Civil Liberties and the Post-Trump Constitution: Thinking Beyond Executive Power
By: Harry Blain
Tags: Cuny Graduate Center, Congress, Constitutional Law, Donald Trump, Civil Liberties

Photo Credit: Stars and Stripes

Generations of scholars have told us that the U.S. presidency is approaching “imperial” heights — and with good reason.

In relatively recent history, executive authority has underwritten wars, internment camps, assassinations, torture, complex diplomatic agreements, and diversions of government spending. Presidents have deployed their appointment and removal powers to control the federal bureaucracy. They have also discovered powers that the constitution apparently forgot to mention, including the privilege of withholding information from congressional committees and the right to declare national emergencies.

To many observers, these are menacing trends, particularly for our civil liberties. The framers of our constitution created a separation of powers precisely because they feared the emergence of a kingly despot. Yet this vision has crumbled under the weight of endless wars and a near-permanent state of national emergency.

Although history and common sense lend support to these concerns, my research argues that we have focused too much on executive power, distracting us from the complex and varied sources of political repression in the United States. Reining in the presidency — an increasingly popular post-Trump prescription for robust rights and liberties — is ultimately insufficient.

To be sure, in his single-term administration, Trump wielded executive power dangerously, as in his brutal and largely unilateral economic warfare against Iran, or in his notoriously racist travel ban.

At other times, however, he spectacularly flopped, issuing unenforceable executive orders, losing easily winnable court cases, and, of course, failing to cheat his way to a second term. Indeed, the miserable and faintly comical final days of Trump in the White House don’t make the presidency look particularly respectable, let alone imperial.

Was Trump just astronomically incompetent? Or do his difficulties reflect more stubborn barriers to presidential action? While Trump’s incompetence truly was extraordinary, I side with the latter view. Building on the work of Andrew Polsky, my research focuses on presidential weakness in one of the commander-in-chief’s surest policy domains: war and peace.

Contrary to fears of executive despotism, I find ample historical evidence of Congress, rather than the president, orchestrating the suppression of civil liberties during and after major American wars.

A cantankerous House of Representatives tried to impeach Woodrow Wilson’s Assistant Labor Secretary because of his resistance to mass deportations in the aftermath of World War I. A “House Un-American Activities Committee” prompted a purge of the federal government after World War II. Two-thirds of the House and the Senate overturned a presidential veto of a bill authorizing internment camps at the outset of the Korean War. The ongoing “War on Terror” has seen Congress obstruct the closure of Guantanamo Bay prison, deny federal courts the right to review habeas corpus petitions, and expand government wiretapping programs.

Far from merely deferring and delegating to the executive, legislators throughout U.S. history have vigorously pursued their own repressive measures under cover of crises. Along with law-making, they have used the searing publicity of investigations backed by subpoenas, the blunt effectiveness of funding and defunding, and subtler alliances with bureaucrats and interest groups to carry out aggressive assaults on free speech, due process, and privacy.

A stark case study can be found in the decade following WWII, when a hot war bled into a cold one, creating a strange state of not-quite-war that was notoriously exploited by Wisconsin Senator Joe McCarthy.

But the man was only one part of the movement. The 1947 Taft Hartley Act — which attacked the political associations of labor unions — preceded McCarthy’s personal crusade. Members of the House Un-American Activities Committee (HUAC) tried to withhold salaries from leftists-in-government back in 1943, subpoenas and contempt-of-Congress citations started hitting Communist “front groups” in 1946, and collaboration among HUAC, the Federal Bureau of Investigation, the American Legion, and the American Chamber of Commerce was fully in motion by the time Senator McCarthy made his first claims of Communist subversion in 1950.

As Josh Chafetz reminds us, Congress also can use its diverse toolkit in defense of liberties. Alaska Senator Mike Gravel leveraged his (qualified) legal immunity to read the Pentagon Papers into the Congressional Record, aiding journalists in their fight with a vengeful and censorious Nixon administration. Idaho Senator Frank Church oversaw the nation’s most searching inquiry into the national security state. More recently, the Senate condemned the Central Intelligence Agency’s torture programs, while both houses constrained National Security Agency mass surveillance through the 2015 Freedom Act.

How can we ensure that Congress enlarges, and doesn’t curtail, civil liberties in the post-Trump era? My research does not lend itself to easy prescriptions, bluntly concluding that when we’re at war, legislative checks on the executive are no remedy for repression.

Instead, the remedy must go to the source: endless war must end. Ultimately, Congress may be best-equipped to execute this mission, probably through the old-fashioned power of de-funding, rather than a jazzy new War Powers Resolution. Here, I find common ground with critics of the imperial presidency, who have bemoaned Congress’s abdication of its foreign policy responsibilities.

Equally, however, I won’t protest President Trump’s clumsy eleventh-hour attempts to extract the United States from its intractable global entanglements. Substance matters more than process. Over the long-term, a dent in the American war machine — whatever its source — presents some semblance of hope for American civil liberties.