The law of unintended consequences figures prominently
public policy. When the legacy of President Trump is written into the history
books, whether that be one year from now or five, it is likely that this axiom,
which holds that actions frequently have effects that were far from their
intended purpose and that often run counter to it, will play a prominent role.
In President Trump’s case, the result of the imposition of the law of
unintended consequences may be that the president’s plan to use broad executive
powers to enact his agenda actually ends up limiting presidential power both
for Mr. Trump and his successors.
Way back in January 2016, candidate Trump announced his intention
to follow Barack Obama’s lead in using Executive Orders to get things done when
Congress refused to act. “I won’t refuse it. I’m going to do a lot of things,
Trump said on “Meet
the Press” at the time.
“I mean, he’s led the way, to be honest with you,” Trump
said, “But I’m going to use them much better and they’re going to serve a much
better purpose than he’s done.”
When Bill Barr was confirmed as attorney general, the
president found a likeminded lawyer to help carry out his aims and, to coin a
phrase, be his wingman. In a speech
to the Federalist Society in November 2019, Barr lamented what he called
the “steady encroachment on Presidential authority by the other branches of
government,” which he said had “substantially weakened the functioning of the
Executive Branch, to the detriment of the Nation.”
Most constitutionalists would probably disagree with Barr.
In fact, it is generally conceded that Congress has abdicated much of its
authority to the president over the past century or so. While there were
exceptions, such as the War Powers Act, Congress has habitually passed vaguely
worded laws and then punted them to the executive branch to iron out the
details. As a result, the president and his cabinet have an almost unfettered
hand in rulemaking for everything from health insurance policies to import
Even this broad expansion of presidential power has not been
enough for recent chief executives. Both Barack Obama and Donald Trump pushed
the envelope of presidential and executive bureaucratic authority. Resistance
from Congress to these usurpations of its power has mainly been a partisan
issue with the battle lines reversing depending upon which party is in power at
However, the Trump Administration, headed by a president who
has said repeatedly that “Article II allows me to do whatever I want,” has
provoked a flurry of lawsuits pushing back on the idea that presidential power
is unlimited. On one occasion, the president’s
lawyers even argued in court that Mr. Trump could not even be punished for
shooting someone on Fifth Avenue while in office, but that law enforcement
agencies would have to wait until his term was up.
Many of these lawsuits are as yet undecided, and some may
not reach the Supreme Court until after Mr. Trump is once again a private
citizen. This would most likely mean that the Court never rules on these issues
at all and lower court rulings stand.
Here are several of the landmark cases winding their way
through the judiciary:
J. Trump v. Deutsche Bank AG, Trump v.
Vance, and Trump
v. Mazars Lower courts
ruled that President Trump must comply with a congressional subpoena for his
financial records as part of a congressional investigation. The president’s
lawyers argued that he had “temporary presidential immunity” while in office.
The cases will be heard by the Supreme Court in March. The cases deal with both
congressional and grand jury subpoenas.
on the Judiciary v. McGahnA federal judge ruled in November
that former White House counsel Don McGahn must testify in response to a
congressional subpoena. The White House had claimed that McGahn was “absolutely
immune from compelled congressional testimony.”
of the University of California v. Department of Homeland Securityand NAACP
v. TrumpThese two cases will determine whether President Trump
has the authority to end the DACA program, established as an executive action
by President Obama. The Supreme Court heard oral arguments on these cases in
v. Trump, Trump
v. Sierra Club, and State
of California v. Trump The trio of cases challenge President Trump’s
use of national emergency powers to redirect funds for construction of the
border wall. These cases will probably end up at the Supreme Court as well. So
far, the high court has allowed the Administration to continue using
reprogrammed funds in the Sierra Club case, but a federal judge in Texas
granted an injunction
to El Paso County to stop the reappropriation by the president.
Some cases have already been decided as well and the results
have been mixed. For example, the Supreme
Court ultimately upheld the president’s travel ban but only after lower
court rulings led the Administration to revise the original order. Likewise,
Trade Court upheld the president’s authority to impose tariffs for national
security reasons. On the other hand, the Supreme Court denied a Trump
Administration attempt to add a citizenship question to the census because the
Commerce Department violated the Administrative
Procedures Act, which requires honesty and openness in public rulemaking.
Now, with US-Iranian relations at a crisis stage, President
Trump is also provoking a debate on presidential war powers. Presidents have
long considered the War Powers Resolution to be unconstitutional, but Speaker
Nancy Pelosi has announced her intention to hold a vote limiting Trump’s
ability to strike Iran without congressional permission. Among the questions to
be considered is whether a tweet satisfies the president’s obligation to notify
Although President Trump has appointed many new judges,
including two Supreme Court justices, the outcome of many of these cases is not
preordained. Constitutionalist judges will vote on the law and the merits of
the case rather than partisan affiliation. On some cases, that will put them at
odds with Mr. Trump.
The Founders, fresh from a revolution in which they threw
off the rule of a king, did not intend the Constitution to set up an imperial
presidency with executive powers that were unlimited or nearly so. If courts
act to rein in the imperial presidency, Americans of both parties will