The Unitary Executive Theory (UET) recently took a big hit from a most unusual vandal: Donald J. Trump.
The theory itself is as old as the country and, you’ll recall, was a particularly passionate fever dream of Dick Cheney. For him, it wasn’t just about power for the sake of power. Mr. Cheney used the theory during the administration of George W. Bush as a petri dish to road test every revenge fantasy against Congress he’d been fondling since Nixon got chased out of town. Congressional subpoenas? Bah and feh to you.
There is nothing particularly clever or groundbreaking about the UET. It is basically the weaponized incarnation of the so-called “imperial presidency,” a phenomenon that has been a going concern since Abraham Lincoln suspended habeas corpus and then ignored the Chief Justice of the Supreme Court when he ordered Lincoln to stop. It took five years to untangle that mess, but in the end, Lincoln lost. Only Congress can suspend habeas corpus, the high court ruled.
The imperial presidency has become a particularly enormous dilemma ever since the president of the United States was given the power to deal virtually instantaneous death — to an individual, a city or an entire hemisphere — with the push of a button or a whispered order. That kind of power sucks in more power like a gravity well.
Combined with the president’s constitutional role as commander in chief of the armed forces, and the fact that the United States has been in a state of permanent war pretty much since Pearl Harbor, it is no wonder that the reality of the imperial presidency has enjoyed a nearly uninterrupted run of growth over the last seven decades. Congress, throughout that span but far more severely of late, became a marginalized noise factory vested with incredible powers it has all but forgotten how to use.
Donald Trump, in his short time as president, has taken the concept of the imperial presidency and made it into a bloated three-ring caricature of itself. He really believes himself to be all-powerful, he actually has castles, and when the torturers start wincing at you when it comes to executive power, you know you’ve broken new ground.
He also thinks he can unilaterally halt immigration, build border walls, sabotage the nation’s health care law, strip cities of federal funds, obliterate clean air and water standards and rewrite military guidelines, for openers, all without congressional input or approval. This is the Unitary Executive Theory strapped to the nosecone of a North Korean ICBM. Nothing good comes of it.
The most recent example of this took place on Tuesday, when Trump sent Attorney General Jeff Sessions out to announce that the administration was rescinding the Deferred Action for Childhood Arrivals program (DACA). Trump left a six-month window for Congress to deal with the matter themselves. If they don’t, some 800,000 people will be threatened with deportation in March because conservative talk radio has convinced Trump’s base that every DACA applicant is a Democratic voter waiting to happen. Yeah, in case you were wondering, that’s part of the reason why he did it.
The last president thinks rescinding DACA is a very bad idea, as do hundreds of prominent business leaders, religious leaders of every stripe including Trump’s own evangelical adviser, immigration activists all across the country as well as more than a few Republicans. It would also appear that this member in good standing of the imperial presidents club is handing a significant slice of power back to Congress, but in this instance, appearances are deceiving.
What Trump has done by rescinding DACA actually represents a monumental deployment of executive power, and a viciously cruel one at that. By fiat, he has upended and potentially shattered the lives of hundreds of thousands of people. Consider the massive human impact of this decision. The people affected have homes, jobs and families right here in the US. Most of them have been here their whole lives, and they were just told by the president of the United States they no longer have a country. This was a hate crime writ large.
Trump very clearly enjoys the idea that he holds such sweeping powers. Why, then, is he throwing sand into his own gears on another matter of tremendous import?
Trump’s act of self-vandalism began last April when the administration released a one-page outline of their “tax reform” plan. It was perhaps the most detail-free government document ever produced on the North American continent, and nobody paid it much mind. With September upon us, however, taxes, and the budget, and the debt ceiling, and relief for the victims of Hurricane Harvey and probably for Hurricane Irma are looming particularly large in Congress.
All of a sudden, Republican members have begun bellyaching about the lack of substance found in the president’s tax plan. It is as if Article I, Section viii of the Constitution — “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises” — had never been written. Their lack of interest should come as no surprise; presidents have been drafting highly detailed versions of the nation’s tax policies for years now, leaving Congress to wrangle the minutiae. Now, Trump wants them to do it all. Lincoln’s first State of the Union address was a scrap of paper read to Congress by a clerk. This is pretty much that.
Why did he do this? The ability to set policy for the nation’s revenue stream is as muscular a position to be in, politically speaking, as you’re ever going to find. Where and how those tax dollars go is the gasoline that fires all the engines in Washington, DC, and the White House appears perfectly ready to give it away.
Here’s what I think: Donald Trump has broken with the imperial presidential model on taxes because the issue is extraordinarily complicated, he is historically lazy and his people are historically unqualified. He is not ceding vast constitutional power back to Congress because it’s the right thing to do. After seven and a half months of realizing that executive orders don’t actually accomplish much, that presidents really do need to have a serious grasp of the details, that he has almost no friends where it matters, and that the emperor is butt-ass naked after all, Trump appears for all the world to have spit the bit.
The fact that this is actually how it is supposed to work — the legislative branch is tasked with taxes, not the executive — only makes the situation all the more strange. The imperial presidency is giving enormous power back to Congress, but Congress seems to have little idea what to do with it. Generations of shoddy Republican lawmakers who hated government as a matter of holy writ have culminated in a legislative body which no longer knows how to legislate. The West is on fire, the storms are coming for the East, and two full thirds of the federal government needs a feeding and a burping before nap time. Seventeen years into this brave new millennium, and that’s where we’re at.