Symposium | Trump Vs. Democracy

Legislating Around Congress

By Barney Frank

Tagged CongressDemocracyDonald Trump

Everyday conversation is full of phrases that people often use with only occasional regard for their actual meaning. “Literally” and “the exception that proves the rule” are the most common. One slight silver lining in the disastrous cloud that is Donald Trump is that it provides an opportunity to illustrate the proper use of a third example.

“She fails to see the forest for the trees” is not just another way to say she missed the point. It asserts that she has reacted so strongly to a particular aspect of a situation that she misses its broader import.

Specifically, for this symposium, it describes the danger that legitimate outrage at the substance of Trump’s blatant disregard for the constitutional limits on the power of the executive branch will diminish attention to the profoundly anti-democratic damage they inflict on our system.

There is no better example of wielding a badly flawed blunt instrument as a substitute for coherent policy than Trump’s border wall. But the damage it would do to a comprehensive immigration strategy will do much more harm over time if it stands for the rule that presidents can treat congressionally enacted appropriations as pots of money that they can repurpose at will, even where Congress has specifically rejected funding the matter at issue. I do not take sides in the debate over whether Hamilton preferred an elective monarchy, but if he did so, what Trump has done in this case would be the effective result. In the tug of war between the executive and legislative branches that the Constitution mandated, the only real weight on the latter’s side is the power of the purse.

Protecting that source of authority from executive infringement has been a major focus of congressional efforts since the days of Richard Nixon. The problem has been trying to find a way to force the President to spend appropriated funds to which he has some objection.

As difficult as this has proven, Trump’s assertion of the power to move money from defense equipment to a border wall; to spend the collection of legally mandated taxes; and to impose his own personal scheme for assisting the unemployed threaten to make it worse. Allowing the executive to spend appropriations elsewhere increases his incentives not to spend them on their legislative purpose.

More profoundly, there is a qualitative difference here between negative and positive power. It is the financial equivalent of adding to the President’s veto power the ability to adopt a new piece of legislation on any subject whenever he is presented with one he dislikes. In no version of private or public law does the right to decline to make an expenditure automatically confer the right to initiate others.

A President who can not only impound funds but then spend them within a wide range of subjects can not only ignore the Congress whenever he feels the need; it will not take great negotiation skills to use this power to win congressional agreement when that is the preferred route.

The tree-forest contrast is not just a figure of speech. It underlines the need for Trump’s critics, especially on the left, to resist the temptation to concentrate on undoing the specific exercises of this unilateral executive authority, rather than take every possible step to prevent its future use.

This begins with resisting the temptation to push presidents with whom you disagree to flex these muscles for good purposes. It is the failure to show this discipline that has led to the current state of the war power. When Barack Obama showed respect for the congressional role in this by declining to bomb Syria after the Republican Congress refused his request for authorization, many on the left joined in criticizing the substance of his decision without acknowledging its constitutional bases.

This example demonstrates another danger to the idea of representative government in putting too much decision-making in presidential hands giving politically timid members of Congress a way to evade responsibility. The refusal of the Republican majority to vote on Obama’s request for authority to move against Syria is representative of the behavior of both parties in both houses for the past decades. Recently, Trump’s unprecedented unilateral decrees dealing with the pandemic have served—deliberately—to ease pressure on Republican senators to agree to an appropriate legislative package.

The right has already demonstrated that its history of complaints of executive arrogance is sheer hypocrisy. This is a chance for the left to demonstrate that our commitment to the proper blend of legislative and executive authority is sincere.

One last point is necessary. The threat of unchecked executive power that Trump’s actions portend is enabled by an extra-constitutional doctrine of the Supreme Court.

The court’s long history of declining to rule against presidential disregard of congressional enactments on the ground that these are political questions to be settled between the political branches reinforced presidential impunity by leaving Congress unarmed. Future presidents should not only restrain their use of power not granted by the Constitution; they should look for Supreme Court justices prepared to rule against a President who spent funds that were appropriated for one purpose on an entirely different one.

Solemn affirmations that Congress can protect itself issued by justices far above the battle amount to telling Congress to pass a duplicate appropriation that the President can then twist to his purposes without restraint

From the Symposium

Trump Vs. Democracy

No President in our history has presented such a threat to the Constitution and our democracy as this one. In this special issue, we asked 35 contributors to describe different aspects of the assault. We could have asked twice that number.


Trashing Science

By Gregg Gonsalves


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Read more about CongressDemocracyDonald Trump

Barney Frank served for 8 years in the MA House of Representatives and 32 years in the U.S. House of Representatives.

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