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.