Executive Power Run Amok

[Weird Tolkienish Figure]

https://www.nytimes.com/2017/02/06/opinion/executive-power-run-amok.html

Berkeley, Calif. — Faced with President Trump’s executive orders suspending immigration from several Muslim nations and ordering the building of a border wall, and his threats to terminate the North American Free Trade Agreement, even Alexander Hamilton, our nation’s most ardent proponent of executive power, would be worried by now.

[endicom]

Their eyes had seen the glory of the coming of Barack
With pen and phone and styrofoam, deplorables would shock


It's different now. Cuz Trump.

[Cripplecreek]

In the days when congress was only in session for a few months every year, George Washington only signed 8 executive orders. Most were administrative issues that had zero impact on the lives of the average American citizen. (Like setting the physical boundaries of the District of Columbia)

He used an executive order to call up troops for the Whiskey rebellion but it was an issue that couldn't wait for months for congress to arrive.

One EO was more of an announcement that the US government would be honoring the treaties signed with indians.

Only federalist constitutionalism can save America.

[DiogenesLamp]

https://www.nytimes.com/2017/02/06/opinion/executive-power-run-amok.html

If you need to go to the New York Times to support your point,   you point is simply wrong. 

[Weird Tolkienish Figure]

If you need to go to the New York Times to support your point,   you point is simply wrong.

It's John Yoo, dummy. Google him if you're that ignorant.

[Cripplecreek]

It's John Woo, dummy. Google him if you're that ignorant.

The constant bashing of the media is all part of the long term goal of censoring the media and the Trump Monkeys are all for it because they're too stupid to realize that the democrats will happily silence media they disagree with.

Trump has been inciting the mob this morning with tweetrants about fake news and now fake polls.

[Maj. Bill Martin]

I really don't get this.  Congress expressly gave to the President the power to limit/restrict immigration, and he's exercising it.  That's exactly what he's supposed to be doing.  It's a far cry from Obama refusing to enforce valid laws that were actually on the books, which is surely something Congress did not intend.

And in terms of NAFTA...I don't recall the media being upset when Jimmy Carter unilaterally abrogated the Sino-American Mutual Defense Treaty with Taiwan in 1979.  And the case for the President's right to withdraw from NAFTA is even stronger than the argument Carter had, because of the Congressional delegation of trade power to the President in the Trade Act of 1974.

[Cripplecreek]

It's John Yoo, dummy. Google him if you're that ignorant.

Sounds like John Yoo is very consistent.

In 1998 Yoo criticized what he characterized as an imperial use of executive power by the Clinton administration. Yoo has defended executive privilege, but only to protect national security, diplomatic, and military secrets. In an opinion piece in the WSJ, he criticized the Clinton administration for misusing the privilege to protect the personal, rather than official, activities of the President, such as in the Monica Lewinsky affair. At the time, Yoo also criticized President Clinton for contemplating defiance of a judicial order. He suggested that Presidents could act in conflict with the Supreme Court, but that such measures were justified only during emergencies.

In 2000 Yoo strongly criticized what he viewed as the Clinton administration's use of powers of what he termed the "Imperial Presidency". He said it undermined "democratic accountability and respect for the law". Yet, Yoo has defended President Clinton, for his decision to use force abroad without congressional authorization. He wrote in the Wall Street Journal on March 15, 1999, that Clinton's decision to attack Serbia was constitutional. He then criticized Democrats in Congress for not suing Clinton as they had sued presidents Bush and Reagan to stop the use of force abroad.

https://en.wikipedia.org/wiki/John_Yoo#In_the_Clinton_administration

[Maj. Bill Martin]

What specific Executive power is Trump using that constitutes "running amok"?  I truly don't understand how he's not acting directly under the auspices of delegated Congressional authority in terms of immigration.  People may not like what he's doing, or may think it is dumb.  But I just don't see him taking power that isn't is.

[DiogenesLamp]

It's John Yoo, dummy. Google him if you're that ignorant.

Someone whining about Executive overreach after 8 years of Obama?   No thanks.   That is about the stupidest thing i've heard so far this year. 

[Weird Tolkienish Figure]

I really don't get this.  Congress expressly gave to the President the power to limit/restrict immigration, and he's exercising it.  That's exactly what he's supposed to be doing.  It's a far cry from Obama refusing to enforce valid laws that were actually on the books, which is surely something Congress did not intend.

And in terms of NAFTA...I don't recall the media being upset when Jimmy Carter unilaterally abrogated the Sino-American Mutual Defense Treaty with Taiwan in 1979.  And the case for the President's right to withdraw from NAFTA is even stronger than the argument Carter had, because of the Congressional delegation of trade power to the President in the Trade Act of 1974.

Trump's bark is worse than his bite in this area, so far, but these are some good passages:

While my robust vision of the presidency supports some of Mr. Trump’s early executive acts — presidents have the power to terminate international agreements like the Trans-Pacific Partnership, for example — others are more dubious. Take his order to build a wall along the border with Mexico, and his suggestion that he will tax Mexican imports or currency transfers to pay for it. The president has no constitutional authority over border control, which the Supreme Court has long found rests in the hands of Congress. Under Article I of the Constitution, only Congress can fund the construction of a wall, a fence or even a walking path along the border. And the president cannot slap a tax or tariff on Mexican imports without Congress.
Nor can Mr. Trump pull the United States out of Nafta, because Congress made the deal with Mexico and Canada by statute. Presidents have no authority to cancel tariff and trade laws unilaterally.
Immigration has driven Mr. Trump even deeper into the constitutional thickets. Even though his executive order halting immigration from seven Muslim nations makes for bad policy, I believe it falls within the law. But after the order was issued, his adviser Rudolph Giuliani disclosed that Mr. Trump had initially asked for “a Muslim ban,” which would most likely violate the Constitution’s protection for freedom of religion or its prohibition on the state establishment of religion, or both — no mean feat. Had Mr. Trump taken advantage of the resources of the executive branch as a whole, not just a few White House advisers, he would not have rushed out an ill-conceived policy made vulnerable to judicial challenge.

[DiogenesLamp]

The constant bashing of the media is all part of the long term goal of censoring the media and the Trump Monkeys are all for it because they're too stupid to realize that the democrats will happily silence media they disagree with.

Smashing the left wing control of the information distribution system is about the most important issue upon which conservatives should be focused.   


The Media gave us Clinton and Obama.   Till conservatives have equal say on the broadcasting networks,  we should be trying to destroy the existing media system. 


The "media"   is the Air force of the left,  and we should be working at shooting it down. 

[skeeter]

Someone whining about Executive overreach after 8 years of Obama?   No thanks.   That is about the stupidest thing i've heard so far this year.

Stay tuned - I'm sure there'll be more.

[DiogenesLamp]

What specific Executive power is Trump using that constitutes "running amok"?  I truly don't understand how he's not acting directly under the auspices of delegated Congressional authority in terms of immigration.  People may not like what he's doing, or may think it is dumb.  But I just don't see him taking power that isn't is.

This is a sane view of the situation.   Yes,  the President has absolute authority to regulate entry into the nation for security reasons.    The left is just throwing another temper tantrum because they aren't getting their way.   

[Maj. Bill Martin]

Trump's bark is worse than his bite in this area, so far, but these are some good passages:

Take his order to build a wall along the border with Mexico, and his suggestion that he will tax Mexican imports or currency transfers to pay for it. The president has no constitutional authority over border control, which the Supreme Court has long found rests in the hands of Congress. Under Article I of the Constitution, only Congress can fund the construction of a wall, a fence or even a walking path along the border. And the president cannot slap a tax or tariff on Mexican imports without Congress.

There are three problems with this.  First, Congress actually did pass a law authorizing a border wall -- it's still on the books.

Second, the President does have some "constitutional authority over border control" -- in fact, it is a purely Executive responsibility/duty to enforce the laws already on the books that prohibit illegal immigration.  It was Obama's refusal to enforce those valid laws that was more constitutionally suspect.  So that's kind of a bizarre statement to make in the first place.

And third, The President can impose some tariffs without specific Congressional approval because Congress already gave him that authority years ago (see below).  But the President didn't even say that he wasn't going to ask Congress for help.  Presidents commonly promise to do things, and it is implied that they will ask Congress to support them where necessary.  In fact, Trump is already working with Congress to fund the building of the wall, so I don't see the basis for the argument that he's trying to do it without Congress.

http://www.usatoday.com/story/news/politics/2017/01/26/congress-consider-up-15-billion-border-wall-gop-leaders-say/97078502/

Nor can Mr. Trump pull the United States out of Nafta, because Congress made the deal with Mexico and Canada by statute. Presidents have no authority to cancel tariff and trade laws unilaterally.

I'm not so sure about that.

While I’ve heard politicians claim the president can’t change or withdraw from trade agreements that Congress has ratified, Warren Maruyama doesn’t agree. And he should know. He served on U.S. Trade Representative (USTR) Clayton Yeutter’s staff in negotiating the U.S.-Canadian treaty that was a precursor treaty for NAFTA. Under President George W. Bush, he was on the White House policy staff when NAFTA was being negotiated and later was USTR general counsel under Trade Representative Susan Schwab. His current law portfolio involves free trade, WTO, TPP and TTIP for a major Washington, D.C. law firm.

In general, Maruyama says Congress has delegated broad authority to the president to withdraw from trade agreements and to impose higher tariffs for various reasons.  Section 301 of the Trade Act of 1974 gives the President -- specifically -- authority to punish countries engaging in unfair trade.

The law that gives the U.S. president the authority to negotiate free trade agreements is the Trade Act of 1974, and Section 125 of that act gives the president what is commonly referred to as “termination and withdrawal authority.” Section 125a requires the U.S. to have power to withdraw from every trade agreement after appropriate notice — usually six months. Section 125b allows the president to revoke previous tariff reductions and Section 125c gives the president authority to proclaim higher tariffs within certain limits.
The bottom line, says Maruyama is if Trump wants to terminate NAFTA, he can.

Section 301 of the 1974 Act gives the U.S. trade representative broad authority to respond to unfair trade practices or agreement violations, or an action that is “unreasonable or discriminatory and burdens or restricts U.S. commerce.” The president can direct the response. Which means the president could direct the USTR to impose a 45 per cent tariff on certain Chinese goods, Maruyama said.

http://www.canadiancattlemen.ca/2016/09/01/can-a-president-sink-nafta/

That's not an outlier view, either:

http://money.cnn.com/2016/07/06/news/economy/trump-nafta/index.html

http://opiniojuris.org/2016/03/11/can-president-trumpsanders-withdraw-the-u-s-from-nafta-and-the-wto/

In any case, that issue essentially was addressed by the Supreme Court more than 35 years ago.  In 1979, Carter withdrew unilaterally from our treaty with Taiwan, claiming as his authority a provision in the treaty that gave either party the right to withdraw with one year's notice.  That's analogous to the 6 month notice in NAFTA.  Republicans sued, claiming he didn't have that authority, and that Congress had to consent.

The Supreme Court refused to address the dispute, holding that it was a political question.  So, Carter's unilateral withdrawal from that treaty stood.  Trump's position here would be even stronger than Carter's because of the delegation of power contained in the Trade Act of 1978.

I'm not saying it would be smart to do that - I don't think it would be.  But I also don't think it's some unprecedented case of Executive Power running amok.

[Weird Tolkienish Figure]

There are three problems with this.  First, Congress actually did pass a law authorizing a border wall -- it's still on the books.

Second, the President does have some "constitutional authority over border control" -- in fact, it is a purely Executive responsibility/duty to enforce the laws already on the books that prohibit illegal immigration.  It was Obama's refusal to enforce those valid laws that was more constitutionally suspect.  So that's kind of a bizarre statement to make in the first place.

And third, The President can impose some tariffs without specific Congressional approval because Congress already gave him that authority years ago (see below).  But the President didn't even say that he wasn't going to ask Congress for help.  Presidents commonly promise to do things, and it is implied that they will ask Congress to support them where necessary.  I don't see why the implied assistance of Congress where Constitutionally required should be ignored in Trump's case.

While I’ve heard politicians claim the president can’t change or withdraw from trade agreements that Congress has ratified, Warren Maruyama doesn’t agree. And he should know. He served on U.S. Trade Representative (USTR) Clayton Yeutter’s staff in negotiating the U.S.-Canadian treaty that was a precursor treaty for NAFTA. Under President George W. Bush, he was on the White House policy staff when NAFTA was being negotiated and later was USTR general counsel under Trade Representative Susan Schwab. His current law portfolio involves free trade, WTO, TPP and TTIP for a major Washington, D.C. law firm.

In general, Maruyama says Congress has delegated broad authority to the president to withdraw from trade agreements and to impose higher tariffs for various reasons.  Section 301 of the Trade Act of 1974 gives the President -- specifically -- authority to punish countries engaging in unfair trade.

The law that gives the U.S. president the authority to negotiate free trade agreements is the Trade Act of 1974, and Section 125 of that act gives the president what is commonly referred to as “termination and withdrawal authority.” Section 125a requires the U.S. to have power to withdraw from every trade agreement after appropriate notice — usually six months. Section 125b allows the president to revoke previous tariff reductions and Section 125c gives the president authority to proclaim higher tariffs within certain limits.
The bottom line, says Maruyama is if Trump wants to terminate NAFTA, he can.

Section 301 of the 1974 Act gives the U.S. trade representative broad authority to respond to unfair trade practices or agreement violations, or an action that is “unreasonable or discriminatory and burdens or restricts U.S. commerce.” The president can direct the response. Which means the president could direct the USTR to impose a 45 per cent tariff on certain Chinese goods, Maruyama said.

http://www.canadiancattlemen.ca/2016/09/01/can-a-president-sink-nafta/

That's not an outlier view, either:

http://money.cnn.com/2016/07/06/news/economy/trump-nafta/index.html

http://opiniojuris.org/2016/03/11/can-president-trumpsanders-withdraw-the-u-s-from-nafta-and-the-wto/

In any case, that issue essentially was addressed by the Supreme Court more than 35 years ago.  In 1979, Carter withdrew unilaterally from our treaty with Taiwan, claiming as his authority a provision in the treaty that gave either party the right to withdraw with one year's notice.  That's analogous to the 6 month notice in NAFTA.  Republicans sued, claiming he didn't have that authority, and that Congress had to consent.

The Supreme Court refused to address the dispute, holding that it was a political question.  So, Carter's unilateral withdrawal from that treaty stood.  Trump's position here would be even stronger than Carter's because of the delegation of power contained in the Trade Act of 1978.

I'm not saying it would be smart to do that - I don't think it would be.  But I also don't think it's some unprecedented case of Executive Power running amok.

I agree with a lot of what you're saying, a lot of what Yoo is saying.


IMO so far Trump has not breached his authority, and he will not IMO. Trump is careful to go to his lawyer for everything he does.


His public commentary is bad form though.


I will continue to oppose this form of policy expression.

[Oceander]

Their eyes had seen the glory of the coming of Barack
With pen and phone and styrofoam, deplorables would shock


It's different now. Cuz Trump.

Definitely.  If liberals think Trump is overeaching they have nobody but themselves to blame for having set the precedent. 

[Cripplecreek]

Definitely.  If liberals think Trump is overeaching they have nobody but themselves to blame for having set the precedent.

So who do we blame for making it worse when the democrats retake the white house?

[DiogenesLamp]

So who do we blame for making it worse when the democrats retake the white house?

You think it is worse than Obama?    Are you kidding me?    The President enforcing the actual law is worse than Obama refusing to enforce the law?   


Obama did a lot of things that were blatantly illegal,  and yet people are whining about Trump enforcing the actual law? 

[Maj. Bill Martin]

His public commentary is bad form though.

He says plenty of dumb stuff -- no argument there.  But as long as he's generally doing the right stuff, I'll live with him saying the stupid stuff.  Much better than the alternative of a President Clinton who might have sounded "respectable", but actually done everything completely wrong.

[Weird Tolkienish Figure]

He says plenty of dumb stuff -- no argument there.  But as long as he's generally doing the right stuff, I'll live with him saying the stupid stuff.  Much better than the alternative of a President Clinton who might have sounded "respectable", but actually done everything completely wrong.

I think it will backfire though. If Trump gives the impression of someone who challenges "judicial independence" then judges will be even more resolute to show that they won't back down.


I feel it will alienate a lot of people that held their nose, rather than win them over.


I dunno. 

[beandog]

Smashing the left wing control of the information distribution system is about the most important issue upon which conservatives should be focused.   


The Media gave us Clinton and Obama.   Till conservatives have equal say on the broadcasting networks,  we should be trying to destroy the existing media system. 


The "media"   is the Air force of the left,  and we should be working at shooting it down.

Exactly.  Anyone consistenly sticking up for the "media" is not to be trusted.

[Maj. Bill Martin]

I think it will backfire though. If Trump gives the impression of someone who challenges "judicial independence" then judges will be even more resolute to show that they won't back down.


I feel it will alienate a lot of people that held their nose, rather than win them over.


I dunno. 

I agree that some of the stuff he says is counterproductive, and I wish he wouldn't say it.  But that's who he is, and it doesn't look like it is going to change.  I just hope he manages to ram through good judges and good policies in the meantime.

What else can we do?

[txradioguy]

Smashing the left wing control of the information distribution system is about the most important issue upon which conservatives should be focused. 

If you think that is the #1 most important thing Conservatives should focus on...you hadn't been spending much time in reality.

[DiogenesLamp]

Exactly.  Anyone consistenly sticking up for the "media" is not to be trusted.

After they way they  have consistently helped manipulate the voters with fake news stories or censoring stories that hurt Democrats,   we should be doing everything of which we can think to undermine their credibility and finances. 


We need to be trying to cut their financial throats,  not empowering them with page hits and giving oxygen to their lies.