How Trump Can Talk and Talk and Talk His Way Into More Power

(Bloomberg Opinion) -- All modern presidents have tried to expand executive power, mostly by taking unilateral action and waiting to see whether Congress or the courts bothered to stop them. Donald Trump is different. His favored method is to talk, not do. He’s trying to expand executive power by insisting, again and again, day after day, that he’s above the law – that the president can pardon himself and can’t obstruct justice.

It’s tempting to treat these assertions as repetitive, irritating and even (after a certain point) dull. That would be a huge mistake. Trump’s statements and restatements of his aggrandized sense of executive power have a strategic goal: convincing the public and ultimately the courts that his positions are legitimate and justified. They have to be refuted and rejected every single time. Because if they aren’t, history teaches, they could become part of established notions of executive power.

Recognize that, when it comes to executive power, U.S. Constitution itself doesn’t always answer the tough questions. The framers never bothered to say explicitly that the president couldn’t pardon himself. Nothing in the text of the Constitution tells us exactly whether Congress can make a law that criminalizes the president obstructing justice for corrupt reasons.

In the absence of definitive text, the U.S. Supreme Court has often looked to past practice to figure out the scope of executive power. The canonical statement of this approach comes from Justice Felix Frankfurter, writing in the most important separation of powers case of all time, known colloquially as the steel seizure case. That’s the 1952 case, officially Youngstown Sheet and Tube Co. v. Sawyer, in which the justices struck down President Harry Truman’s unilateral takeover of the steel industry to resolve labor unrest during the Korean War.

Frankfurter’s statement is so influential that it deserves quotation in full. He wrote:

A systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on “executive Power” vested in the President by § 1 of Art. II.16

The key component here is repetition over time. Lots of presidents doing the same thing again and again, with Congress’s implicit acquiescence, counts as part of the structure of government. A “gloss” here means a kind of legal interpretation that starts off being written in the margins of a law book and ultimately becomes part of the law itself.

One useful way to think about Frankfurter’s idea is to compare it with a notion from property law. If I openly encroach on a part of your land for years at a time, planting a garden or building a fence on it, and you never bother to stop me, the land may eventually become mine – even though you hold the title. Similarly, if the president exercises a power and Congress lets him, the power actually starts to belong to the executive.

A good concrete example is the president’s use of limited military force without congressional authority. President Barack Obama’s Department of Justice relied on historical practice to justify the bombing of Libya, even though it hadn’t been authorized by Congress. This may have been good or bad, but it was a natural outgrowth of past executive action – and Congress didn’t do anything about it.

When it comes to conduct, the message to Congress is: Use it or lose it. If Congress doesn’t use its power to oppose the president’s practice, the executive power grows.

The same is true for Trump’s verbal assertions of executive power. Unless they are actively opposed and rejected, they will gradually come to seem like constitutional common sense, at least to his supporters. That in turn will make his arguments more likely to be taken seriously by courts.

Take the pardon argument. Trump’s supporters will say that because nothing in the Constitution expressly prohibits Trump from pardoning himself, the power must exist. Opponents need to respond that the rule of law would be fundamentally undermined if the president could break the law and pardon himself. Such a president wouldn’t be a participant in the government of a republic. He would be an emperor, altogether outside the structure of legality.

For good measure, there is also the basic principle that no one may be a judge in his own cause. That is the main reason given by a 1974 Department of Justice memorandum that concluded the president couldn’t pardon himself.

Technically, Frankfurter’s approach only applies to presidential conduct, not presidential words. But Trump is clever enough to know that repeating words is a way to make them true. If he can do that with out-and-out falsehoods, he can certainly do so with matters of opinion.

That’s why anyone who cares about the rule of law has to match Trump assertion for assertion. He can’t be allowed to gain the rhetorical upper hand, lest his extreme views of executive power come to seem normal – or unopposed.

©2018 Bloomberg L.P.