Today, President-elect Donald J. Trump and Vice President Michael R. Pence will take the oath of office on the western steps of the Capitol building. Mr. Trump enters the White House as possibly the most controversial new President in history. His inauguration will be met by record-setting protests – 200,000 people are expected to attend the Women’s March alone – and polls clock his approval rating at just 40 percent.
While his supporters believe he will restore American leadership in the world, the President-elect’s critics point to a series of controversial campaign positions and statements, which, when it comes to national security, range from a statement that if Iranian naval vessels continue to harass U.S. ships in the Straits of Hormuz they “will be shot out of the water” to a promise to “bomb the [expletive]” out of ISIS and “take the oil” from Iraq.
However, perhaps the most important question to ask as Trump enters office is not what the President wants to do, but what exactly he can do. In the execution of national security and foreign policy initiatives, this question becomes particularly important. Since the end of World War II, U.S. presidents have progressively expanded the reach of executive authority over the levers of foreign policy and national security and, in the 15 years since 9/11, that authority has only deepened.
Now, as a President with little foreign policy experience – whose national security team includes individuals with oftentimes radical views – prepares to enter the Oval Office, just how much unilateral power does that office hold?
9/11 fundamentally changed the U.S. national security landscape. The uncertainty and deep feeling of insecurity that characterized the American system directly afterward made it a logical pivot point for the transition from an era of relative presidential constraint following the Watergate scandal and Nixon’s resignation, to one of relative unilateralism today. Galvanized by the scale of the 9/11 attacks, Congress quickly passed an authorization for the use of military force – and a raft of additional legislation, including the Patriot Act – which gave President George W. Bush broad powers to pursue “those nations, organizations, or persons” that he deemed responsible for the plot.
The United States has been at war ever since. And, says Harvard Professor Jack Goldsmith, “for nearly 15½ years, presidents have done things—extensive military force, expanded surveillance at home and abroad, detention without trial, and much more—that they never could have done absent the post-9/11 ‘forever war.’”
By 2008, however, unpopular wars in Iraq and Afghanistan and the perceived abuse of this enhanced executive authority had provoked powerful public backlash. Indeed, President Barack Obama’s path to victory in 2008 relied heavily on promises to curtail these powers, end the war in Iraq as well as controversial practices like waterboarding and the detention of “enemy combatants,” and shut down legal grey zones such as Guantanamo Bay.
Yet, in practice, Obama has not delivered on the promise of a more restrained presidency – at least, not exactly. The departing President did restrict the use of indefinite detentions and military tribunals for suspected terrorists within his administration, worked to pare down the prison population at Guantanamo, and set a new “presidential policy guidance” on the government’s use of drone strikes. However, most of these limitations are strictly internal; Congress has no leverage over and cannot enforce these limitations.
This means that, not only can such internal restrictions on executive agencies be reversed by the Trump administration, Obama actually legitimized many of these policies by keeping them open for future use. In some areas, argues Goldsmith, he even expanded upon them. For instance, “the administration blew a hole… in the War Powers Resolution, when it concluded that the extensive aerial bombardment in Libya…did not amount to “hostilities” as specified under the act.
Of course, none of this behavior is new. Nearly every U.S. president seeks to expand the authorities of his office and, says Neal Devins, a professor of law and government at William & Mary College, presidents have "broad authority to interpret federal law in ways that advance [their] political agenda.” As individual policymakers with focused political agendas, presidents naturally look for gaps or grey areas in the law, which they can reinterpret to their benefit.
Congress and the courts are meant to serve as a check on the overly aggressive expansion of executive authority. However, many believe that this balancing role has eroded significantly in recent years. This effect is seen most clearly in the relationship between congress and the presidency. During the Nixon era, for example, congress was less defined by partisan loyalties. Instead, it was made up of a number of bipartisan coalitions. These were better able to defend institutional priorities against the encroachment of executive power through legislation such as the Ethics in Government act, and congressional initiatives like the Watergate impeachment.
However, says Devins, “in today’s polarized era… the thought of the parties coming together to assert a shared congressional vision…seems pretty far-fetched." Hyper-partisan voting patterns have come to dominate congress in the modern era, a phenomenon epitomized by the Republican refusal to confirm Obama’s Supreme Court candidate for almost a year. In this environment, members of congress have little incentive to buck the party line, especially in areas of national security, which generally don’t interest core constituencies.
The courts can step in to fill some of this gap by hearing suits against supposedly unlawful presidential policies. But, in the national security realm, much of this judicial process is determined behind closed doors in the classified Foreign Intelligence Surveillance Court (more commonly known as FISA). Similarly, the Obama administration has successfully fought to shield things like targeted killings from judicial review – notably in the case of Al Qaeda leader, and American citizen, Anwar al Awlaki. Such rulings have significantly expanded the ability of presidents to pursue national security imperatives free from judicial censure.
Does this mean then that executive authority has run amok, and that President Trump will have unfettered power to fulfill radical campaign pledges to “take out” the families of terrorists or create a nationwide registry of Muslim Americans if he so chooses? Goldsmith thinks not. “Trump can threaten these illegal things but he won’t be able to implement them.” For some issues, like the return of “waterboarding,” this is because laws have been passed to ban the use of torture in interrogation.
In other areas, argues Goldsmith, internal ethics monitors, bureaucratic resistance from the military and intelligence agencies, and fierce opposition from civil society organizations like the American Civil Liberties Union (ACLU) will work to circumscribe the president’s reach. Even congress, he says, “has been more consequential in constraining the national security president since 9/11 than people realize” – specifically, the push to ban “enhanced” interrogation tactics was largely led by congress. However, he muses, “I wouldn’t take too much solace from this point…a president can do many things that are lawful but awful.”
Fritz Lodge is an international producer at The Cipher Brief. Follow him on Twitter @FritzLodge.
