrats will cheer for their side’s executive orders. Is this any way to run a government?  Unfortunately, the answer has become yes, and that is a problem that needs to be fixed.

            It seems like an endless quadannular cycle.  Presidents come and go and with that executive orders change.  For example, when Bill Clinton became president in 1993 he issued an executive order reversing one issued by Ronald Reagan that had banned the use of US foreign aid funds to groups that supported abortion.  In 2001 George Bush reserved that executive order.  In 2009 Barack Obama reversed Bush’s order.  In 2017 Donald Trump reversed Obama’s order.  In 2021, Joe Biden will reverse Trump’s order.  There are scores of other executive orders that have a similar pattern and fate.

            Executive orders have been around since George Washington.  There have been nearly 14,000 executive orders issued since 1789.  Franklin Roosevelt issued the most with 3,522, William Henry Harrison the least with zero (he died within a month of his inauguration).  In recent history,  Bill Clinton, George Bush, and Barack Obama respectively issued 254, 291, and 276 executive orders, each in two terms.  Donald Trump has issued 195 so far in one term, even after declaring as candidate he would not resort to governing by executive order.

            There are two constitutional basis for executive orders.  The first is found within Article II of the Constitution that vests in the president executive power and which authorizes him to  take care that the laws be faithfully executed.  These powers give the president some discretion to make routine administrative and law enforcement decisions.  Executive orders issued under Article II are policy but not law per se, and presidents can issue them at will and overturn them  at will.  These constitute a large percentage of the type of executive orders presidents issue, including ones Trump will pronounce in the next few weeks and which Biden will reverse.

            The other type of executive order premised upon Congress delegating authority to the president via the law.    This delegated power gives presidents and the executive branch the authority to issue rules or regulations—often to fill in the gaps in laws—or act in emergencies.  Executive orders issued pursuant to delegated power carry the force of law and the Administrative Procedures Act generally has rules regarding when and how they can be issued and how they can be repealed.  Executive orders regarding the environment, energy, food or health, banking, or the workplace often fit into these category.

            Obama but more so Trump has used executive orders for this purpose.  Presidents are using executive orders more because of the partisan polarization stalemating governing in Washington, D.C.  Similar problems at the state level, including Minnesota, when it comes to governor’s executive orders, most recently with the pandemic.

The Trump administration has arguably had the worst records ever among  US presidents in court regarding having these executive orders struck down because it failed to follow proper procedure in issuing them.  No surprise here.  Trump and his administration largely were ignorant or indifferent regarding legal protocols and procedure, thinking that being president was like being a CEO on The Apprentice or sitting in the executive suite of  Trump Towers.  The final story of the Trump administration in part will be told about how less effective he was because of his procedural ineptitude with executive orders and governing in general.

            Trump’s coming wave will meet a similar fate.  Biden will overturn many on day one, many of the others will be invalidated in the courts, even by judges he has appointed.  But these checks beg the broader question—is governing by executive order any way to run a government?

            The answer is no.  Presidents have become too powerful and need to have their power clipped.  Congress can begin to do that by thinking about the scope of delegated power they wish to give to the president. Post-Watergate there were some efforts to do that but over time they were undone.  One thing Joe Biden should think about is a longer-term plan to change the law to make it harder for executive orders to replace working with Congress to make law.  Governing by executive order only exacerbates the polarization of American politics and gives Congress a way out of having to make the policy choices they were elected to make.