How past Republicans paved the way for Trump to do whatever he wants

There’s no question that Donald Trump is uniquely terrible, both as a person and as a president.  But while his current efforts to make the entire executive branch subordinate to his vicious whims are novel in scope, they aren’t wholly without precedent.

Though even the most ardent supporters of maximal presidential authority would not have contemplated turning billionaire Elon Musk and his feral script kiddies loose into federal payment systems, past GOP efforts at creating an imperial presidency helped pave the way for Trump. 

The idea of the unitary executive—that the Constitution gives the president unfettered authority over the entire executive branch—was hatched by then-Attorney General Edwin Meese during the Reagan years.

Then, when Bill Barr was deputy attorney general under George H.W. Bush, he advised the president that he didn’t need congressional authorization to send the military into Iraq, even though the Constitution gives Congress the sole power to declare war. 

Like father like son.

When George W. Bush’s presidency rolled around, the global war on terror provided the perfect opportunity for a president to ignore laws limiting executive power. Bush’s administration was chock-full of unitary executive fans, including torture memo author John Yoo and Vice President Dick Cheney.

In a secret memo written just after 9/11, a Bush administration lawyer argued that if Bush wanted to authorize torture despite its illegality, he could set aside the law because he had the inherent constitutional authority as commander in chief.

Obviously, Trump was always going to be a big fan of the idea that the president gets to do whatever he wants, laws be damned. So when Bill Barr was angling for attorney general under Trump, he sent an unsolicited memo to Rod Rosenstein saying that the president had “complete authority to start or stop a law enforcement proceeding,” a not-at-all-subtle indication that he didn’t believe Trump had committed obstruction of justice.

Needless to say, Barr got the job and, of course, went on to spin the conclusions of the Mueller Report in such a disingenuous way that he was later chided by a federal court judge. 

Barr also wrote that it was “wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy.  He alone is the Executive branch.”

According to Barr, Congress cannot limit the president’s authority over executive branch personnel. 

So, what Trump learned from Barr in his first term was that the president can ignore laws and have sole control over the hiring and firing of everyone in the executive branch.

You’d hope such a wildly expansive view of presidential authority would trouble the legislative branch, given that it functionally turns Congress into an advisory board, but the GOP has just rolled over. Congressional Republicans don’t seem the least bit chuffed that Trump essentially shut down the U.S. Agency for International Development even though, since it was established by Congress, only Congress can abolish it. 

It would be nice if the judicial branch could be counted on to push back against this power grab. But the Supreme Court’s six conservative justices have already embraced the unitary executive theory, especially in relation to the president’s power to fire federal employees.

So who can say whether they’ll take issue with Trump’s mass firing of 17 inspectors general, even though he ignored the law requiring him to give Congress 30 days’ notice?

Will they really care that Trump’s removal of former National Labor Relations Board Chair Gwynne Wilcox was unlawful? NLRB members are insulated from arbitrary political dismissals and can only be removed for “neglect of duty or malfeasance in office.” Still, Trump fired Wilcox by saying that “heads of agencies within the Executive Branch must share the objectives of [his] administration.” 

Wilcox’s removal, complete with a statement saying it was done for an unlawful reason, seems designed to get in front of this friendly court so it can throw out a 90-year-old precedent: Humphrey’s Executor v. United States.

That case held that Franklin D. Roosevelt did not have the unlimited power to remove Federal Trade Commission members, and therefore he could only do so for reasons specified by Congress. 

Currently, the FTC and the NLRB—along with several other independent agencies like the Securities and Exchange Commission—are somewhat insulated from the churn of electoral politics in two ways that Cabinet department heads are not.

First, commissioners are typically appointed in a fashion that spans multiple presidential terms. NLRB members, for example, are appointed to five-year terms, with the term of one member expiring each year. Presidents will always have an opportunity to appoint a member but will also always have members serving who they did not appoint.

Next, presidents are generally limited in their ability to remove members of independent agencies, with Congress dictating what is and is not permissible.  

Unitary executive conservatives want Humphrey’s gone because they want to eliminate independent agencies, which are a thorn in the side of an imperial president, a restriction on his hiring and firing authority, and a limitation on how much power he can exert.

If the Supreme Court were to uphold Wilcox’s firing, it would likely be the death knell for any congressional restrictions on removal, which would in turn be the death knell for the agency’s independence. 

There’s another reason to be cynical about this Supreme Court taking meaningful steps to limit Trump’s power.

Though the 6-3 decision that gave Trump broad and unprecedented immunity from prosecution didn’t explicitly rely on the unitary executive theory, it did wax rhapsodic about the president’s “exclusive constitutional authority” and how he “alone composes a branch of government.” 

There’s no question that some of Trump’s actions will be a bridge too far, even for this court.

But while the court’s right-wing majority might nibble around the edges, rapping Trump’s knuckles here and there, it’s unlikely to push back too hard. After all, they want the same thing Trump does: The ability to force an extremely conservative worldview on the rest of us.  

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