“Iam Your Warrior , Iam You Justice" [Donald Trump]

 

“I am your warrior, I am your justice,” Donald Trump told the crowd at the Conservative Political Action Conference in National Harbor, Md., on March 4. “And for those who have been wronged and betrayed, I am your retribution.”

How much power would Trump have in a second term to enact his agenda of revenge?

I asked Laurence H. Tribe, a professor of constitutional law at Harvard, how free Trump would be to pursue his draconian plan.

Tribe replied by email:

There is little doubt that Donald Trump could impose authoritarian policies that endanger dissent, erase the requirements that ensure at least a modicum of the consent of the governed, and are downright dictatorial while acting entirely within the literal scope of the law although, needless to say, in flagrant defiance of its spirit. Neither the Constitution’s text nor the language of the federal statutes and regulations in force create guardrails that Trump would need to crash through in a way that courts hewing to the text would feel an obligation to prevent or to redress.

Congress and the courts have granted the president powers that in Trump’s hands could fundamentally weaken rights and freedoms most Americans believe are secure and guaranteed under law.

Tribe continued:

Many of the statutes Congress has enacted, especially in the post-World War II era, delegate to any sitting president such extraordinary powers to declare “national emergencies” when, in their own unreviewable judgment, the “national interest” or the “national security” warrants, and give presidential declarations of that kind the power to trigger such sweeping executive authorities that a president could comfortably indulge authoritarian aspirations of demoting or detaining all those who stand in their way or of seizing property or otherwise restricting personal liberty and the rights of private citizens and organizations without raising a legal eyebrow.

Jack Balkin, a professor at Yale Law School, argued that the same lack of restraint applies if a president wants to initiate criminal investigations of his or her opponents and critics. In an email replying to my queries, Balkin wrote:

A president giving orders to an obedient Justice Department can exact revenge on political enemies and chill political opposition. It is not even necessary to send anyone to prison. For many people and organizations, the costs of defending a criminal investigation and prosecution can be ruinous and a sufficient deterrent. Moreover, if the public merely believed that the president was using the intelligence services and the I.R.S. to investigate political opponents, this could also chill opposition.

Balkin noted that after Watergate, “the Justice Department adopted internal guidelines to prevent presidents from abusing the prosecution power, but the president, as head of the executive branch, can direct his subordinates to alter these guidelines.”

Former President Trump, Balkin wrote,

has declared the press to be the enemy of the people and so such prosecutions might even be popular among his supporters. Second, a leader who wishes to amass power and avoid accountability benefits from making the press docile and afraid of retribution. Once again, even if the government never obtains a criminal conviction, the chilling effect on the press can be significant.

Elizabeth Goitein, senior director of the Liberty and National Security Program at N.Y.U.’s Brennan Center for Justice, is an expert on emergency powers delegated to the president. She replied by email to my questions concerning presidential powers:

The Brennan Center has identified more than 130 statutory provisions that may be invoked when the president declares a “national emergency.” The president has near-total discretion to declare such an emergency, and he may renew the declaration every year without limit.

One of the most worrisome statutory provisions, given Trump’s threats to deploy the military in large cities, Goitein continued, “is the Insurrection Act, which was intended to allow the president to deploy federal troops domestically to quell insurrections or civil unrest that overwhelms civilian authorities, or to enforce civil rights laws against obstruction.”

The law, she wrote,

is written in such broad and archaic terms (it was last amended 150 years ago) that it places few clear limits on the president’s ability to deploy troops to act as a domestic police force. And what limits can be inferred are effectively unenforceable, as the Supreme Court has held that the statute does not, on its face, permit judicial review of a president’s decision to deploy. Similarly, Congress has no role in approving deployments, leaving this powerful authority with no effective checks against abuse.

Goitein identified three other laws that are particularly concerning:

A provision of the Communications Act allows the president to shut down or take over radio communications facilities in a national emergency. If the president declares “a threat of war,” he can also shut down or take over wire communications facilities. Today, it could be interpreted to give the president control over U.S.-based internet traffic.

The International Emergency Economic Powers Act allows the president to freeze any asset (including those of Americans) or prevent any financial transaction with a designated person or entity (including Americans) if he deems it necessary to address a threat emanating at least partially from overseas.

One statute permits the Transportation Security Administration, during a national emergency, to carry out such duties and exercise such powers “relating to transportation during a national emergency” as the Secretary of Homeland Security shall prescribe. This provision is so vague and ill-defined, it could conceivably authorize an administration to exert compete control over domestic transportation — including shutting it down entirely — during a national emergency.

These concerns are held by both Democrats and Republicans.

Michael W. McConnell, who served as a George W. Bush appointee to the United States Court of Appeals for the 10th Circuit and is now director of the Stanford Constitutional Law Center, shared some of Goitein’s qualms, writing by email:

The Emergencies Act is dangerously sweeping and should be reconsidered. At the time it was passed, Congress retained a congressional veto, but congressional vetoes were subsequently declared unconstitutional. Now there is no mechanism for congressional override except by passage of ordinary legislation, which is subject to presidential veto and thus politically almost impossible.

One of Trump’s most startling proposals is to create a new category of federal employee known as Schedule F. It would eliminate civil service protections against arbitrary firing and other punishments for an estimated 50,000 or more elite federal workers. Their jobs would, in effect, become political patronage appointments. (Mr. Trump signed an executive order establishing Schedule F near the end of his presidency, but President Biden rescinded it.)

The Office of Personnel Management described Schedule F as directing federal agencies “to move potentially large swaths of career employees into a new ‘at will’ status that would purportedly strip them of civil service protection.”

Experts in federal employment law disagree over whether, in a second term, Trump would have the power to initiate a radical change like Schedule F without congressional approval.

Anne Joseph O’Connell, a law professor at Stanford whose research focuses on administrative law and the federal bureaucracy, wrote by email that Trump may have the authority to create a new Schedule F. But, she added, the scope of the change in traditional practices called for by the proposal may make it subject to judicial review.