Thursday, January 19, 2017

President Mayhem (with a war powers prediction)

Stephen Griffin

You may have seen those commercials for Allstate that feature a character called "Mr. Mayhem," that's what I had in mind.  Following up, we can usefully define the notion of the "Trump premium."  The premium is the difference between how Trump will operate as president and the other "regular Republican" candidates in the mix a year ago.  Some of the policies being announced, particularly by members of Congress, would be largely the same were we about to experience the Cruz administration, the Rubio administration and so on.  After all, the Republican Congress made a number of practice runs, proposing legislation that they knew President Obama would veto.  But there are some differences as well.

Before providing my top two contenders, I will observe that there are indeed some pretty clear similarities between the anxiety about Trump and the anxieties some "experienced Washington hands" had about Ronald Reagan.  Of course, Reagan had experience as a governor, I certainly don't want to ignore that.  But many worried about Reagan's ability to handle the 4 a.m. call and so forth.  And in truth, Reagan did not function like many prior presidents, believing in "Cabinet government" (like a CEO), delegating many responsibilities and showing little interest in policy details.  But Reagan did have clear policy priorities and a sense of the moment.

As things stand now, the Trump administration is almost certainly going to produce mayhem on two fronts.  Given that Trump does not want to divest ownership and does not want to disclose all his holdings, the conditions are ripe for a series of scandals related to his financial interests.  Things are going to be especially dicey for those career civil servants and political appointees who suddenly realize that their decisions could either benefit or adversely affect Trump's interests.  How will they explain themselves in terms anyone will believe?  And that's not even to raise the foreign emoluments problem.  It is highly likely that as time goes on, more and more scholars and lawyers will agree with the Tribe-Eisen-Painter interpretation. This could put the DOJ in a difficult position with the White House.

The other front is the intelligence agencies and relations are already so fraught there that I need say little more.  But I should get a war powers prediction under the wire.  Right now, it is unclear who will be staffing out the DOJ in terms of the Solicitor General, the OLC and so on.  But if past trends hold good, you will eventually see the Trump administration taking a different line on war powers than prevailed in the Clinton-Obama administrations.  Of course, I know there are those who believe Obama eventually embraced an "imperial president" perspective.  That's wrong, but that's a subject I've already addressed in a Drake Law Review symposium.  What I'm referring to here specifically is the constitutionality of the War Powers Resolution. The Clinton-Obama administrations were at least willing to live with the WPR and did not challenge its constitutionality.  I anticipate we will see a shift on that score, consistent with the views Republicans have expressed for decades, at least since the Reagan administration's 1983 statement and really since Nixon's original veto of the WPR in 1973.  I'm normally bad at predictions, but I'm pretty sure on this one.  Stay tuned!

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