Imperial presidency

Dear Readers, George Washington famously turned down a third term as President, believing our young country would be disserved by an imperial Presidency.  President Washington may have been a national hero; he voluntarily relinquished the power scepter.  His selfless act established a centuries-long practice limiting future Presidents to two terms and underscoring the supremacy of our first branch of government, Congress.

Little by little, subsequent Presidents have eaten away at Congressional authority, exploding the Executive Branch’s power.  

Andrew Jackson fought against the congressionally authorized National Bank and used his control of the military to push an agenda of expanding our national boundaries without Congressional consent.

Abraham Lincoln seized the reigns of power as a war-time President; the United States Supreme Court slapped his hand for unsanctioned civil punishment from military courts.  He kept the nation stitched together, the cost being the further erosion of Congressional authority.  

The Progressive Era made our food and drugs safer, dismantled corporate behemoths, and gave women the right to vote.  Our lives improved, but the cost was an expansion of our bureaucracy, weakening Congress.

The Great Depression and World War II saw even greater consolidation of power around the Oval Office.  Multiple “alphabet agencies” sprang up, an experiment of concentrating authority around to make us more nimble in responding to current events.  

This trend has continued.  The Civil Rights Era empowered the Department of Justice to end Jim Crow.  Richard Nixon’s administration committed to making our environment safer and, thus, created the regulatory power of the Environmental Protection Agency.  George Walker Bush treated Congressional military authority like a rubber band and deployed our military in questionable campaigns in Iraq and Afghanistan. 

Democratic Presidents have also blasted through norms with deployments of Executive Orders.  President Obama was frustrated by glacial legislative inaction and issued a slew of them with questionable legality and having a life span of his administration.  The DACA program still barely survives lacking the firmness of law. 

President Biden learned bad habits from Obama.  He passed major bi-partisan legislation his first two years, only to resort to EO governance once Republicans seized the House.  When the bi-partisan immigration bill failed, he issued an immigration EO which, while largely successful, is not law. 

Biden’s expansive use of the pardon power was disappointing.  Pardoning his son … maybe understandable and not completely unprecedented, but tacky.  He went beyond and issued “preemptive” and “blanket” pardons for MORE family members, as well as public figures like Anthony Fauci.  This may have been legitimately reacting to President Trump’s campaign promise of retribution against his “enemies.”  Is this to what we have come?

Last year, the United States Supreme Court decided Presidents are immune from prosecution for acts within the “core function” of the office.  This means, even if a President commits an otherwise illegal act, he or she is immune from prosecution.  However, those who commit crimes, illegally directed by a rogue President, do not have such immunity.  

Enter the pardon power.  It can effectively convey immunity.  Especially, if the ability to pardon can be “blanket” and “presumptive.”  This means before any charges are brought and for ALL illegal acts.

The Supreme Court’s ruling positions a President in a tower above the law.  When it is coupled with the pardon power, the tower becomes impregnable.  A President can illegitimately issue a “core function” order and immunize functionaries with a pardon, there is no law that cannot be breached.

One of President Trump’s first post-inaugural acts was to pardon everyone convicted of the January 6^th insurrection.  This should come as no surprise, as it was a campaign promise (threat?).  These were felons convicted by a judge, jury, or by guilt plea.  

This is an abomination, as it upends the rule of law.  Yet, so were the anticipatory political pardons by President Biden.  People sent to prison, even by “Trump Judges,” have learned the lesson that if you attack our country and violently attack police officers, there are no consequences for violating the law.

Four weeks into his second, President Trump has issued (among others) EOs freezing USAID monies, (at least temporarily) other government payments to citizens, fired Inspector Generals, fired civil service protected FBI agents and officials, and suspended birthright citizenship.  Each of these “power grabs” was extra-judicial and beyond his authority.  The courts have stopped him.  Will these orders be obeyed?

We have strayed so far from the humility of George Washington almost 250 years ago.  Presidential authority needs limits or we are a lawless country.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.