The presidential impeachment trial now underway in the Senate—only the third in U.S. history—is, at its heart, a referendum on the constitutional powers of the executive branch: Did Donald Trump abuse his presidential powers by seeking dirt on a political opponent in exchange for foreign military aid and then block the subsequent investigation? But in some respects, Congress is also on trial—not for overstepping its constitutional powers but for undervaluing them.
Ever since Trump took office and he began to push the boundaries of constitutionally permissible behavior—beginning with the Muslim ban and the firing of his FBI director, right up to declaring a state of emergency to fund his border wall—people have asked versions of the question: Can he do that?
But it’s the wrong question. The right question is: When he does that, what’s the consequence? If the answer to the second question is “nothing,” then the answer to the first question is “yes.” Without actual enforcement and consequences, then rules—even ones laid down in a document as revered as the Constitution—become meaningless.
There are two branches of government that can apply those consequences—Congress and the courts. But like a parent who fails to discipline an unruly child, Congress has allowed its own authority to lapse or crumble—on impeachment, on war powers, on oversight and on budgetary matters. And that squandered power has shifted to the executive branch. Indeed, one can argue that Congress, by failing to enforce its own prerogatives, is effectively rewriting the Constitution. These de facto constitutional amendments, largely occurring without the public’s awareness, are of staggering importance. And they may well turn out to be just as permanent as if they had been ratified by three-quarters of the states.
Many people blithely expect that things will simply go back to normal when, inevitably, a new president is elected. Democrats assume a return to discipline with a new president, and Republicans assume that a Democrat in the White House will cower in the face of renewed oversight. But that is not the way this works. Presidents, even well-meaning ones, generally don’t give back power that they have inherited; they expand on it. The prospect of what a president with evil intentions might do with unlimited power should concern us all, no matter our political allegiances.
This crisis has been a long time coming. Abraham Lincoln used his wartime authority to call out a 75,000-person militia, close post offices to perceived traitors, spend millions of dollars without congressional appropriation and change the legal status of enslaved African Americans in Confederate states by executive order, a move known as the Emancipation Proclamation. On his first day in office, President Franklin D. Roosevelt began regulating the economy by declaring a “bank holiday” to prevent runs on cash deposits. With the New Deal, Congress for the first time delegated massive swaths of legislative authority to regulatory agencies housed within FDR’s executive branch. Harry Truman used his presidency to enlarge the national security apparatus. And the pace of the erosion has again picked up in the past two decades, beginning with post-9/11 concessions and continuing through the Obama years.
But a quarter-century of intensifying partisanship and party-first thinking has brought us to a moment of historic peril in which presidential overreach and congressional deference have combined in ways that seem to affect almost every aspect of the interrelationship of the legislative and executive branches. Impeachment, of course, is foremost among the constitutional friction points the government is confronting, but given the continuing tensions in the Middle East, war powers is easily a close second place. There are at least another four fundamental areas in which Congress’ has failed to vigorously defend its own enumerated powers: emoluments, advice and consent on appointments, budget appropriations, and even the basic power to pass legislation with the force of law. In each case, Congress, either slowly over time or in a sudden collapse, has acted in a way that has redefined a government that increasingly exists only in textbooks.
‘The sole power of impeachment’
Indictments and criminal trials of presidents aren’t permitted—not because the Constitution says so but because the Department of Justice does.
The DOJ’s memos are essentially statements of an internal policy directing federal prosecutors to ignore presidential criminality on the rationale “that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” The first DOJ memo surfaced while President Richard Nixon was under scrutiny for crimes that ultimately led to his resignation. The second expanded upon the original memo’s legal rationale on behalf of President Bill Clinton—one of three presidents in the history of the United States to be impeached by the House of Representatives—concluding that the burdens imposed on a president are too weighty to sustain the distractions of a criminal trial.
The memos mean that the only way to hold a president accountable while in office is through impeachment. And this is where Congress has managed over the past two decades to effectively disarm its most powerful weapon of presidential oversight.
The Clinton narrative is familiar by now. He lied in a civil deposition and, later, to a grand jury about his extramarital affairs. Clinton’s articles of impeachment cited perjury and obstruction of justice, which are crimes under federal and state law. But his lies did not operate to enhance his own power or his ability to hang on to power in the next election. Clinton’s infidelity and cover-ups were not exactly a “violation of some public trust,” as Alexander Hamilton described the political offenses that would justify impeachment. The Clinton impeachment thus established a constitutional precedent that a crime without an abuse of office is insufficient to justify removal from office.
For Trump, the very opposite is in play: an alleged abuse of power—and thus the public trust—by withholding a White House meeting and $391 million in Senate-approved aid to Ukraine unless and until President Volodymyr Zelensky announced an investigation into Joe Biden. The Government Accountability Office announced Thursday that withholding this congressionally approved aid was illegal.
Although obstruction of Congress is a crime, the second of two articles of impeachment approved by the House of Representatives does not expressly charge it as such. If Trump—like Clinton—is acquitted after a Senate trial, as expected, the affair will set a precedent that an abuse of office and actions that likely amount to a crime are likewise insufficient to justify removal of a president from office.
There was an alternative path that House Democrats could have pursued that would have asserted their rightful powers. They should have moved to compel Trump’s compliance with their information requests by using the third branch of government: the judiciary. By sleeping on Congress’ legal right to information bearing on impeachment, House Democrats failed to enforce the impeachment prerogative in the Constitution itself. The result is a feckless arm of presidential oversight and a message to future presidents that the Constitution’s impeachment clauses are unenforceable and therefore meaningless.
If the public cannot see justice done through the judicial branch because of a DOJ memo, then impeachment must be available. But without access to underlying facts by virtue of presidential obstruction, impeachment is effectively unavailable as well. The Trump administration’s intransigence does not excuse Congress for failing to exercise its independence. Senate Majority Leader Mitch McConnell’s announcement that he works for the president—not his colleagues in Congress—when it comes to the Senate’s Article 1 impeachment prerogative only seals the fate of impeachment itself as a meaningful check on the presidency.
A chicken-and-egg quandary
Donald Trump’s targeted killing of Iranian Major General Qassem Soleimani this month was done without congressional knowledge, let alone consent—reviving a chicken-and-egg quandary that has hovered around the constitutional war powers for many decades. A plain reading of Article 1 suggests that, by giving Congress the power to declare war, the framers of the Constitution explicitly denied the president that power.
But time and precedent, not to mention the formation of a gargantuan standing military unimagined by the framers, have conspired to shift war-making power to the White House.
In the Soleimani strike, Trump complied with the law but kept the notification classified, prompting House Speaker Nancy Pelosi to complain that “this initiation of hostilities was taken without an [authorization of the use of military force] against Iran, without the consultation of the Congress and without the articulation of a clear and legitimate strategy to either Congress or the public.” Democrats in the House and the Senate have introduced legislation to prevent funding for military efforts in Iran or to require approval from Congress for additional hostilities, but such measures are no match for the weight of history.
Since 1789, Congress has declared war 11 times—not including the Civil War, which happened at Lincoln’s direction—most recently against Bulgaria, Hungary and Romania in World War II. Since then, the United States has entered into numerous significant conflicts—including in Korea, Vietnam and Iraq—without official declarations of war by the U.S. Congress. For the Korean War, Congress did weigh in by approving funding and extending the draft. More recently, Congress enacted broadly worded authorizations for use of military force to legalize presidential military campaigns. In 2004, a plurality of the Supreme Court in Hamdi v. Rumsfeld treated Congress’ AUMF in response to the Sept. 11 attacks as constitutionally sufficient to justify President George W. Bush’s pursuance of the second war in Iraq, which wound up having nothing to do with avenging 9/11.
But while history has tolerated presidents’ initiation of military conflicts without formal declarations of war by the legislative branch, Congress is not out of the war-making picture. It is significant that the Constitution gives Congress the power to appropriate money to the military, as there was no standing army or navy at the time the Constitution was ratified. A president of the early 1800s would have had to consult Congress to use significant military force, therefore, with or without a formal declaration of war.
Congress underscored its oversight role in 1973, when—over Nixon’s veto—it passed the War Powers Resolution “to fulfill the intent of the framers of the Constitution … and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities.” The statute requires the president to report to Congress within 48 hours of taking military action “the circumstances necessitating the introduction of United States Armed Forces.” Congress then gets 60 days to approve or reject it. But Congress has never once exercised its prerogative to suspend military actions it found imprudent.
Citing prior presidents’ uses of force, a Bush-era memo from DOJ’s Office of Legal Counsel took the position that the president can order military action “as Chief Executive and Commander in Chief” without the consent of Congress. Under the same authority granted President George W. Bush, President Barack Obama conducted military actions in Afghanistan, Iraq, Pakistan, Yemen, Syria, Somalia and Libya—including against ISIS, a group that did not even exist when Bush signed the AUMF into law on September 18, 2001 . Although Obama asked Congress to update the authorization, nothing happened. The request was too polarizing and politically risky for lawmakers.
According to a study conducted at Brown University, the United States has “spent and obligated” nearly $5.9 trillion in post 9/11 wars , which have contributed to approximately 500,000 civilian and military deaths. The U.S. military has been fighting al Qaeda in Afghanistan without interruption for 18 years and while its counterterrorism activities have expanded to 39 percent of the world’s nations. Congress has let this happen without calling significant public hearings—
similar to the Fulbright hearings on Vietnam in 1966—on how the wars were justified and carried out.
Short of starving the military of funding through its appropriations power—which is unrealistic because it would expose the United States to untold danger—Congress has scant power over the president when it comes to military conflicts anymore.
The Power of the Purse
Congress has also belittled itself by allowing the president to flout its appropriations power.
Just last week, the nonpartisan U.S. Government Accountability Office issued a decision declaring illegal Trump’s directive to withhold funds appropriated by Congress to the Department of Defense for security assistance to Ukraine. Because “the President is not vested with the power to ignore or amend any such duly enacted law,” the GAO reasoned, the deferral of funds was improper as a matter of law. “Here, there was no external factor causing an unavoidable delay. Rather, [the Office of Management and Budget] on its own volition explicitly barred DOD from obligating amounts.”
Setting aside whether such conduct warrants removal from office, it’s astonishing in its own right that congressional Republicans backing the president have no qualms with decommissioning a key lever of their own legislative oversight authority under the Constitution: the power to decide, on voters’ behalf, how the other branches get to spend taxpayers’ money.
By the same token, Trump tried—and failed—to get Congress to appropriate money to build his promised wall at the southern border. His failure marked an affirmative “no” from Congress on the use of federal dollars for that purpose.
But Trump went around Congress, declared a national emergency, and then diverted funds appropriated for other purposes to build his border wall. The Trump administration engaged in some legal gymnastics to justify this switch, but that’s beside the point. A majority of both chambers voted in favor of a resolution to end the emergency. But by a 36-53 vote, the Senate failed to override Trump’s veto. Once again, Republican lawmakers undermined their own branch’s constitutional authority by backing Trump on this.
To be sure, in most instances, Congress will still decide where dollars go. But when there’s a conflict between Congress and the White House, the Trump precedent means that presidents might simply ignore the Constitution’s mandate that Congress decide how money is spent and do as he or she pleases.
Blocking pay-to-play schemes
Before Trump, most people had never heard of “emoluments.” But the Constitution actually contains two emoluments clauses—one foreign and one domestic—whose purpose is to ensure the presidency doesn’t become a pay-to-play enterprise. Boiled down, the foreign emoluments clause means presidents can’t accept goodies from foreign governments absent Congress’ approval, period.
But as we know, Trump is the first president in history to refuse to legally separate himself from his business interests—including his branded luxury hotel chain and related enterprises— to avoid conflicts of interest, both literal and perceived. President Jimmy Carter put his family peanut farm business in a blind trust, Nixon sold most of his assets when he assumed office, and President John F. Kennedy put relevant portions of his sizable fortune into a blind trust. Although federal laws banning officeholders’ financial conflicts of interest do not bind presidents, pre-Trump presidents behaved as if they did. Up until now, moreover, Congress seemed to agree. In 1979, Republicans even hired a special prosecutor to investigate whether Carter had misused the family peanut farm as president, albeit to no avail.
A number of emoluments-related lawsuits against Trump have been threading through the federal court system—including one filed by over 200 House Democrats—with varying success. Courts are loath to get involved in disputes between the political branches that smack of pure politics, particularly when, as now, Congress has failed to use its constitutional powers to enforce the Constitution.
No proposed legislation has emerged from either chamber as a result of Trump’s self-dealing through holdings that include the Trump International Hotel in Washington—which Lev Parnas, an associate of personal Trump lawyer Rudy Giuliani, recently called “a breeding ground” and “one big cesspool” for those seeking access to the president, including members of Congress. In October, a House Rules Committee resolution disapproving of Trump’s emoluments was scrapped once he stepped back plans to hold the next G-7 summit at the Trump National Doral Resort in Miami. Although the viability of the emoluments clauses remains a battle worth waging in the courts, if it goes nowhere, the Constitution’s express emoluments bans will become obsolete, if they aren’t already.
Loyalty to president, not the public
The Constitution’s “advice and consent” clause implicates a less often discussed aspect of Ukraine-gate: Trump hand-picked his personal lawyer, Giuliani, to engage in foreign policy toward Ukraine.
Giuliani was not nominated for a State Department post, let alone confirmed by the Senate. Unlike Senate-confirmed appointees, Giuliani did not take an oath of office to uphold the Constitution and the laws of the United States. Neither is he under contract with the federal government, which would permit him to be dismissed or sued for failing to comply with the contract terms.
After voting on the articles of impeachment, House Democrats publicly released a letter produced by Parnas confirming Trump’s outsourcing of the State Department to his private fixer. In the letter, Giuliani requests a meeting with the Ukrainian president “as personal counsel to President Trump and with his knowledge and consent.” This news is unsurprising. Giuliani has long made clear that he does not work for the American people. His sole loyalty is to a single man: Donald Trump.
Although presidents have utilized private emissaries in the past (FDR famously tapped Harry Hopkins as an envoy to Josef Stalin and Winston Churchill during World War II), what’s different about Giuliani is the very reason that Trump was impeached by the House in the first place: Giuliani’s “diplomacy” operated to the exclusive benefit of Trump-the-man and was in fact at odds with the interests of the United States as reflected in decades of established policy toward Ukraine. What’s best for the United States is to promote democracy in Ukraine by staving off Russian aggression. What Giuliani did (and apparently continues to do) for Trump was in fact good for Russian President Vladimir Putin, not the American people.
Had Giuliani been duly nominated and subjected to Senate confirmation hearings, the American people would have had a chance to hear and weigh in on whether this is the kind of person and policy they want representing them. By allowing Trump to select a crony to conduct a shadow foreign policy that conflicts with America’s interests, Senate Republicans are poised to destroy their own constitutional power to check presidents’ appointments of principal officers within the executive branch.
Laws aren’t optional
In a rule-of-law system in which no one—including the president—is above the law, the assumption is that individuals and institutions comply with federal laws passed by Congress or face the consequences. For most people, those consequences may include monetary fines, a loss of a government benefit, prison or even execution. But under Trump, Congress’ power to make laws that are heeded by the president is also under siege.
Consider the Ukrainian scandal itself. A whistleblower lodged a legal complaint. That complaint was investigated by federal authorities, and those authorities recommended that the complaint be sent to Congress. The relevant statute states that the director of national intelligence “shall” turn the complaint over to Congress if the intelligence agencies’ inspector general deems it credible and a matter of “urgent concern.” Those criteria were unequivocally met here. Yet after consulting with the White House and DOJ, the office of the director of national intelligence decided not to reveal it to Congress. Trump’s team treated the federal law as optional, but so far Congress has taken no steps to probe that offense, which would at a minimum entail hearing directly from the people within the president’s chain of command—including Attorney General William Barr—who made the decision to disregard federal law. There’s no reason to expect that Trump—and his successors—won’t do it again.
The constitutional question of the moment is this: What tools—if any—remain available as a check on the office of the presidency? The text of the Constitution itself does not have the answers, but history suggests that the number is very few. Americans need to know this. Whether we do anything about it is another matter.
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