Trump will be frustrated by limitation on power

Contrary to popular belief, the Supreme Court is not the only branch with the power to interpret the Constitution.

  • Thursday, January 19, 2017 11:27am
  • Opinion

Contrary to popular belief, the Supreme Court is not the only branch with the power to interpret the Constitution. Both Congress and the president have the power to do so as well. And both branches often do.

The powers of the president to interpret the Constitution are manifested by two examples: executive orders and signing statements. Both have created controversy in the past and will undoubtedly create more under the Trump administration.

An executive order is, according to “The Free Dictionary” by Farley: “A presidential policy directive that implements or interprets Federal Statute, a constitutional provision, or a treaty.”

A signing statement is: “a written pronouncement issued by the President of the United States upon the signing of a bill into law.” It is a commentary on a law – a presidential interpretation of the law.

According to Farley, executive orders come from laws passed by Congress and from the Constitution. They do not require Congressional approval or public debate.

Most orders are mundane, but some, like FDR’s decision to intern Japanese-Americans after the Pearl Harbor attack and Jimmy Carter’s pardoning of Vietnam War draft dodgers, created firestorms in the nation.

Most recently, outgoing President Barack Obama wrote an executive order sanctioning Russian individuals and organizations for attempting to influence the presidential election by their hacks. That decision will put President-elect Trump in a difficult position with Congressional members of his own party, depending on whether he deletes or retains Obama’s order.

An example of a controversial signing statement of past presidents was George W. Bush’s decision to interpret laws that the American Bar Association stated, “undermine the rule of law and our constitutional system of separation of powers” (Farley). President Bush chose to enforce parts of the laws and ignore other parts, drawing ire from many on both sides of the aisle for interpreting the Constitution beyond his authority. One of the issues of dispute was the handling of terrorist detainees during confinement by his administration.

During the 2008 presidential election campaign, candidate Obama stated categorically that he would not run around Congressional authority. However, there were many times when Obama’s signing statements created controversy and congressional antipathy.

Once in office, President Obama, reacting to his predecessor, George W. Bush, modified his campaign promise with the statement: “In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded” (Farley). Note that the president would determine (interpret) whether a law passed by Congress was constitutional or not, but he would be more careful than President Bush.

President-elect Trump has never served in government. He is not a lawyer by profession, nor does he understand the intricacies of constitutional law as former constitutional law professor Obama did.

Expect Trump to find the restrictions put upon his power to be extremely frustrating for him. The presidency is a job surrounded and engulfed by myriad historical and legal precedents. Trump will likely become very impatient with all the facts of the law and the Constitution that he will soon encounter. Based upon his reactions thus far, he will tend to decide which facts are true and which can be dismissed.

Trump and Obama differ dramatically in their leadership styles. Obama’s leadership style is one of caution and thoughtfulness. President-elect Trump’s style is far more authoritarian and based more on intuition, unpredictability and gut reaction.

Members of his own party may find Trump’s perspective of his presidential powers under the Constitution more of a strain for them than the actions by Obama. Expect the new president to make a great deal of use of executive orders and signing statements. This new president will stretch the limits of his power to interpret the Constitution farther than any president since Andrew Jackson, our last populist president.

More in Opinion

Supreme Court resets the playing field

The ruling on the Masterpiece Bakery v. Colorado Civil Rights Commission case wasn’t a win for the right or a loss for the left; it’s a chance to do things right the second time around.

Supreme Court ruling shows sanity, moderation

The 14th Amendment equal protection clause does not negate the First Amendment religious freedom clause.

Initiative signatures are the new greenbacks

As of Wednesday, June 6, petitions for four statewide initiatives were getting circulated.

Public record battle brings in a mediator

A taskforce is also being put together, but it’s not clear who will be on it.

One almond latte, if you please | Wally’s World

There was a time in the distant past when a friend and… Continue reading

Eyman risking retirement funds on car tab initiative

Will the $500,000 investment be enough to get the initiative on a ballot?

U.S. isn’t the only nation flirting with trade wars

There’s another brewing between Alberta and British Columbia.

I wish I could stay in Enumclaw | Guest Columnist

There is a kindness and decency and desire to be a community in Enumclaw.

We live in frightening times

Our country is being torn apart from limb to limb, coast to coast.

Voting habits tied to feelings of security

The dangers of authoritarianism are a far greater threat to the nation than seeing rising racial equality and religious diversity brought about by immigration.

Gun rights advocates won the battle, but may lose the war

NRA leaders will need to decide if it’s worth putting resources into a fight in a Left Coast state versus investing in efforts to keep Republicans in control of Congress to prevent ideas like this initiative from becoming federal law.

Trump not accomplishing as much as supporters think

This is in response to Craig Chilton’s letter claiming Trump’s presidency is not a mistake because of all of his “accomplishments,” 81 signed pieces of legislation.