Axios Bungles the ‘Imperial Presidency’

Axios has published a report this morning titled, “Behind the Curtain: The imperial presidency in waiting,” in which it proposes that, if he is reelected, Donald Trump “promises an unabashedly imperial presidency.” And I’m sorry to record that it’s . . . well, it’s almost entirely garbage.

I truly write that more in sorrow than in anger. We really do need to limit the power of the presidency, and, if it takes fear of Donald Trump to do it, I’m all in. Certainly, that fear is not imagined. Like Barack Obama before him, and Joe Biden after him, Trump was guilty of attempting to usurp Congress’s lawmaking powers, and, as I have written and said 359,701 times by now, he should have been impeached in January 2021 for interfering with Congress. But, as quickly becomes clear, Axios does not actually understand the problem that it believes itself to be warning about, and, as a result, those warnings fall flat.

The term “imperial presidency” was coined by Arthur M. Schlesinger Jr., and it signifies two things: (1) the enormous growth of the president’s war powers over time, and (2) the president’s intrusion into areas that are supposed to be managed by Congress. Schlesinger was horribly biased as an analyst, and prior to his anti-imperial phase, he was one of the country’s most vocal champions of the presidency, but the phenomenon he described was real — and, if anything, it has got worse since he published his book in 1973. Unfortunately, though, what Axios includes as supposed examples of Schlesinger’s theory are not, in fact, examples of Schlesinger’s theory.

Instead, most of what Axios complains about are either core presidential powers that might be used in ways of which it disapproves, or powers that have been granted to the president by Congress that it would prefer he didn’t use. And when it does hit upon an actual problem, it mixes it in with the inoffensive and thereby muddies its case. I suspect that this is because Axios does not want to acknowledge that the real issue we face — the usurpation of Congress’s lawmaking power by successive presidents — puts both Barack Obama and Joe Biden in an extremely unflattering light, too, but, whatever the cause, it’s a missed opportunity.

Let’s take those complaints one by one.

1. A re-elected Trump would quickly set up vast camps and deport millions of people in the U.S. illegally. He could invoke the Insurrection Act and use troops to lock down the southern border.

This is not “imperial.” One might dislike it as policy, but it’s not “imperial” because Congress has indisputably granted the executive branch the authority — actually, the instruction — to detain and deport illegal immigrants. Bill Clinton deported illegal immigrants. George W. Bush deported illegal immigrants. Barack Obama deported illegal immigrants — and bragged about it. Joe Biden has deported illegal immigrants, albeit not enough. The question with Trump is thus not of the power to deport, but of the scale of its use. If, in a second term, Trump were to deport “millions” of illegal immigrants, he would not be encroaching on congressional law, but enforcing it.

The same is true of invoking the Insurrection Act, which, as its name suggests, is an “act” of Congress. Certainly, there are circumstances in which such an invocation would be ultra vires. But it’s not per se “imperial” to use it — or, at least, it’s not more imperial than it was when President Hayes used it to deal with railroad strikes, President Franklin Roosevelt used it to suppress riots, President Eisenhower used it to enforce desegregation, President George H. W. Bush used it during both Hurricane Hugo and the Los Angeles riots, etc. As a matter of fact, there is a close historical analog to what Axios suggests. In May 1882, President Chester Arthur invoked the Insurrection Act to deal with gangs that were causing chaos in the Arizona territory. Were, say, the governor of Texas to request assistance with the influx at the southern border, it is hard to see how it would be “imperial” for the federal government to acquiesce.

2. In Washington, Trump would move to fire potentially tens of thousands of civil servants using a controversial interpretation of law and procedure. He’d replace many of them with pre-vetted loyalists.

This is not “imperial” either, because it involves the executive branch running the executive branch. Per Article II, “The executive power shall be vested in a President of the United States of America.” This means that the president is in control of the executive branch from top to bottom, and, indeed, that he has to be in control of the executive branch from top to bottom, because, if he’s not, then the executive branch exists independently of our democracy. This is not some kooky theory. It is how the United States worked until at least the Civil War, and it used to have a name: the “spoils system.” As I wrote last time this was raised:

I remain astonished that this is controversial, or that it ever became so. If the president cannot fire everyone in the executive branch — and fire anyone in the executive branch for any reason whatsoever — then he is not in control of the executive branch, is he? Coppins suggests that to allow the president to control who works for him is to render “the people in these roles political appointees.” And? They are political appointees. Providing that it is consistent with the will of the democratically ratified Constitution and of the other democratic branch (Congress), all the staff that work in the executive branch are there to execute the will of the guy who was elected. There may be good practical reasons for our presidents to wish to retain a good chunk of the civil service between administrations, and there are certainly solid historical explanations for why we developed a civil service whose low-level, non-policy jobs aren’t doled out as rewards for partisans each time the executive branch changes hands. But that is a wholly discrete matter from whether those presidents are obliged to keep any employees on, which they are not, and which, within the logic of our constitutional framework, they cannot be. A civil service that exists independently of the elected leader of the executive branch is not a part of the executive branch, but separate from it. It is a fourth branch of government. Or, to use a term I don’t particularly like, it is a “deep state.”

Next, Axios suggests:

3. He’d centralize power over the Justice Department, historically an independent check on presidential power. He plans to nominate a trusted loyalist for attorney general, and has threatened to target and even imprison critics. He could demand the federal cases against him cease immediately.

Here Axios casually combines normal and legal behavior about which nobody should be worried with insane and illegal behavior about which everyone should be worried.

Most of this fits into the first category. The “Justice Department” cannot be “an independent check on presidential power,” because, if it were, we would have an unelected fourth branch of government exercising power that had been allocated nowhere in the Constitution. There is nothing wrong with the president choosing a “trusted loyalist” to work for him — providing, of course, that the Senate is happy with the choice. (How, I wonder, should we describe Merrick Garland?) And, while it would look bad, Trump obviously has the power to “demand the federal cases against him cease immediately,” because those cases are being executed under his name.

By contrast, “target and even imprison critics” is so far beyond the proper role of the presidency that it isn’t imperial so much as it’s tyrannical. The remedy should that happen is — and ought to be — impeachment. Really, the whole piece should have been about this problem, and it should have included an acknowledgement that President Biden, too, has tried to imprison his own cultural enemies, including a bunch of pro-life protesters and the Texas Children’s Hospital whistleblower.

4. Many of the Jan. 6 convicts could be pardoned — a promise Trump has made at campaign rallies, where he hails them as patriots, not criminals. Investigations of the Bidens would begin.

This isn’t “imperial,” either. Not only does the presidency exclusively enjoy the Constitution’s pardon power, but that pardon power cannot be reviewed or interfered with by the other branches. I do not think that the January 6 convicts should be pardoned. But that does not change the fact that pardoning them would be entirely within the president’s authority.

As for “investigating the Bidens”? That would depend on the investigation. The Biden administration has investigated — and charged! — Donald Trump. Is that “imperial”? Axios doesn’t mention this, but Congress is already investigating the Bidens. If Trump were to launch a frivolous investigation into Joe Biden and his family, that would, indeed, be a problem. But the problem wouldn’t be that the move was “imperial” — the power to investigate exists in Article II — but that he was abusing that power for political purposes. That distinction matters.

5. Trump says he’d slap 10% tariffs on most imported goods, igniting a possible trade war and risking short-term inflation. He argues this would give him leverage to create better trade terms to benefit consumers.

That is an insane policy proposal, but, unfortunately, the laws that Trump would use to achieve it were passed by Congress, have never been struck down in the courts, and have been used by a host of other presidents in recent history. There is an argument to be made that tariffs are the sole preserve of the legislature, and that it thus violates the spirit of our constitutional order for the president to be making such sweeping changes to their rates. But that’s an argument that can be made by people like me, who want to limit (or end) Congress’s delegations of power. It is not an argument that can be made by people who have defended every presidential overreach of the last 30 years. Frankly, it represents the height of partisan bias to complain that President A might use tariff powers that he’s unequivocally been granted while staying silent while Presidents B and C claim sweeping powers that they have never been given at all. In the last three years, President Biden has tried to steal a whole host of lawmaking powers — often while knowing full well that there was no legal rationale beneath his bluster. Inter alia, he’s tried to rewrite federal gun-control statutes, to impose a national eviction moratorium, to demand a vaccine mandate, to “forgive” hundreds of billions of dollars in student loans, and to alter the anti-pollution laws, and, when he did all this, Axios shrugged. It is absurd — yes, absurd — for it to now complain about the use of delegated tariff powers that have been used by every president we’ve had during the last 50 years.

6. Conversation would intensify about when Justices Clarence Thomas, 76, and Sam Alito, 74, would retire.

Nominating Supreme Court justices is a core presidential power. Unless Trump intends to bypass the Senate confirmation process, I have no idea why this is in here.

If I sound frustrated, it’s because I am. I’ve lived in America for 13 years now, and I’ve spent that entire time complaining about executive overreach. This has not been a partisan exercise: I complained about it when Obama was president, I complained about it when Trump was president, and I am complaining about it now that Biden is president. If Trump is president again, I will complain about it then, too. Throughout this period, I’ve observed that the press only seems to care about this topic when a Republican is president, with the effect that the general public now thinks that only Republican presidents step out of their box. And now Axios comes along, and not only limits its criticisms to the guy who might be president in the future — not the guy who currently is — but completely mischaracterizes the problem! Aaarrrgghhh.