Published by CQ Press, an Imprint of SAGE Publications, Inc. www.cqresearcher.com The Presidency Is the executive branch too powerful?

resident Trump’s governance style has heightened long-standing concerns that presidents have been asserting more power, through executive orders and other means, than the Constitution intended. ForP instance, no president has asked Congress for a declaration of war since World War II even though the Constitution reserves war-making power to the legislative branch. Some historians date the growth of presidential control to the New Deal-era expansion of the federal government, and others to the end of the Cold War and a decline of foreign policy expertise in Congress. Critics of President Trump boards Air Force One at Joint Base Andrews in Maryland on Nov. 5, 2018. Trump’s Trump, pointing to his mounting executive orders and criticism leadership style has exacerbated long-standing concerns that presidents — both Republican and Democratic — of the justice system, worry that the American system of checks have been asserting more power, through executive orders and other means, than the Constitution intended. and balances could be in peril. Others see Trump’s overturning of standing policies as the inevitable result of rising presidential power under both Republicans and Democrats. Trump’s support- ers say he is doing exactly what he was elected to do: disrupt I THIS REPORT Washington’s traditions. Whether future presidents will follow N THE ISSUES ...... 971 Trump’s example remains an open question. S BACKGROUND ...... 977 I CHRONOLOGY ...... 979 D CURRENT SITUATION ...... 984 CQ Researcher • Nov. 16, 2018 • www.cqresearcher.com E Volume 28, Number 41 • Pages 969-992 AT ISSUE ...... 985 OUTLOOK ...... 987 RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR EXCELLENCE ◆ AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD BIBLIOGRAPHY ...... 990 THE NEXT STEP ...... 991 THE PRESIDENCY

Nov. 16, 2018 Volume 28, Number 41 THE ISSUES SIDEBARS AND GRAPHICS EXECUTIVE EDITOR: Thomas J. Billitteri [email protected] • Are the checks and balances Clinton Issued Most 971 on presidential power still 972 Executive Orders in ASSISTANT MANAGING EDITORS: Kenneth Fireman, [email protected], working? First Year Kathy Koch, [email protected], • Will President Trump’s Obama issued the least. Scott Rohrer, [email protected] nontraditional behavior alter the presidency for good? 973 Americans Leery of Greater ASSOCIATE MANAGING EDITOR: Val Ellicott • Has the office of the Presidential Power CONTRIBUTING WRITERS: Sarah Glazer, president grown too big for They overwhelmingly oppose Alan Greenblatt, Reed Karaim, one person? expanding it. Barbara Mantel, Patrick Marshall, Tom Price SENIOR PROJECT EDITOR: Olu B. Davis Parties Trade Control of 976 Congress EDITORIAL ASSISTANT: Natalia Gurevich BACKGROUND Democrats and Republicans PROOFREADER: Michelle Harris have shared power in six of Checks and Balances the last 19 Congresses. FACT CHECKERS: Eva P. Dasher, 977 The Founders limited execu- Betsy Towner Levine, Robin Palmer tive branch power. Chronology 979 Key events since 1789. 978 Expanding Authority Abraham Lincoln broadened War Declarations Not presidential powers during 980 Sought in Modern Times the Civil War. Presidents dislike “having to go to Congress and fight An Imprint of SAGE Publications Inc. The “Imperial” Presidency that out.” 981 Richard M. Nixon said he had SENIOR VICE PRESIDENT, the power to defy Congress. GLOBAL LEARNING RESOURCES: Is Trump Violating the Karen Phillips 982 Emoluments Clauses? 984 Age of Gridlock The president’s properties ASSOCIATE VICE PRESIDENT, Critics say Congress’ partisan could invite special treatment, LIBRARY EDITORIAL: divide has rendered it inef- critics say. Todd Baldwin fective.

985 At Issue: Copyright © 2018 CQ Press, an Imprint of SAGE CURRENT SITUATION Does a U.S. president have Publications, Inc. SAGE reserves all copyright and the authority to pardon other rights herein, unless previ ous ly speci fied in writ- himself? Russia Probe ing. No part of this publication may be reproduced 984 The investigation’s future is electronically or otherwise, without prior written uncertain. permission. Un au tho rized re pro duction or trans mis- FOR FURTHER RESEARCH sion of SAGE copyright ed material is a violation of federal law car ry ing civil fines of up to $100,000. 986 Congress vs. the Presidency For More Information Democrats say they will in- 989 Organizations to contact. CQ Press is a registered trademark of Congressional vestigate Trump’s finances. Quarterly Inc.

Bibliography CQ Researcher (ISSN 1056-2036) is printed on acid- Going to Court 990 Selected sources used. free paper. Published weekly, except: (March wk. 986 Trump so far has won only one lawsuit filed against his 4) (May wk. 4) (June wk. 5) (Aug. wks. 2, 3) (Nov. administration. The Next Step wk. 4) and (Dec. wks. 3, 4). Published by SAGE 991 Additional articles. Publications, Inc., 2455 Teller Rd., Thousand Oaks, CA 91320. Annual full-service subscriptions start at UTLOOK Citing CQ Researcher $1,131. For pricing, call 1-800-818-7243. To purchase O 991 Sample bibliography formats. a CQ Researcher report in print or electronic format (PDF), visit www.cqpress.com or call 866-427-7737. Bully Pulpit 987 Single reports start at $15. Bulk purchase discounts Trump’s style is reshaping and electronic-rights licensing are also available. the nature of the office. Periodicals postage paid at Thousand Oaks, California, and at additional mailing offices. POST MASTER: Send address changes to CQ Research er, 2600 Virginia Ave., N.W., Suite 600, Washing ton, DC 20037. Cover: AFP/Getty Images/Mandel Ngan

970 CQ Researcher The Presidency BY SARAH GLAZER

Since the Cold War ended in 1991, Congress has been THE ISSUES losing its willingness and n his first year in office, capacity “to rein in the presi- President Trump over- dents,” particularly on foreign I turned more than 100 policy, according to Goldgeier Obama-era policies on issues and Saunders. Moreover, they ranging from immigration to and other experts say, growing the environment. party polarization and changes He also withdrew the United in Congress since the 1970s, States from international agree- including the weakening of ments to limit climate change committees, has exacerbated and curb Iran’s nuclear ambi- the situation. 4 tions and said he has the power During Obama’s first two to pardon former advisers years in office, his Democratic ensnared by special counsel Party controlled both houses Robert S. Mueller’s investigation of Congress. But Republicans of Russian election interference took control of the House in — and even to pardon himself. 1 2011, and Democrats held only Recently, Trump said he a tiny majority in the Senate. wanted to amend a long- Facing an increasingly resistant established interpretation of the Congress, Obama began to AFP/Getty Images/Jim Watson Constitution’s 14th Amendment President Barack Obama signs two presidential exert his authority through by declaring that it does not memoranda in his office on Air Force One in November executive action rather than automatically grant citizenship to 2014. Presidents increasingly have been using seek legislation. For example, noncitizens’ U.S.-born children. 2 executive orders, memoranda, proclamations and letters instead of entering into official to agencies to enact policies. Obama issued more Trump’s actions have stirred executive memoranda than any previous president. treaties on curbing climate new questions about where the change and limiting Iran’s limits of presidential power lie nuclear bomb-making capacity, — questions that have persisted through- whether he is permanently reshaping the Obama signed international agreements out the nation’s 242-year history but that very norms and customs of the office. on those issues. This was necessary, have grown more pronounced during The White House under Trump is an argued Obama’s Secretary of State John recent presidencies as political polariza- “unchained, unconstrained” presidency, Kerry, because it had “become physically tion has increasingly gripped the nation. wrote James M. Goldgeier, a professor impossible” to obtain the two-thirds In some ways, say historians and of international relations at American (67) vote of the Senate required by the presidential experts, Trump has merely University, and Elizabeth N. Saunders, Constitution to ratify a treaty. 5 continued a long-standing trend toward associate professor in the Georgetown As a result, however, the next presi- broadening executive authority, whether University School of Foreign Service. The dent could reverse those international by claiming war-making powers or con- phenomenon “didn’t start with Trump,” agreements with the stroke of a pen, ducting foreign policy without congres- they wrote in an article describing what which is what Trump did. sional approval. Checks and balances they see as Congress’ abdication of power “Obama left a loaded gun in the on the presidency have been eroding in foreign policy, “but it has exploded Oval Office” in the form of executive for decades, experts say, as presidents since he took office.” 3 orders, says Sidney Milkis, a professor increasingly have asserted more author- Presidential experts say traditional of politics at the University of Virginia. ity than the Founders intended. brakes on presidential power have been Executive orders and other types of Yet, while other recent presidents have diminishing in recent administrations, presidential actions will now become stretched the boundaries of presidential including those of Trump and Presi- more common, he predicts. “We’ll have power, perhaps none has stirred as much dents Barack Obama, George W. Bush dueling executive swords,” he adds, a controversy as Trump over the limits of that and Bill Clinton, because Congress “kind of Caesarism” that subordinates power. Moreover, Trump’s unconventional has shown little stomach for resisting the rule of law to the presidency. behavior has triggered questions about executive incursions. With the November midterms resulting

www.cqresearcher.com Nov. 16, 2018 971 THE PRESIDENCY

Presidents have initiated more than 100 Clinton Issued Most Executive Orders in First Year military actions without congressional approval, representing a “long continued Of the last four presidents, Bill Clinton issued the most executive practice on the part of the Executive, orders in his first year in office, followed by President Trump. acquiesced in by the Congress,” accord- Former President Barack Obama issued the least, but he used ing to the Justice Department’s Office of other executive actions to achieve some policy goals. Legal Counsel. 11 (See sidebar, p. 980.) “The problem is that over 200 years, 57 55 54 Number of Executive Orders things have changed, so a president can Issued During First Year in take us into war almost overnight,” says 39 Office, by President presidential historian Michael Beschloss, author of the 2018 book Presidents of War. “That is a big increase in power that the Founding Fathers never wanted and would be horrified by.” And by not Bill Donald demanding that presidents first seek George Barack Clinton Trump congressional declarations of war, he W. Bush Obama adds, “Congress has too often acted Sources: “Executive Orders,” Federal Register, National Archives, 2018, https://tiny url.com/yajx9bph; “Executive Orders Disposition Tables,” Federal Register, National like a lapdog.” Archives, undated, https://tinyurl.com/y9vcwg3k Some experts say constitutional checks and balances on the presidency in another divided Congress — Demo- issued more than 3,700 executive orders remain effective, citing recent actions by crats are set to control the House, while in his 12 years in office spanning the Congress and the judicial branch. The Republicans expanded their control of Depression, New Deal and World War separation of powers, designed by the the Senate — more standoffs between II. The use of executive orders declined Founders to keep the three branches of the executive and legislative branches, significantly after Roosevelt but picked government competing with one another, and more controversial assertions up again under Republican Ronald is working as intended, they say. of presidential power by the Trump Reagan, who issued 381 — more than For example, several courts have White House, are likely, some political any other recent president — during his blocked Trump’s executive order bar- observers say. eight years in office. 8 ring refugees and travelers from seven “The administration will be under But Milkis has pointed out that while Muslim countries on the grounds that higher scrutiny and accountability by a Obama signed fewer executive orders it discriminated against people based Democratic House,” former Rep. Tom than his recent predecessors, he devel- on religion. The Supreme Court finally Davis, a Republican from Virginia, said oped “creative tactics” to circumvent the upheld the administration’s third ver- after the election. “Look for more investi- legal and procedural hurdles outlined sion of the order, which stressed na- gations and subpoenas. The honeymoon in the Administrative Procedure Act, tional security concerns and included is over. Voters voted to put a check on the 1946 law specifying how federal non-Muslim countries. 12 the president rather than giving him a agencies issue regulations. 9 Now, says In addition, the Republican-controlled blank check.” 6 Milkis, presidents use devices such as Congress has succeeded in “stopping Others, however, predict more memoranda, proclamations, letters to or deterring Trump from acting unlaw- Democratic efforts to cooperate with agencies and waivers in addition to fully,” wrote Harvard law professor Jack Trump on issues that have bipartisan executive orders. Goldsmith, a former assistant attorney support. “Democrats winning the For instance, Obama used executive general in the Bush administration. House provides a silver lining for the memoranda more than any other presi- Goldsmith cited sanctions Congress president in that he could craft biparti- dent and by 2014 was on track to take imposed on Russia for interfering in the san solutions for prescription drug costs more executive actions than any president 2016 U.S. presidential election, which and infrastructure,” said Sara Fagen, a since Democrat Harry S. Truman. 10 Trump vigorously opposed but signed former White House political director For decades presidents have been because it passed with a veto-proof under Republican Bush. 7 asserting increasing authority to send majority. 13 Executive-centered governing ex- U.S. forces into battle abroad, even But new concerns have arisen after panded rapidly under Democratic Presi- though the Constitution specifically gives Trump on Nov. 7 forced the resignation dent Franklin D. Roosevelt (FDR), who Congress the authority to declare war. of Attorney General Jeff Sessions and

972 CQ Researcher put oversight of the Mueller investiga- tion under a Justice Department official, Americans Leery of Greater Presidential Power Matthew Whitaker, who has criticized the investigation. The action has ignited U.S. adults overwhelmingly say that giving U.S. presidents more fears that Trump might try to wield power would be too risky, and they are skeptical of weakening the control over the probe. system of congressional and judicial checks and balances. “No one is above the law, and any effort to interfere with the special How U.S. Adults View Presidential Power* counsel’s investigation would be a gross abuse of power by the president,” said Aug. 2016 72% 23% Sen. Mark Warner of Virginia, the rank- ing Democrat on the Senate Intelligence Committee. “While the president may Feb. 2017 77% 17% have the authority to replace the attorney general, this must not be the first step 76% 21% in an attempt to impede, obstruct or March 2018 end the Mueller investigation.” 14 While Trump’s approach to presi- It would be too risky to give U.S. presidents more power. dential authority has sparked new Problems could be handled more effectively if presidents did not have to debates about the office, some contend worry as much about Congress or the courts. that his approach is consistent with his- * “Don’t know” responses not shown. torical precedent. Like most presidents, Source: Carroll Doherty, “Key Findings on Americans’ Views of the U.S. Political Trump is a counterreaction to the style System and Democracy,” Pew Research Center, April 26, 2018, https://tinyurl.com/ and policies of his predecessor, says yb3h7t9f Marc Short, a former legislative liaison in Trump’s White House, and now a versed himself, issuing an executive gridlock — the deepest partisan split practitioner senior fellow at the Uni- memorandum in June 2012 deferring since the Civil War in Milkis’ opinion — versity of Virginia’s nonpartisan Miller enforcement of immigration laws against is driving presidents to do this, he says. Center, which studies the presidency. so-called Dreamers — people 30 and Procedural changes in Congress that “I believe the American people were under who were brought to the United have increased the power of political very intentional in sending somebody States as children. In 2014, he extended parties have worsened polarization, to Washington to disrupt it, because the program, known as the Deferred Milkis says. As House speaker from they were frustrated with the way it Action for Childhood Arrivals (DACA), 1995-99, conservative Newt Gingrich, was operating,” he says. to parents of such children. As author- R-Ga., consolidated the speaker’s As presidential scholars, lawmakers ity, Obama cited the executive branch’s power and limited the terms of key and political analysts examine the state discretion to decide where to focus its committee chairs, giving party leaders of the U.S. presidency, here are some prosecution efforts in enforcing laws. 16 more authority while reducing the of the questions being debated: Obama’s critics condemned the ac- power of senior committee chairs, who tions as a new assertion of presidential had often acted independently of the Are the checks and balances on power that defied the Constitution’s party. As a result, lawmakers increas- presidential power still working? Article II clause directing that the ingly became less willing to enter into “I’m the president. I’m not king,” executive shall “faithfully” execute the bipartisan agreements, according to a Obama, who taught constitutional law laws passed by Congress. 17 2012 analysis by Alex Seitz-Wald, an at the University of Chicago, said in a And because the actions were assistant editor of ThinkProgress.org, a 2010 interview explaining why he could done through executive memoranda, project of the liberal Center for Ameri- not extend amnesty to undocumented the Trump administration was able to can Progress Action Fund. 19 immigrants without new immigration terminate the programs with an execu- The partisanship is notably affecting legislation. “I can’t just make up the tive memorandum on Sept. 5, 2017, an foreign policy, because “it’s very, very hard laws by myself.” 15 action now embroiled in the courts. 18 to get 67 votes in [the Senate] for treaties,” But two years later, frustrated that Obama’s actions amounted to gover- says Georgetown’s Saunders. “More and Congress refused to pass bipartisan nance by presidential fiat, says the Uni- more we will see executive agreements,” immigration legislation, Obama re- versity of Virginia’s Milkis. Congressional which do not require congressional

www.cqresearcher.com Nov. 16, 2018 973 THE PRESIDENCY

new rule or repealing an old rule,’ ” Kamarck says. The rule change still must follow a lengthy process subject to legal and congressional intervention, outlined in the Administrative Proce- dure Act. “It makes for an inefficient system but that’s precisely what the Founding Fathers wanted,” she says, “because they didn’t want a king.” Trump also has been able to wield an unusual degree of influence over the future of the judicial branch. When he took office, Trump inherited an open Supreme Court seat and 107 judicial vacancies (compared with Obama’s 54) — an opportunity orchestrated by Sen- ate Majority Leader Mitch McConnell of Kentucky, who blocked many of Obama’s court nominees. Twelve of Getty Images/Mark Wilson A Muslim woman demonstrates outside the U.S. Supreme Court in June 2018 Trump’s appeals court nominees were after the justices upheld the Trump administration’s third version of a ban on confirmed in 2017, more than any other refugees and travelers from certain countries. Lower courts had said president in his first year in office. 22 the original ban on travelers from seven Muslim countries discriminated against people based on religion. Some experts cited the earlier decisions The recent bitterly partisan debate over as evidence that the courts still serve as a check on the presidency. Supreme Court Justice Brett Kavanaugh’s confirmation has raised questions about approval, she says, “and that just means In the aftermath of the midterm elec- whether the judicial system is becoming the next president can undo them.” tions, House Democrats are expected politicized in favor of the president. Former Trump aide Short attributes to reopen an Intelligence Committee But Harvard law professor Gold- the decline in bipartisanship in part investigation into Russian election inter- smith has argued that so far, the to partisan gerrymandering, which ference, which they say was closed judicial branch has proved remark- has created safe House districts for prematurely when Republicans con- ably independent. The conviction of incumbents and given members “less trolled the committee. 20 Trump’s former campaign chairman, incentive to work across the aisle.” According to the American Presidency Paul Manafort, for bank and tax fraud, For checks and balances to work, Project, an online archive of presidential and the guilty plea by Trump’s former say presidential scholars, loyalty to the documents compiled by the University attorney, Michael Cohen, for fraud and institution — Congress — must be at of California, Santa Barbara, Trump is- campaign finance law violations — in- least as strong as loyalty to one’s party. sued more executive actions, includ- cluding some that implicate the presi- For instance, they point out, in the ing executive orders, memoranda and dent — show that judicial institutions 1970s some Republican lawmakers over- proclamations, in his first 100 days than “have worked well despite Trump’s came partisan differences to investigate any of his three immediate predecessors unprecedented efforts to derail them,” the Watergate scandal, which ended up — Obama, Bush and Clinton. Also, the Goldsmith wrote in the conservative driving Republican President Richard M. orders were “unusual in their scope” and Weekly Standard. 23 Nixon from office under threat of im- “in the chaotic and rapid pace of their In an essay written before the peachment. In contrast, says University introduction,” said the project. 21 midterms and the Kavanaugh con- of Virginia professor of history Brian However, Elaine Kamarck, a former firmation, University of Chicago law Balogh, “this Congress is overlooking senior policy adviser in the Clinton professor Eric A. Posner concluded its basic oversight functions,” in its White House and now a senior fellow that the judicial and congressional own committee investigations of Rus- in governance studies at the Brookings branches still have a lot of power to sian interference into the 2016 elections Institution, says the concern about prevent the abuses feared by some because Republican lawmakers are not executive orders is “overblown.” Trump critics, such as the president eager “to cross swords” with Trump, who “All the executive order does is say, controlling the courts or turning Con- “denies the existence” of the problem. ‘Begin the process of implementing a gress into a puppet. For example,

974 CQ Researcher while Trump can act unilaterally in Russia’s interference in U.S. elections, Critics also allege Trump has abused some areas — such as imposing tariffs despite U.S. intelligence agencies’ in- his pardon powers by, for instance, on China — Congress could withdraw sistence to the contrary. 27 pardoning former Arizona Sheriff Joe that power, he said. However, Posner While other presidents have used Arpaio, a political ally convicted of crimi- conceded that having a Congress filled the power of their office to protect nal contempt related to his department’s with members worried about oppos- their personal interests — President targeting of undocumented immigrants. ing a president with a strongly loyal Nixon famously pressed successfully Trump also has hinted he may pardon base or potentially having a judiciary for the firing of a special prosecutor former aides who have been convicted dominated by Trump’s supporters investigating Watergate — Trump’s or pleaded guilty in connection with could change that calculus. 24 actions have drawn especially harsh the Mueller investigation. 31 scrutiny. For example, he has been “He’s using the pardon power to Will President Trump’s nontra- criticized for ousting Attorney General reward his allies politically and thinking ditional behavior alter the presi- Sessions and FBI Director James Comey, about using it to frustrate investigations dency for good? whose actions could have threatened of his own political misconduct,” says “The thing to fear from the Trump Trump personally. Trump has repeat- Rosenzweig. presidency is not the bold overthrow of edly called the Mueller investigation But questions over pardons have the Constitution . . . but an accumulating a “witch hunt” and has criticized the arisen in other presidencies. Democrat subversion of norms,” Atlantic senior edi- Justice Department for indicting two Clinton, for example, stirred bitter tor David Frum, a former speechwriter Republican congressmen before the controversy when, on his last day in for President George W. Bush and a midterm elections. 28 office, he pardoned financier Marc Rich, longtime Trump critic, wrote in his 2018 Critics also have complained that who was indicted on tax evasion and book, Trumpocracy: The Corruption of Trump has refused to release his other charges. Rich’s wife was a major the American Republic. For instance, he tax returns, which presidents have Democratic donor. 32 said, past presidencies were limited by published since the 1970s, and that Charles Kesler, a senior fellow at the notions of tradition and propriety — such he has used inflammatory political conservative Claremont Institute and a as not enriching oneself while in office rhetoric that some argue has encour- professor of government at Claremont or biasing law enforcement in favor of aged hate crimes. 29 McKenna College, countered criticism the powerful — both areas where Trump Paul Rosenzweig, a senior Homeland of Trump, saying he has mainly broken has been accused of breaking ethical Security official in the George W. Bush “picayune” norms or made salutary taboos and exploiting vulnerabilities in administration and now a senior fellow changes in how Washington conducts the U.S. system. 25 at the R Street Institute, a center-right business rather than violating any laws. “As the norm-shatterer-in-chief, Pres- think tank, points to two Trump actions “Disturbing our NATO allies’ slumber ident Trump has altered the American as being particularly striking departures seems more like due diligence than presidency forever,” particularly testing from presidential practice. Those were recklessness,” he wrote, referring to “our constitutional structure of account- Trump’s order to declassify law enforce- Trump’s threat to pull out of the alli- ability,” according to Kimberly Wehle, ment material related to the Mueller ance and his criticism of NATO allies a professor of law at the University of investigation (he later rescinded the for allegedly failing to pay their fair Baltimore. She raised the possibility that order) and his revocation of the secu- share of the cost of military defense. 33 Trump has violated the Constitution’s rity clearances of critics such as former Kesler disagrees with those who emoluments clauses, which ban U.S. CIA Director John Brennan, who had say Trump was suppressing dissent officeholders from accepting gifts from called Trump’s failure to condemn Rus- when he withdrew Brennan’s security domestic or foreign officials. Several sian involvement in the 2016 elections clearance. “Trump’s not doing anything pending lawsuits argue Trump has “nothing short of treasonous.” 30 unconstitutional or athwart the law,” he violated the clauses through his busi- Rosenzweig says Trump’s actions says. “It seems entirely reasonable to ness dealings. 26 (See sidebar, p. 982.) will weaken the president’s discretion counterattack against a political enemy; On foreign policy, the president has on national security. Eventually, he it’s political hardball.” questioned the value of long-standing predicts, the other two branches of Adds former Trump aide Short, “A alliances such as NATO, harshly criti- government will withdraw that leeway, lot of the coverage from inside the cized foreign leaders, embraced foreign which could hurt the United States Beltway is often aghast at norms that dictators while ignoring their human because the nation typically wants the are broken, when I believe in many rights violations and deferred to Rus- president to have latitude in making ways that’s what the American people sian President Vladimir Putin’s denial of national security decisions. were looking for.”

www.cqresearcher.com Nov. 16, 2018 975 THE PRESIDENCY

1,000 in the Executive Office, which Parties Trade Control of Congress provides support for the president. 35 Nevertheless, several presidential Control of six of the last 19 Congresses has been divided between scholars recently have argued that the the two major political parties, a situation that historically has limited presidency is no longer manageable. a president’s ability to achieve legislative aims. In The Impossible Presidency, Jeremi Suri, a professor of history and public Party Majorities in the Senate and House of Representatives, affairs at the University of Texas, Austin, 1981-20191981 2019 said the office has become too big for Senate House one person. Modern presidents, he Years President Majority Majority wrote, “have rarely achieved what they wanted because they have consistently 1981-83 Reagan overcommitted, overpromised and over- 1983-85 Reagan reached.” In addition, presidents are so 1985-87 Reagan distracted by competing demands they 1987-89 Reagan become “largely reactive,” he argued. 36 1989-91 H.W. Bush “What makes [the presidency] impos- 1991-93 H.W. Bush sible is that the range of policies the 1993-95 Clinton United States deals with are so complex 1995-97 Clinton and come at you so fast that either 1997-99 Clinton you’re too caught up in details or you’re 1999-2001 Clinton operating at too much of a distance,” says Suri. “Both are ineffective.” 2001-03* W. Bush Suri suggests a somewhat radical 2003-05 W. Bush solution: divide the office between the 2005-07 W. Bush president and someone else, such as the 2007-09 W. Bush vice president or a prime minister, with 2009-11 Obama the deputy president handling domestic 2011-13 Obama issues and the president focusing on 2013-15 Obama foreign policy and big decisions. 2015-17 Obama It’s an old argument. The Founders 2017-19 Trump considered but rejected the idea of a 2019-21 Trump “plural executive.” For example, Edmund Randolph, a member of the Continental * Democrats regainedi d SSenate control l iin 20012001, when h Democrat Congress and later governor of Virginia, Republican Sen. James Jeffords of Vermont left the Republican proposed a three-person magistracy to GOP and caucused with the Democrats. Even prevent the president from becoming a Sources: Harold W. Stanley and Richard G. Niemi, “Vital Statistics on American monarch. Thomas Jefferson, who initially Politics 2009-2010,” CQ Press, 2009, Table 1-13; “Party Divisions of the House of favored a plural executive, later decided Representatives,*” History, Art and Archives, U.S. House of Representatives, https:// that opposing wills among multiple lead- tinyurl.com/yaencyyu; “Party Division,” U.S. Senate, https://tinyurl.com/yc3opkd6 ers would produce “absolute inaction.” 37 Suri counters that the Founders were Some political observers say that Has the office of the president writing when the country was small: whether Trump’s norm-breaking will grown too big for one person? “They had no concept of how big and influence future presidents depends In 1938, when President Roosevelt complex the country would become and on whether he is re-elected, which proposed legislation to expand his how involved the president would be would represent an electoral endorse- staff beyond two secretaries, Congress in people’s lives on a day-to-day basis.” ment of his governing style. If Trump balked, and demonstrators protested But White House advisers from both wins a second term, “the office will with placards reading, “We don’t want political parties disagree that the office be forever changed, and not for the a dictator.” Eventually FDR got six staff- is unmanageable. better,” said former Bush Justice official ers. Today the president has some 400 The Executive Office of the President Goldsmith. 34 staffers in the White House and another — where staffers deal with national

976 CQ Researcher security, the budget and domestic senior White House posts with former nor ever happy, whose government is policy — “was designed to make the campaign aides. Suddenly transitioning in one assembly,” he wrote in 1776. 41 office manageable,” says Kamarck, the from running a campaign to helping the With vigorous competition between former White House adviser, who over- president govern does not allow time to rivalrous, self-interested executive and saw Clinton’s “reinventing government” ensure aides are “suited to the unique legislative branches, James Madison initiative. Moreover, she says, Clinton challenges of the executive branch,” wrote, “ambition [would] be made to and George W. Bush used their vice he said. Instead, he cited one possible counteract ambition.” 42 presidents in the manner Suri proposes: solution: Each party’s nominee should During the four-month Constitutional Clinton handed over environmental form a “government-in-waiting and learn Convention in the summer of 1787, policy to Vice President Al Gore; Bush the folkways of the federal system.” 40 delegates created checks and balances let Vice President Dick Cheney handle However, the author of that Obama to prevent the rise of a tyrannical presi- foreign policy early in his presidency. White House study, Shirley Anne War- dent but left the powers of the execu- Former Trump aide Short agrees the shaw, a political science professor at tive relatively undefined. The Founders president can handle the job if he or Gettysburg College in Pennsylvania, imagined a moral leader, wrote University she delegates authority to competent disagrees with Dickerson’s conclusion. of Texas historian Suri, who would rise Cabinet members and staffers. When “The reason people get involved in above party, be free from corruption voters select a president, he says, “you’re the campaign is often because they and be “impartial, fair, forward-looking partly hiring the president for the people have other government experience,” and unifying” in the mold of the broadly he or she will put around himself.” she says, noting that almost all of trusted patriot George Washington. 43 Writing in 1973, historian Arthur M. Obama’s senior White House advisers The Constitution gave the president Schlesinger Jr., who served as special had worked in the federal govern- a handful of independent powers: assistant to President John F. Kennedy, ment at some senior level. As for commander-in-chief over the military, dismissed concerns about the need for a “government-in-waiting,” she says chief treaty negotiator and chief en- more than one person to fill the president’s presidential nominees already do that forcer of laws passed by Congress. But shoes, citing an objection that concerned by forming transition teams. the contradictions between “a powerful the Founders — assigning accountability. Warshaw, author of the CQ Press legislature and an assertive president “In the case of high crimes and Guide to the White House Staff, says, “I were not resolved in the Constitution misdemeanors, who . . . was to be don’t think the presidency is too big — or thereafter,” said Suri. 44 impeached?” Schlesinger wrote the year for one person.” She describes Suri’s For decades, according to historians, before Congress initiated impeachment and Dickerson’s thesis as a minority presidents have seized powers that the proceedings against Nixon. 38 view among presidential scholars. Constitution reserved for Congress, par- In a recent article for The Atlantic, “Managing 15 Cabinet departments is ticularly with regard to war-making. In contributing editor John Dickerson, a co- hard, but that’s one reason to have a his 1973 book The Imperial Presidency, anchor of “CBS This Morning,” argued that strong White House staff.” Schlesinger blasted President Nixon’s the office of the presidency is “broken” and tenure as the culmination of an ongoing has become a “wheezing and jerry-rigged trend toward “presidential supremacy.” 45 contraption badly in need of repair.” As Presidents have generally asserted the presidency has expanded in power, BACKGROUND war-making powers under the Con- scope, complexity and degree of difficulty, stitution’s commander-in-chief clause. he said, it has become “overburdened, “With the frequent acquiescence of unrelenting in its demands and unlike Congress, [presidents] have seized for anything the Founders intended when Checks and Balances themselves the power to launch large they designed the role 230 years ago.” 39 conflicts, almost on their own author- During increasingly long presidential he Founders rejected the 17th- ity” for almost two centuries, historian campaigns, he said, presidents make T century view that government Beschloss contends. 46 more and more campaign promises required unified authority, historically In addition, presidents have used they cannot keep. Having a talent for in the hands of a monarch. In his their veto power to assert authority speaking persuasively on the stump is influential “Thoughts on Government,” over Congress more expansively than not the same deliberative skill needed John Adams, who became president in in the nation’s early years. Initially, a for governing, he wrote. 1797, argued that a tripartite govern- veto was used only if legislation was Dickerson cited a study finding ment was the best way to avoid tyranny. considered unconstitutional. President that Obama filled 58 percent of his “I think a people cannot be long free, George Washington issued the first veto

www.cqresearcher.com Nov. 16, 2018 977 THE PRESIDENCY in 1792, declaring that a bill revising how Amendment, abolishing slavery na- could kill millions of people and, as other House representatives were apportioned tionwide, which then was ratified by nations developed nuclear capability, the conflicted with the Constitution. 47 three-quarters of the states. authority to make split-second decisions Andrew Jackson’s use of the veto FDR, widely viewed as the first modern without time to consult Congress. 58 transformed the president into “the most “administrative president,” signed 3,721 The Korean War marked the first powerful policy-maker in the country,” executive orders and created a multitude time a president entered a major conflict as he strangled projects he believed of federal agencies with new executive without a declaration from Congress. On served special interests or raised the powers, spawning a legacy of hard-to-fill June 25, 1950, the day after North Korea federal debt, according to Suri. During expectations for later presidents. 54 invaded South Korea, Truman decided Jackson’s eight-year presidency (1829-37), Facing the Great Depression, waves to commit U.S. forces to support South he issued 12 vetoes, more than all six of bank runs and 25 percent unemploy- Korea. He did not inform congressional presidents before him combined. 48 ment, the newly inaugurated Roosevelt leaders of his decision until two days Franklin Roosevelt vetoed 635 bills, asked Congress to quickly pass the Emer- later, and he did not request a declara- more than any other president. 49 gency Banking Act, on March 9, 1933. tion of war. In a precedent-setting ratio- It gave the president new powers over nale, Secretary of State Dean Acheson banks, currency and modes of exchange recommended instead that Truman “rely Expanding Authority and created the unrealistic expectation on constitutional powers as president that presidents could control economic and commander in chief.” 59 adison called military conflict growth, according to Suri. 55 During the Cuban Missile Crisis of M “the true nurse of executive ag- The executive branch expanded October 1962, the United States and grandizement,” arguing Congress and rapidly under Roosevelt, with Congress’ the USSR engaged in a tense 13-day not the president should decide when blessing. For instance, the regulation of standoff over the Soviet Union’s installa- to go to war. 50 Since then, historians food and farming became a federal tion of nuclear-armed missiles in Cuba, have pointed out how presidential matter for the first time in 1933 when 90 miles off the Florida coast. On Oct. power grows during times of war. Congress authorized FDR to create the 22, 1962, President Kennedy appeared President Abraham Lincoln “greatly ex- Agricultural Adjustment Administration on TV, informing Americans that he panded presidential power in the interests to provide federal farm subsidies and was imposing a naval blockade around of ‘defense,’ ” during the Civil War, said determine what crops farmers would Cuba and that the United States was Suri, and Roosevelt’s role in World War II grow and how much. 56 That same prepared to use military force. The crisis led to “a quantum increase in presidential year Roosevelt created the first federal was resolved after the Soviets agreed power,” according to Beschloss. 51 welfare program after Congress passed to remove the missiles in exchange Lincoln emerged from the Civil War the Federal Emergency Relief Act, which for a U.S. promise not to invade Cuba (1861-65) with more authority than any of provided federal aid to the unemployed. and to lift the blockade. The Soviets his predecessors, according to Suri. Dur- Previously, unemployment relief had also demanded the withdrawal of U.S. ing the war he commanded the world’s come from state and local governments. missiles from Turkey, which Kennedy largest army, directed one of the fastest Roosevelt is the last president, secretly agreed to do. 60 industrializing economies toward his war so far, to ask Congress for a formal Kennedy’s action became “enshrined goals and created new domestic agen- declaration of war. On Dec. 8, 1941, as a rule” for how presidents could cies to strengthen the Union. By 1863, the day after the Japanese attacked act militarily without Congress, when Lincoln had become the first president to Pearl Harbor, Roosevelt requested, and it should have been viewed as an ex- institute military conscription as a condi- Congress passed, a declaration of war ception, historian Schlesinger wrote. It tion of citizenship. Previously, governors against Japan. Congress passed five fulfilled the “romantic ideal of a strong had decided who served in the military; more declarations of war — against president” acting alone and the public’s under Lincoln, officials employed by the Germany, Italy, Bulgaria, Hungary and expectation of the need for split-second president took over that job. 52 Rumania — in 1941 and 1942. 57 decision-making in the nuclear age. How- Also during the war it was Lin- When Roosevelt’s successor, President ever, the unfortunate legacy would be the coln, not Congress, who issued the Harry S. Truman, ordered that atomic expansion of the Vietnam War without Emancipation Proclamation, a military bombs be dropped on Japan in August congressional input, said Schlesinger. 61 order, freeing all slaves living in the 1945, his decision marked an enormous The Vietnam War expanded rapidly Confederacy, and ordered the military expansion of presidential authority. The under Presidents Lyndon B. Johnson recruitment of former slaves. 53 After development of nuclear arms gave the and Nixon, resulting in more than the war, Congress enacted the 13th president sole control over weapons that Continued on p. 980

978 CQ Researcher Chronology

1950 2000s 1780s-1860s President Harry S. Truman commits Presidents George W. Bush and Constitution creates an execu- U.S. forces to Korea without seeking Barack Obama issue fewer execu- tive office; Andrew Jackson a declaration of war. tive orders than their recent pre- and Abraham Lincoln begin decessors, but Obama uses memos expanding its power. • and letters to impose policies with- out congressional consent. 1789 A three-branch government debuts, 1960s-1970s 2012 headed by a president with vaguely Richard Nixon’s presidency Obama uses executive memo to defined powers. ends in scandal. defer deportations of “Dreamers,” undocumented immigrants who 1792 1962 arrived as children. George Washington issues the first President John F. Kennedy threatens, presidential veto. without congressional approval, mili- 2017 tary action against the Soviets over President Trump issues more ex- 1829-1837 their nuclear missiles in Cuba. ecutive orders and other executive President Jackson issues 12 vetoes. actions during his first 100 days in 1965 office than any of his recent pre- 1845 President Lyndon B. Johnson begins decessors. Trump fires FBI Director Congress for the first time overrides sending troops to Vietnam; by 1968, James Comey; Robert S. Mueller III a veto, issued by President John more than 500,000 are deployed. is appointed special counsel to inves- Tyler. tigate alleged Russian interference in 1973 the 2016 U.S. elections and whether 1863 War Powers Act requires presidents there was coordination between the Lincoln issues the Emancipation to consult with Congress before Trump campaign and Russian of- Proclamation, declaring all slaves in committing U.S. troops abroad, but ficials. . . . Trump signs Russia sanc- the Confederate states free. presidents ignore it. tions bill but calls it unconstitutional. . . . Trump terminates Dreamers • 1974 program of young immigrants but is House Judiciary Committee passes blocked by the courts. three articles of impeachment against 1930s-1950s Nixon in the Watergate scandal; he 2018 Executive branch grows rapidly resigns before House or Senate acts. Senate Judiciary Committee passes during the New Deal. bill to block president from firing • Mueller, but measure is put on hold 1933 (April). . . . Supreme Court rules Amid the Great Depression, the that the administration can ban trav- Emergency Banking Act hands 1980s-Present elers from certain Muslim-majority power over banks to the president, Use of executive power expands. countries (June). . . . Trump does Franklin D. Roosevelt. not dispute Putin’s denial of Russian 1981 meddling in U.S. elections despite 1941 President Ronald Reagan oversees conclusion of U.S. intelligence agen- Roosevelt asks Congress for a decla- executive branch expansion, issues cies (June). Trump orders more ration of war against Japan, the last more executive orders than any of sanctions on foreigners interfering president to make such a request. his four successors. with U.S. elections (September). . . . Federal judge says lawmakers can 1945 1998 sue President Trump for accepting Roosevelt dies in office after serv- House impeaches President Bill foreign payments (September). . . . ing 12 years and issuing 3,721 Clinton on charges of perjury and Trump says he will end automatic executive orders, more than any obstruction of justice, but Senate citizenship for those born in the U.S. other president. does not convict him. to noncitizen parents.

www.cqresearcher.com Nov. 16, 2018 979 THE PRESIDENCY

War Declarations Not Sought in Modern Times Presidents dislike “having to go to Congress and fight that out.”

n October 2017, many Americans — including senior Congress 60 days to reverse the president’s action. 7 members of Congress — were surprised to learn that U.S. But the bill has critics on both the right and left. The Trump troops were fighting in the West African nation of Niger administration said it already has “sufficient legal authority” to I 8 as part of a global anti-terrorism campaign. The revelation fight terrorists without additional congressional approval. Con- came when the Pentagon announced that four U.S. soldiers servative Sen. Rand Paul, R-Ky., said the bill subverts Congress’ had been killed there in an ambush by Islamist extremists. 1 war-making authority by requiring a veto-proof, “supermajority” The nation’s Founders gave Congress the constitutional power vote by two-thirds of both houses of Congress to reverse a to declare war, but in recent years the United States has engaged president’s expansion of conflict in a new locale. 9 By contrast, in military conflicts around the world without specific authorization under Congress’ constitutional authority to declare war, it can from Congress. 2 Since the Sept. 11, 2001, terrorist attacks in the vote down a proposed war declaration by majority vote, which United States, presidents have relied on a 17-year-old resolution instantly blocks a president from starting a war. that critics say was supposed to be limited to empowering combat Sen. Jeff Merkley, D-Ore., a member of the Senate Foreign only against the perpetrators of those attacks. Relations Committee, complained the measure empowers presi- The resolution was adopted after President George W. Bush dents to expand the scope of the U.S. war on terrorism to new asked Congress for an open-ended Authorization for Use of Military groups and geography without seeking prior authorization. “I Force (AUMF), allowing him to retaliate against those he determined don’t think the American people want an endless ever-expanding had planned or aided in the attacks. 3 Although Bush had sought war,” he said. Merkley has introduced a bill requiring the presi- even broader language, Congress insisted that military targets be dent to seek congressional approval before taking military action nations and groups associated with the 9/11 attacks, which at the against any new country or terrorist group. 10 time were al Qaeda and the Taliban in Afghanistan. 4 But such requirements likely would be opposed by any Since then, however, presidents have relied on the resolu- administration, says Scott Anderson, a fellow in governance tion to order military actions against Islamist extremist groups studies at the centrist Brookings Institution think tank and a such as the Islamic State, or ISIS, which did not exist on 9/11, former State Department lawyer. “The executive branch gets and in other countries where terrorism threats have emerged, very nervous about that, especially in a dynamic environment including Pakistan, Yemen, Somalia and Libya. 5 like Syria, where . . . enemy forces dissolve and combine and “We’re now on the third president who has just taken the change identities with some regularity,” he says. “So there’s 2001 AUMF and contorted it to fit whatever military action some concern about having to go to Congress and fight that they want to take anywhere in the world,” says Christopher out every time there’s a need to make that adjustment.” Anders, deputy director of the Washington legislative office of In a new book, Presidents of War, presidential scholar Mi- the American Civil Liberties Union. “If it’s worth going to war, chael Beschloss argues that by not seeking war declarations it’s worth going to Congress and voting specifically on that war.” presidents have “disrupted the Founders’ design.” 11 They had Some members of Congress agree. “For too long, Congress wanted a full war declaration in order to have “a full debate has given presidents a blank check to wage war,” said Sen. Tim in Congress . . . to see how much support there was for” Kaine, D-Va., citing U.S. military action against terrorist groups whatever war the president was proposing, Beschloss says. in more than a dozen countries, including Niger. 6 He and Sen. The last president to ask Congress for a declaration of war was Bob Corker, R-Tenn., have cosponsored a bill that would return Franklin D. Roosevelt, after the Japanese attack on Pearl Harbor some war-making powers to Congress. It would allow a president in December 1941. Unlike a limited authorization, a declaration of to expand military action into a new foreign country not named war creates a state of war under international law and gives the in the law but require the president to notify Congress within president authority in military, foreign trade and other arenas. 12 48 hours after introducing military force. The bill would give Authorizations, Beschloss says, are a “cheap way presidents

Continued from p. 978 serious question — that North Vietnam believed necessary to repel an armed 58,000 U.S. combat deaths — more had fired on two U.S. destroyers in the attack “or prevent further aggression.” 62 than in any other conflict except the Gulf of Tonkin off the northeast coast Congress supported the resolution Civil War and the two world wars. of Vietnam, Congress rushed through but assumed “that the president would But at first Vietnam appeared to be a resolution at Johnson’s urging. The return and seek their support before a minor conflict. On Aug. 7, 1964, Tonkin Gulf Resolution authorized the additional escalations of the war,” ac- following reports — later called into president to take any measures he cording to the State Department’s ac-

980 CQ Researcher have found to get into war without Congress really signing on.” Some political observers say Congress often uses military

authorizations because it allows members to avoid taking a Ocner J. /Matias stand on a war that could later become unpopular. It “suits both sides,” says Elizabeth N. Saunders, an associate professor in the Georgetown University School of Foreign Service. “The president can just keep relying on the existing AUMF and Congress can keep complaining about the lack of new ones” without

actually voting on the record for any new use of military force.” The Miami Herald The unpopularity of voting for war was “seared into the memory” of lawmakers when a 2002 vote for the use of mili- tary force in Iraq penalized proponents in the 2008 Democratic presidential primary, says Anders. Candidates Hillary Clinton Getty Images/ and Joseph Biden, who had voted for the Iraq war, lost. Sen. A soldier presents Myeshia Johnson with the American Barack Obama, who had voted against it, won the nomination. flag from the casket of her husband, Sgt. La David Ironically, as president, Obama undertook a bombing Johnson, on Oct. 21, 2017, in Hollywood, Fla. Johnson campaign in 2011 against Libyan leader Moammar Gadhafi and three other soldiers were killed during a battle with without congressional approval, using a novel interpretation Islamist insurgents in Niger, raising questions about the of his powers under the little-used War Powers Resolution of president’s authority to expand the fight against terrorism 1973. That act requires the president to notify Congress within without congressional approval. 48 hours of committing U.S. forces to armed conflict and limits their participation to 60 days (plus a 30-day withdrawal period) 5 Callimachi et al., op. cit. without a congressional authorization for use of military force 6 “Senators Propose Legislation to Update Authorities Used to Fight Terror or a declaration of war by the United States. But as the Obama Abroad,” press release, Office of Sen. Tim Kaine, U.S. Senate, April 16, 2018, https://tinyurl.com/yb54fffq. administration approached the 90-day deadline, it argued that the 7 See text of resolution, https://tinyurl.com/y9tnruuf. bombing campaign, in fact, did not qualify as a full-blown 8 John T. Bennett and Lindsey McPherson, “White House Brushes off war because no ground forces were involved. 13 Calls for Updated Authorization of Military Force,” Roll Call, Sept. 7, 2017, The Trump administration followed Obama’s Libya rationale https://tinyurl.com/y8smuma3. 9 “War Powers and the Effects of Unauthorized Military Engagements on to claim authority to bomb Syria’s chemical weapons facilities Federal Spending,” Opening Statement of Chairman Rand Paul, Senate last April without congressional approval, noting it “did not Federal Spending Oversight Subcommittee, Hearing, June 6, 2018, https:// plan to employ any U.S. ground troops.” 14 tinyurl.com/yb3l9e9o. 10 “Merkley introduces alternative AUMF,” press release, Sen. Jeff Merkley, — Sarah Glazer U.S. Senate, May 23, 2018, https://tinyurl.com/ybjrbyly. 11 Michael Beschloss, Presidents of War (2018), p. viii. 1 Rukmini Callimachi et al., “ ‘An Endless War,’ ” The New York Times, Feb. 12 Jennifer K. Elsea and Matthew C. Weed, “Declarations of War and 20, 2018, https://tinyurl.com/yb4othhh. Authorizations for the Use of Military Force: Historical Background and 2 “War Powers,” Cornell Law School Legal Information Institute, https:// Legal Implications,” Congressional Research Service, April 18, 2014, https:// tinyurl.com/mb3dbvr. tinyurl.com/y7gumuvj. 3 “Public Law 107-40,” Government Publishing Office, https://tinyurl.com/ 13 “Authority to Use Military Force in Libya,” Office of Legal Counsel, U.S. jgoyhty. Department of Justice, April 1, 2011, https://tinyurl.com/y8k5pxzf. 4 Steve Vladeck, “Congress’ Reluctance to Limit Trump’s War Powers is a 14 “April 2018 Airstrikes against Syrian Chemical-Weapons Facilities,” Office dangerous bipartisan failure 17 years in the making,” Think, Oct. 10, 2018, of Legal Counsel, U.S. Department of Justice, May 31, 2018, p. 20, https:// https://tinyurl.com/ydav2w3x. tinyurl.com/y8vhlzza. count. He did not. In 1965, Johnson The “Imperial” Presidency legislatively created programs and enlarg- sent U.S. combat troops to Vietnam ing the notion of executive privilege. for the first time, the start of a major n 1973, when Schlesinger wrote The At the time, Nixon, a Republican, had increase in American involvement. The I Imperial Presidency, he warned that “impounded” — refused to spend — Tonkin Gulf Resolution became the Nixon was pursuing an “audacious” $15 billion in funds that the Democratic- legal justification for Johnson and Nixon reinterpretation of the presidency’s consti- controlled Congress had appropriated to escalate and continue the war. 63 tutional power — unilaterally abolishing for more than 100 programs, claiming

www.cqresearcher.com Nov. 16, 2018 981 THE PRESIDENCY

Is Trump Violating the Emoluments Clauses? The president’s properties could invite special treatment, critics say.

s Benjamin Franklin was ending his tour as U.S. ambas- Trump turned over daily operations of the Trump Organi- sador to France in 1785, he received a diamond-encrusted zation, his family’s international real estate conglomerate, to snuffbox from King Louis XVI of France, a custom for his sons. He also agreed to donate all profits from foreign A 1 departing diplomats. Because the gift was so extravagant, some government payments made to his hotels to the United States feared Franklin might be unduly influenced by French interests, Treasury. Trump’s International Hotel in Washington has become leading the Constitution’s framers to specify that gifts or benefits a favorite of foreign dignitaries, as have his hotels and office — known as emoluments — to federal officials must be ap- towers in Chicago and New York City. proved by Congress. 2 “Why wouldn’t I stay at his hotel . . . so I can tell the Since the early 19th century, presidents have asked Congress new president, ‘I love your new hotel!’ ” an Asian diplomat said for approval to accept gifts or benefits from foreign governments. 3 shortly after the election. “Isn’t it rude to come to his city and Under the Foreign Emoluments Clause — one of two constitutional say, ‘I am staying at your competitor?’ ” 6 clauses governing emoluments — no federal official “shall, without Three lawsuits have been filed claiming that Trump has the Consent of the Congress, accept of any present, Emolument, violated the emoluments clauses: Office, or Title . . . from any King, Prince or foreign State.” The • Citizens for Responsibility and Ethics in Washington Domestic Emoluments Clause prohibits a president from receiving (CREW), an anti-corruption advocacy group, sued under the any benefits (other than his or her executive office compensation) Foreign Emoluments Clause, claiming Trump’s hospitality industry from a federal, state or local government and does not allow competitors were “injured, financially, by the uneven and unfair Congress to waive that prohibition. 4 playing field” created by Trump’s “unconstitutional conduct.” 7 The clauses have come under scrutiny recently because of • Maryland and the District of Columbia sued under the lawsuits alleging that President Trump has violated them by Foreign and Domestic clauses, claiming hospitality businesses receiving payments or benefits, including tax and regulatory and convention centers in those jurisdictions will lose business relief, from foreign and domestic governments through his and revenues due to what they say is unfair competition from businesses with full awareness of their source. Trump’s en- Trump’s Washington hotel. 8 terprises include hotels, golf courses, office towers and other • A group of nearly 200 Democratic lawmakers sued Trump, interests in more than 20 countries. He also leases the Old alleging he violated the Foreign Emoluments Clause by not Post Office building, located near the White House, from the seeking Congress’ approval before accepting benefits from federal government for his luxury Trump International Hotel. foreign dignitaries. Those benefits include rent and revenues Trump’s situation presents an unprecedented legal question: paid by foreign governments at his real estate properties Can a president knowingly receive, while in office, payments or worldwide, the suit said. 9 other benefits from foreign or domestic governments through U.S. District Judge George B. Daniels dismissed the CREW his private businesses without receiving approval from Congress? case in December 2017, saying it was up to Congress, not Prior to Trump’s election, presidents generally steered clear citizens, to decide if the clauses have been violated. 10 Trump’s of the clauses either by selling their holdings or, in the case lawyers said CREW’s damage claims in the case, which was of Bill Clinton and George W. Bush, putting their holdings filed shortly after Trump’s inauguration, were speculative. CREW in blind trusts, where the president retains ownership but is appealed, and a three-judge panel of the Second Circuit heard unaware of how the assets are managed. arguments Oct. 30. 11 Trump, by contrast, chose not to divest and instead put his In July, U.S. District Judge Peter J. Messitte in Greenbelt, Md., assets into a revocable trust run by his sons. The trust can said the Maryland and District case could proceed in what ap- be revoked by him at any time and is not “blind” because he peared to be the first decision by a federal judge interpreting knows how the assets are managed. 5 the emoluments prohibitions with regard to a sitting president. 12

it was within his constitutional power hostilities overseas. Widely regarded as by Republican operatives at the Demo- to defy Congress. Meanwhile, Congress a congressional effort to prevent future cratic Party headquarters in Washington, passed a joint resolution on Nov. 7, Vietnams, it has frequently been ignored followed by Nixon’s attempt to cover up 1973, known as the War Powers Act, by subsequent presidents from both the criminal conduct — was symptomatic which required the executive branch parties, who say it is an unconstitutional of Nixon’s “unprecedented expansion to consult with and report to Congress infringement on presidential authority. 64 of presidential power,” in Schlesinger’s before involving U.S. forces in military The Watergate scandal — a break-in view. 65 Paradoxically, that expansion

982 CQ Researcher The president’s lawyers had sought dismissal, arguing that the Domestic Emoluments Clause was designed only to bar govern- ment payments above the presidential salary or to prevent bribes, not to stop private business transactions. But Messitte said the common understanding of the definition of emoluments, citing historic dictionaries from the time of the framers, was that it “cov-

ered any profit, gain or advantage including profits from private AFP/Getty Images/Paul J. Richards transactions.” Messitte later denied a Justice Department bid to The Trump International Hotel in Washington, D.C., is one halt the proceedings pending an appeal by the department. 13 of President Trump’s businesses that receives revenues In the third lawsuit, a federal judge in Washington ruled in from foreign officials. Trump faces lawsuits alleging that such income amounts to emoluments from foreign September that 198 Democratic lawmakers have standing to sue dignitaries, which are prohibited under the Constitution. in their case against the president. The lawmakers’ attorneys Trump’s attorneys have denied wrongdoing. had argued that they have a constitutional obligation to weigh 4 in on potential emoluments provided to Trump. 14 Brian Duignan, “What is the Emoluments Clause?” Encyclopaedia Britannica, https://tinyurl.com/yaodalkp; “The Domestic Emoluments Clause,” Consti- The Trump Organization said it had donated $151,470 in tutional Accountability Center, https://tinyurl.com/yavaxy52. foreign government profits received in 2017 at its hotels and 5 “Report: Trump Assets in Revocable, not Blind, Trust,” VOA News, Feb. 4, similar businesses to the Treasury in February of that year 2017, https://tinyurl.com/ybmha3df. 6 but released no details on how much profit the organization Jonathan O’Connell and Mary Jordan, “For foreign diplomats, Trump hotel is 15 place to be,” The Washington Post, Nov. 18, 2016, https://tinyurl.com/yae22vvy. received or from which governments. According to The 7 Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, Washington Post, Saudi lobbyists spent $270,000 on rooms at Case 1:17-cv-00458, U.S. District Court for the Southern District of New Trump’s Washington hotel in 2017, and Trump-owned proper- York, Jan. 23, 2017, https://tinyurl.com/y8mjt9hj. 8 ties in New York and Chicago have seen significant increases The District of Columbia and the State of Maryland v. Donald J. Trump, 16 U.S. District Court, District of Maryland, Complaint, June 12, 2017, https:// in bookings from Saudi and Qatari dignitaries. tinyurl.com/y6ub6gg6. Several constitutional law experts have said it is unclear 9 Sen. Richard Blumenthal et al., v. Donald J. Trump, U.S. District Court how the Trump Organization defined “profits” and that without for the District of Columbia, June 14, 2017, https://tinyurl.com/yaatmx4g. 10 details from the company it would be impossible to verify. Scott Bomboy, “An update on the Emoluments cases,” Constitution Daily, Aug. 1, 2018, https://tinyurl.com/y99fvg92. Moreover, while the president maintains his financial inter- 11 “Crew v. Donald J. Trump,” Citizens for Responsibility and Ethics in ests, his businesses could be “magnets for special treatment in Washington, https://tinyurl.com/y8rjbe57. Also see Adam Klasfeld, “Panel commerce, taxation, regulation, and investigation — benefits Presses Trump Admin in Emoluments Appeal,” Courthouse News Service, Oct. 30, 2018, https://tinyurl.com/ydgrmw49. from foreign powers that qualify as gifts or emoluments,” 12 The District of Columbia and State of Maryland v. Donald J. Trump, according to Harvard constitutional law professor Laurence “Opinion,” U.S. District Judge Peter J. Messitte, U.S. District Court for the Tribe, who wrote a brief in the CREW case against Trump. 17 District of Maryland, July 25, 2018, pp. 21, 30, https://tinyurl.com/y8cgsfa2. 13 Ibid., pp. 21, 30; Jonathan O’Connell and David A. Farenthold, “Judge — Sarah Glazer denies Trump’s request to stay emoluments suit,” The Washington Post, Nov. 2, 2018, https://tinyurl.com/y86f3txu. 14 Marimow, op. cit.; Associated Press, op. cit. 1 Alan McDuffee, “This diamond gift to Benjamin Franklin is the reason 15 Lorraine Woellert, “Trump organization sends $151,470 in foreign profits Donald Trump can’t benefit from the presidency,” Timeline, Sept. 22, 2017, to Treasury,” Politico, March 9, 2018, https://tinyurl.com/yaal8y5x. https://tinyurl.com/ybfaxjaq. 16 David A. Fahrenthold and Jonathan O’Connell, “Business at Trump’s hotels 2 Zephyr Teachout, “What the Clintons Can Learn from Ben Franklin’s has declined since he took office, but Saudis have boosted his Chicago Foreign Money Scandal,” The Daily Beast, May 3, 2015, https://tinyurl. tower,” The Chicago Tribune, Oct. 11, 2018, https://tinyurl.com/y9fvsgbd. com/yb2p76kk. 17 Nik DeCosta-Klipa, “Experts say President Trump is violating the Constitution,” 3 Ibid. boston.com, Jan. 31, 2017, https://tinyurl.com/jbbd52q. reinvigorated the separation of powers, Nixon ordered Attorney General Elliot attempt, similarly, to fire those overseeing triggering congressional and judicial ef- Richardson to fire special prosecutor the Russia investigation. forts to rein in Nixon’s attempts to block Archibald Cox, who was investigating Nixon also fought the special pros- congressional and Justice Department the Watergate affair. Richardson refused ecutor’s subpoena of Oval Office audio investigations into the scandal. and resigned. The massacre has become tapes, invoking presidential “executive On Oct. 20, 1973, in an incident a frequently mentioned touchstone in privilege” to keep confidential con- known as the “Saturday night massacre,” speculation about whether Trump would versations secret. The Supreme Court

www.cqresearcher.com Nov. 16, 2018 983 THE PRESIDENCY unanimously disagreed, saying the tapes the first time in 40 years and began Congressional impasses over bud- must be released. The tapes revealed investigating Clinton over allegations of gets and other issues have intensified that Nixon clearly had obstructed justice sexual misconduct. in the past decade due to increased in covering up the break-in. 66 On Dec. 19, 1998, the House passed control exerted by the majority party In July 1974, the House Judiciary Com- two impeachment articles: for perjury and changes they’ve made in con- mittee voted three articles of impeachment (lying to a federal grand jury) and gressional rules, according to a new against the president, charging him with for obstruction of justice, stemming report from The Washington Post and obstruction of justice, abuse of power and from a sexual harassment lawsuit by ProPublica. Party leaders, for instance, contempt of Congress. Nixon resigned Arkansas state employee Paula Jones have limited the number of votes on before the inevitable impeachment by and an affair with White House intern floor amendments in the Senate and, the full House, and his successor, Gerald Monica Lewinsky. (This was the first in some cases, closed off amendments Ford, pardoned Nixon for any crimes he time since 1868, when Andrew John- entirely. And committees in both houses might have committed. 67 son was in the White House, that the meet significantly less often to consider legislation, the report said. Congress has become a weakened branch of the government, where “debate is strictly curtailed, party leaders dictate the agenda, most elected representa- tives rarely get a say and government shutdowns are a regular threat.” 70 In 2016, Trump, a real estate devel- oper with no government experience, won the presidency, campaigning against such Republican Party tenets as free trade and international engage- ment. During his campaign and the first year and a half of his presidency, he defied bipartisan consensus around Getty Images/Smith Collection President George W. Bush addresses a joint session of Congress on Sept. 20, international trade agreements, pledged 2001, shortly after the 9/11 terrorist attacks in the United States. Congress to crack down on undocumented im- adopted a resolution that allowed Bush to use military force against nations or migrants and build a wall on the U.S.- groups he determined were involved in the attacks. Bush and his successors Mexico border. Many of his executive have used the order to authorize attacks on other countries and Islamist targets, orders were promptly challenged in raising questions about limits on presidential war-making powers. court, including some of more than 70 Age of Gridlock House had impeached a president.) environmental regulations the adminis- The Senate, acting as jury, rejected tration sought to roll back. 71 resident Reagan was elected on the perjury charge and split 50/50 P a campaign to limit government, on the obstruction charge, failing to but the trend toward an expanded reach the required two-thirds vote to executive branch continued. convict on Feb. 12, 1999. 69 CURRENT Reagan promised to cut two Cabinet Clinton and Obama both faced agencies, the departments of Energy congressional gridlock, which was on and Education, but instead added one, the rise after 1995, when Republicans SITUATION Veterans Affairs, now one of the federal took control of Congress. Republi- government’s largest. Under Reagan the cans, who held both houses until federal debt almost tripled as he slashed 2006, vowed not to compromise with Russia Probe taxes and expanded the military, and the Democrats. The Democrats regained federal workforce rose from 4.1 million control of both houses in 2007, but pecial counsel Mueller’s investiga- to almost 5.3 million. 68 the Republicans took back the House S tion of Russian interference in the During the Democratic Clinton after Obama’s second year in office, 2016 elections is expected to result administration, Republicans regained and took over both houses in 2015. in more court action and potentially control of both houses of Congress for (See graph, p. 976.) Continued on p. 986

984 CQ Researcher At Issue:

Doesyes a U.S. president have the authority to pardon himself?

ROBERT NIDA BRIAN KALT ATTORNEY, NIDA & ROMYN, P.C., AND LAW PROFESSOR AND HAROLD NORRIS CO-AUTHOR WITH REBECCA L. SPIRO, FACULTY SCHOLAR, MICHIGAN STATE “THE PRESIDENT AS HIS OWN JUDGE UNIVERSITY, AND AUTHOR, CONSTITU- AND JURY: A LEGAL ANALYSIS OF THE TIONAL CLIFFHANGERS: A LEGAL GUIDE PRESIDENTIAL SELF-PARDON POWER,” FOR PRESIDENTS AND THEIR ENEMIES OKLAHOMA LAW REVIEW, 1999 WRITTEN FOR CQ RESEARCHER, NOVEMBER 2018 WRITTEN FOR CQ RESEARCHER, NOVEMBER 2018 obody knows for sure whether a presidential self- merican history and jurisprudence concur with the pardon would hold up in court. If I were the judge, view that the U.S. president has the constitutional though, I would rule it invalid for three reasons. authority to pardon himself or herself. nReason 1 is textual. The Constitution does not explicitly aIn debating the Constitution, Virginia Delegate Edmund rule out self-pardons, but the pardon power is limited by Randolph advocated against presidential pardon authority for the definition of the word “pardon.” For instance, pardons acts of treason since “the President may himself be guilty.” At are only for past acts; they cannot forgive future crimes. This the Constitutional Convention of 1787, a proposal seeking to limit, while not explicitly recited in the Constitution, is im- require Senate consent for pardons was defeated, while Delegates plicit in the definition of a pardon. Similarly, a self-pardon is James Wilson and Alexander Hamilton advocated for a strong not a “pardon.” Pardons are inherently bilateral: something presidential pardon authority. The Constitution ultimately one grants to someone else. It would not make sense to “do- was ratified with an unlimited executive pardon power for nate” money to yourself or “condone” your own actions (two “Offenses against the United States,” except in “Cases of Im- words with the same Latin root as “pardon”). Thus, pardoning peachment.” yesThe language has no other restrictions. no oneself makes no sense. Historically, the courts have affirmed the president’s nearly Reason 2 is the principle that a person cannot be the limitless pardon power. In 1866, in Ex Parte Garland, the judge in his own case. The Supreme Court has recognized Supreme Court ruled: “Congress can neither limit the effect of this principle as “a mainstay of our system of government,” his pardon, nor exclude from its exercise any class of offend- although it is not stated explicitly in the Constitution. Self- ers,” and “the power thus conferred is unlimited, with the pardons are directly incompatible with this axiom. [impeachment] exception stated. It extends to every offence Reason 3 is historical. To the Founders, the impossibility known to the law, and may be exercised at any time after its of self-pardons seems to have gone literally without saying. commission, either before legal proceedings are taken, or dur- For instance, Alexander Hamilton noted in Federalist Paper ing their pendency, or after conviction and judgment.” No. 69 that a criminal president could be removed from office The president’s pardon power has been controversial since and “would afterwards be liable to prosecution and punish- George Washington first issued pardons in response to the ment in the ordinary course of law.” Hamilton was either Whiskey Rebellion and Thomas Jefferson pardoned his “political relying on an unrestrained criminal being a restrained par- supporters” convicted under the Alien and Sedition Act. During doner (unlikely) or he presumed that everyone understood Richard Nixon’s final days in office, Solicitor General Robert Bork self-pardons to be impossible (likely). concluded that the president had criminal immunity due to the Similar evidence appears in James Madison’s notes from self-pardon power. But when Chief of Staff Alexander Haig pre- the Constitutional Convention. Edmund Randolph moved to sented Nixon with the option to self-pardon, Nixon declined. forbid presidents from pardoning treason, noting: “The Presi- When President George H. W. Bush pardoned six aides in dent may himself be guilty.” Randolph’s motion failed after the Iran-Contra scandal, he effectively shut down the prosecu- James Wilson responded that “[i]f [the president] be himself tion that may have implicated his own conduct. Independent a party to the guilt he can be impeached and prosecuted.” Counsel Lawrence Walsh questioned whether the pardons Wilson’s argument — let the traitor-president pardon his were “an act of friendship or an act of self-protection.” traitor-cronies; we can still prosecute him — surely would For two decades I have proposed a constitutional amend- not have carried the day had the delegates believed in self- ment to prohibit a president from shielding himself or herself pardonability. from criminal prosecution by self-pardon. As Aristotle noted: If a self-pardon case ever arises, there would be room “The only stable state is the one in which all men are equal for courts to rule either way, but the argument against self- before the law.” No person should be able to avoid the con- pardonability is by far the better one. Ideally, though, this sequencesno of his or her criminal conduct. hypothetical question will ever remain hypothetical.

www.cqresearcher.com Nov. 16, 2018 985 THE PRESIDENCY

Continued from p. 984 “Republicans in the House have been “malign activity,” including meddling more revelations. As of Oct. 10, seven acting as President Trump’s defense coun- in U.S. elections. 80 people have pleaded guilty or been sel,” Rep. Elijah Cummings, D-Md., who Perennial questions about presiden- convicted in connection with the probe, is expected to head the oversight panel, tial exercise of war powers could also and more than two dozen others have said the day after the midterms. “We are come up in the next session of Congress. been indicted. 72 required to be a check and balance over Bipartisan legislation introduced in the Thus far, however, the investigation the executive branch. We haven’t been Senate aims to give Congress a greater has not resulted in indictments linking doing that because Republicans have role in anti-terrorism military actions by Trump aides to a conspiracy with Rus- been aiders and abettors.” 77 the White House, but it faces opposition sian officials. Another reported focus The House Intelligence Committee from both the left and right. 81 of the investigation, whether Trump investigated the question of Russian Meanwhile, a U.S. District Court obstructed justice by firing Comey, interference in the 2016 election and judge ruled in September that a group also has not resulted in indictments. 73 concluded the Trump campaign did of about 200 congressional Democrats However, the future of the investiga- not collude with the Russians. 78 have standing to sue Trump on charges tion was put in doubt the day after the Inquiries by the Democrats could of violating the Constitution’s emolu- Nov. 6 midterms, when Trump named look into possible connections between ments clause by accepting payments Sessions’ chief of staff and a longtime Trump and the Russians and potential from foreign dignitaries for stays at Mueller critic, Mathew G. Whitaker, as act- conflicts of interest in his family’s busi- Trump’s hotels or leases at his com- ing attorney general to replace Sessions. ness operations and among his political mercial properties. 82 Democrats vowed to pursue their appointees. Momentum for impeach- “This gives Congress an opportunity own Russia probes after they take ment had been widely predicted if the to invoke our congressional right to control of the House in January and to Democrats won control of the House, make sure that the president is loyal to counter any administration attempts to but Democratic leader Nancy Pelosi has the U.S. and not to his own pocketbook,” shut down the Mueller investigation. 74 downplayed talk of impeachment since said Rep. Jerrold Nadler, D-N.Y., one In April, the Senate Judiciary Com- the elections, stressing the need to pass of those who filed the suit. 83 Trump’s mittee had passed a bipartisan measure legislation that has bipartisan support. attorneys in the cases have denied that stating that Mueller could be fired only by Still, some analysts said impeach- the president has violated the clauses. a senior Justice Department official and ment might be the last resort for House that such a firing could be challenged in Democrats if Trump shuts down the court. But the Republican Senate leader- Mueller probe. “Strict readers of the Going to Court ship refused to move the bill forward, Constitution might say that’s really the saying it was “not necessary.” 75 only proper resolution here to begin he Trump administration has In late October, Mueller’s investiga- with,” the University of Baltimore’s T pursued at least 143 “significant” tors reportedly were questioning Trump Wehle told NPR. “And if there’s wrong- deregulatory actions, according to a associates about whether political con- doing by the president it should be new Brookings Institution report. sultant Roger Stone, a longtime Trump impeachment.” 79 However, of the 19 executive actions ally, had previous knowledge of the Lawmakers from both parties con- — mostly involving environmental reg- October 2016 release by WikiLeaks of tinue to criticize Trump for not coming ulations — that have been challenged Democratic emails that prosecutors say down harder on Russia for meddling in court so far, the administration has were hacked by Russian operatives. 76 with U.S. elections. Trump signed an prevailed in only one, Brookings said. 84 executive order on Sept. 12 authoriz- By late October, the Trump admin- ing the president to impose additional istration was “on a staggering litigation Congress vs. the sanctions on foreigners found to have losing streak, with restraining orders Presidency interfered with U.S. elections, but it littering the legal battlefield from coast was widely seen by Trump’s critics, to coast,” Fred Barbash, an editor at The s they prepare to take over the Democrats and Republicans alike, as Washington Post, wrote in a blog. About A House in January, Democrats say an effort to prevent more-aggressive 40 to 50 federal judges have ruled against they have a list of more than five dozen legislation. However, the administra- the administration so far, he estimated. 85 subpoenas aimed at the administration tion has taken other steps to crack Such litigation is expected to con- that were blocked by the powerful House down on Russia, including sanction- tinue to play out over the coming year, Oversight and Government Reform Com- ing seven Russian oligarchs and 17 as interest groups continue to challenge mittee under Republican control. top government officials last April for the White House’s deregulation efforts

986 CQ Researcher and as the administration appeals court A former Trump national security Milkis of the University of Virginia injunctions blocking those orders. official, Michael Anton, had floated the predicted that Americans in coming Court opinions went against the idea of an executive order this summer, years might decide to limit the presi- administration in others areas as well, saying Trump would just be clarify- dency again and give more power to including its attempt to rescind the ing the amendment’s original intent Congress and the states. 92 DACA “Dreamers” program, blocked by — to exclude children of noncitizens But he does not see that happening a federal appeals court on Nov. 8 and because they are not “subject to the anytime soon. “The whole country loves likely headed to the Supreme Court. jurisdiction” of the United States. 91 presidential power,” he says, predicting Courts also obstructed his proposed If issued, the order likely would be that “the Democrats — as much as they ban on transgender people serving in challenged in court. hate Trump — are looking forward to hav- the military and the administration’s If such an order reached the Supreme ing a president willing to go further than family separation policies for would-be Court, it would likely be the first big Obama” in exercising executive power. immigrants and asylum seekers arriving test of presidential power in the newly Some experts also worry that Trump’s at the U.S.-Mexico border. At least four solidified conservative-majority court “America First” beliefs could hurt future courts have blocked the administration’s since Kavanaugh’s confirmation. U.S. presidents on the international stage. efforts to withhold federal funds from Historian Suri says that many people “sanctuary cities,” jurisdictions that limit around the world once viewed the U.S. their cooperation with federal immi- president as a world leader — not just gration enforcement agents in order OUTLOOK a partisan one. “For the president to say to protect low-priority undocumented at the United Nations that we only care immigrants from deportation. 86 about the United States shatters this,” he In a speech to the conservative says, “and I think we will pay much Heritage Foundation in October, then- Bully Pulpit higher transaction costs in the future.” Attorney General Sessions attributed Former Bush Justice official Goldsmith the losses to “judicial encroachment” on egardless of how Donald Trump’s has been compiling a “hopeful” analysis the executive and legislative branches, R presidency plays out — and his of how the Constitution has “prevented which he said are the “constitutionally supporters stress he was elected to presidential law-breaking” — highlight- authorized branches” for enforcing blow up many of the nation’s political ing the continued independence of the policy in areas such as immigration. 87 traditions and inject his own provoca- Mueller investigation and subsequent In turn, some judges have complained tive style into the ways of Washington court convictions. But he also envisions of what they see as presidential over- — the long-standing trend toward an alternative scenario in which the reach. “It falls to us, the judiciary . . . growing presidential powers will likely current president sparks a constitutional to act as a check on such usurpation of continue, presidential scholars say. crisis exceeding that of Watergate. power,” wrote Seventh Circuit Court of The president’s ability to mold public “What if Mueller finds evidence that Appeals Judge Ilana Rovner. 88 opinion far outstrips that of Congress, Trump colluded with the Russians, In October, Trump told an interviewer as Trump has shown. He is a populist and Trump fires not just Mueller but that he had an executive order “in the with a uniquely “intravenous” way of also scores of others in the Justice process” to deny birthright citizenship relating to his political base via Twitter, Department, and pardons himself and to children of noncitizens. To do so, according to University of Virginia presi- everyone else involved?” Goldsmith Trump would have to reinterpret or dential historian Balogh. “If there’s one asked. “The Constitution has held amend the 14th amendment, which power that has increased under Donald thus far and might continue to do so says, “All persons born or naturalized Trump, it’s the bully pulpit,” he says. under more-extreme circumstances. in the United States and subject to the For Congress to push back against But it also might not.” 93 jurisdiction thereof, are citizens of the the executive branch, says Georgetown’s United States and of the State wherein Saunders, it needs more foreign policy they reside.” 89 and national security expertise. “It’s not Notes Civil rights groups and leading mem- as though congressional expertise can bers of Trump’s own party objected be regenerated overnight or even in one 1 James M. Goldgeier and Elizabeth N. Saunders, on the grounds it would be uncon- election,” she says. Thus, even when “The Unconstrained Presidency,” Foreign Affairs, stitutional. “You cannot end birthright Trump leaves office, “that’s not going Aug. 14, 2018, https://tinyurl.com/y9lmrg8k; citizenship with an executive order,” to be enough to restore Congress to its “How Trump is Rolling Back Obama’s Legacy,” said House Speaker Paul Ryan, R-Wis. 90 previous rule.” The Washington Post, Jan. 20, 2018, https://

www.cqresearcher.com Nov. 16, 2018 987 THE PRESIDENCY

tinyurl.com/ybbydp2s; John Wagner, “Trump 14 Devlin Barrett, Matt Zapotosky and Josh 30 Nikki Schwab, “Brennan doubles down on says he has ‘absolute right’ to pardon himself,” Dawsey, “Jeff Sessions forced out as attorney Trump ‘treason’ comment,” New York Post, The Washington Post, June 4, 2018, https:// general,” The Washington Post, Nov. 7, 2018, Aug. 19, 2018, https://tinyurl.com/ybvpy92s. tinyurl.com/ybat3mqm. https://tinyurl.com/yd8k75gm. Ellen Nakashima, “’It breeds resistance,’ ” 2 Peter H. Schuck and Rogers M. Smith, 15 David Frum, Trumpocracy (2018), p. 4. The Washington Post, Sept. 29, 2018, https:// “Trump is half-right. Congress can end 16 “Frequently Asked Questions,” U.S. Citizen- tinyurl.com/y7p4kd8e; Mark Morales et al., birthright citizenship,” The Washington Post, ship and Immigration Services, https://tinyurl. “Security Clearances,” CNN, Aug. 17, 2018, Oct. 31, 2018, https://tinyurl.com/ycybnvol. com/y9xgrhek. https://tinyurl.com/ybcnmqsp. 3 Goldgeier and Saunders, op. cit. 17 Frum, op. cit., p. 5. 31 Nakashima, op. cit. “Trump says he’s 4 Ibid. 18 “Status of Current DACA Litigation,” Na- considering pardon for Manafort,” Reuters, 5 Editorial, “Obama Administration: Constitu- tional Immigration Law Center, Sept. 6, 2018, Aug. 22, 2018, https://tinyurl.com/yb2zlyw6. tion’s Treaty Clause is Dead,” Investors Daily, https://tinyurl.com/ydh2kfg8. 32 Eric Lichtblau and Davan Maharaj, “Clinton July 29, 2015, https://tinyurl.com/y9oj82uv. 19 Alex Seitz-Wald, “How Newt Gingrich pardon of Rich a saga of power, money,” Los Unlike treaties, executive agreements do crippled Congress,” The Nation, Jan. 30, 2012, Angeles Times, Feb. 18, 2001, https://tinyurl. not require the advice and consent of the https://tinyurl.com/zg6fyl6. Also see Steve com/y7ccu2yr. Senate but are regarded as binding under Kornacki, The Red and the Blue: The 1990s 33 Charles R. Kesler, “Breaking Norms Will Renew international law. U.S. Senate, “Treaties,” and the Birth of Political Tribalism (2018). Democracy, Not Ruin It,” The New York Times, https://tinyurl.com/y7fbepns. 20 Greg Walters, “Democrats Just Won the Aug. 23, 2018, https://tinyurl.com/yc3flmzw. 6 Peter Baker, “A Partisan War Awaits Trump,” House,” VICE News, Nov. 7, 2018, https:// 34 Goldsmith, “Will Donald Trump Destroy The New York Times, Nov. 7, 2018, https:// tinyurl.com/ycjcb9bh. the Presidency?” op. cit. tinyurl.com/y9jh2cez. 21 “Trump in Action,” American Presidency Proj- 35 John Dickerson, “The Hardest Job in the 7 Ibid. ect, April 29, 2017, https://tinyurl.com/y9445z9a. World,” The Atlantic, May 2018, https://tinyurl. 8 “Executive Orders,” The American Presi- 22 Jason Zengerle “How the Trump Administra- com/y8t45u4j. For current White House and dency Project, March 22, 2018, https://tinyurl. tion is Remaking the Courts,” NYT Magazine, federal government numbers, see: Trump com/yaen6r74. Aug. 22, 2018, https://tinyurl.com/y7ved8wz. FY 2018, Congressional Budget Submission, 9 Sidney M. Milkis and Nicholas Jacobs, “ ‘I 23 Jack Goldsmith, “Trump’s Nuclear Option,” https://tinyurl.com/yaem4zbc; and “Federal Alone Can Fix It,’: The Forum, 2017, https:// The Weekly Standard, Aug. 22, 2018 https:// Employees by State,” Governing, https:// tinyurl.com/y934xc9m. tinyurl.com/ybf5oy6t. tinyurl.com/pnwpvp8. 10 Gregory Korte, “Obama issues ‘executive 24 Eric A. Posner, “The Dictator’s Handbook, 36 Jeremi Suri, The Impossible Presidency: orders by another name,’ ” USA Today, Dec. 16, US Edition,” in Cass Sunstein, ed., Can It The Rise and Fall of America’s Highest Office 2014, https://tinyurl.com/y7mcwl2r. Happen Here? (2018), pp. 5-7. (2017), p. ix. 11 “April 2018 Airstrikes against Syrian 25 Frum, op. cit., pp. xi-xii. 37 Arthur M. Schlesinger Jr., The Imperial Chemical-Weapons Facilities,” Office of Legal 26 Kim Wehle, “Trump is testing constitutional Presidency (1973), pp. 383-384. Counsel, U.S. Department of Justice, May 31, safeguards against unbridled government 38 Ibid., pp. 384, 386. 2018, https://tinyurl.com/y8vhlzza. power,” The Hill, May 11, 2018, https://tinyurl. 39 Dickerson, op. cit. 12 Debra Cassens Weiss, “Supreme Court upholds com/ybspcaar. 40 Shirley Anne Warshaw, “The Struggle to Trump’s travel ban, cites national security justifi- 27 Goldgeier and Saunders, op. cit. Govern in the Obama White House,” American cation,” ABA Journal, American Bar Association, 28 Amber Phillips, “All the ways House Political Science Association, Sept. 3-6, 2015. June 26, 2018, https://tinyurl.com/ybaqhbgx. Democrats are planning to make Trump’s life 41 John Adams, “Thoughts on Government,” 13 Jack Goldsmith, “The President Can’t Kill the miserable next year,” The Washington Post, 1776, https://tinyurl.com/yambxgvy. Mueller Investigation,” Lawfare, Jan. 1, 2018, Oct. 16, 2018, https://tinyurl.com/y8eql4g2. 42 In Federalist 51, cited in Daryl J. Levinson https://tinyurl.com/y8wojues. Jack Goldsmith, 29 Jonah Goldberg, “The Pittsburgh Massacre and Richard H. Pildes, “Separation of Parties, “Will Donald Trump Destroy the Presidency?” Wasn’t Trump’s Fault, but He’s Not Helping,” Not Powers,” Harvard Law Review, 2006, pp. The Atlantic, October 2017, https://tinyurl. National Review, Oct. 31, 2016, https://tinyurl. 2, 6, https://tinyurl.com/lokuclv. com/y7us2kz6. com/y98ueeoo. 43 Suri, op. cit., pp. 18-19. 44 Ibid. 45 Schlesinger, op. cit., p. viii. Jennifer K. Elsea About the Author and Matthew C. Weed, “Declarations of War and Sarah Glazer is a New York-based freelancer who con- Authorizations for the Use of Military Force: tributes regularly to CQ Researcher. Her articles on health, Historical Background and Legal Implications,” Congressional Research Service, April 18, 2014, education and social-policy issues also have appeared in p. 4, https://tinyurl.com/y7gumuvj. The New York Times and The Washington Post. Her re- 46 Michael Beschloss, Presidents of War (2018), cent CQ Researcher reports include “The Israeli-Palestinian p. viii. Conflict” and “Universal Basic Income.” She graduated from 47 “Presidential Vetoes,” Washington Papers, the University of Chicago with a B.A. in American history. https://tinyurl.com/yac5xqlh. 48 Suri, op. cit., p. 63.

988 CQ Researcher 49 “Presidential Vetoes,” History, Art and Archives, U.S. House of Representatives, Aug. 16, 2017, https://tinyurl.com/ybjxmulk. Also see “Vetoes,” FOR MORE INFORMATION U.S. Senate, https://tinyurl.com/y8eg6ffh. 50 Beschloss, op. cit., p. 5. The American Presidency Project, University of California, Santa Barbara; 51 Suri, op. cit., p. 83; ibid., pp. 5, 434. www.presidency.ucsb.edu. Nonpartisan online source of presidential documents. 52 Ibid., Suri, p. 85. Citizens for Responsibility and Ethics in Washington, 455 Massachusetts 53 Ibid., p. 101. Ave., N.W., Washington, DC 20001; 202-408-5567; www.citizensforethics.org. Advo- 54 Ibid., pp. 155, 163. American Presidency cacy group that has sued President Trump for violating the Emoluments Clause Project, op. cit. of the Constitution. 55 Ibid., pp. 155-157. Claremont Institute, 1317 W. Foothill Blvd, Suite 120, Upland, CA 91786; 909- 56 Ibid., p. 158. 57 981-2200; www.claremont.org. Conservative think tank that aims to “restore the “Declarations of War and Authorizations principles of the American Founding to their rightful preeminent authority in our of Military Force,” Congressional Research national life.” Service, April 18, 2014, p. 4. 58 Suri, pp. 173-4. Miller Center, P.O. Box 400406, University of Virginia, Charlottesville, VA 22904; 59 Schlesinger, op. cit., p. 133. 434-924-7236; millercenter.org. Nonpartisan think tank that focuses on the presi- dency, past and present. 60 “Cuban Missile Crisis,” History, https:// tinyurl.com/yb83yomu. National Constitution Center, Independence Mall, 525 Arch St., Philadelphia, 61 Schlesinger, op. cit., p. 176. PA 19106; 215-409-6600; constitutioncenter.org. Nonpartisan center established by 62 “Vietnam War U.S. Military Fatal Casualty Congress that disseminates information about the Constitution. Statistics,” National Archives, undated, https:// tinyurl.com/y8y276ob; Schlesinger, op. cit., ate panel advances bipartisan bill,” MSNBC, deregulate,” Brookings Institution, Oct. 25, 2018, p. 179. April 26, 2016, https://tinyurl.com/y8jouwaw. https://tinyurl.com/ycz56alj. 63 Schlesinger, ibid., p. 178. “U.S. Involvement 76 Robert Costa et al., “Mueller probes Roger 85 Fred Barbash, “The Trump administration’s in the Vietnam War: the Gulf of Tonkin and Stone’s interactions with Trump campaign crazy losing streak in the courts,” The Washington escalation, 1964,” Office of the Historian, U.S. and timing of WikiLeaks release of Podesta Post, Oct. 19, 2018, https://tinyurl.com/y88vk5qp. Department of State, https://tinyurl.com/o3hh6et. emails,” The Washington Post, Oct. 30, 2018, 86 Robert Barnes, “Trump can’t end DACA 64 Schlesinger, ibid., pp. 273-279; Library of https://tinyurl.com/y9z726b6. appeals, appeals court panel says,” The Wash- Congress, “War Powers,” https://tinyurl.com/ 77 Walters, op. cit. ington Post, Nov. 8, 2018, https://tinyurl.com/ hcemcxx. 78 “Republican-led House panel says no evidence ya2zye95. See Deanna Paul, “Trump’s order 65 Schlesinger, op. cit., p. 275. Trump colluded with Russia,” The Guardian, threatening to withhold funding from sanc- 66 Allan J. Lichtman, The Case for Impeachment April 27, 2018, https://tinyurl.com/ybtte2mo. tuary cities is unconstitutional, court rules,” (2018), p. 31. 79 “Reaction to Sessions’ Resignation,” NPR, The Washington Post, Aug. 1, 2018, https:// 67 Ibid., p. 42. Nov. 8, 2018, https://tinyurl.com/y9lt3zkn. tinyurl.com/yaewvwkg. 68 Michael Kinsley, “The Irony and the Ecstasy,” 80 “Trump administration hits 24 Russians 87 “Attorney General Jeff Sessions Delivers Vanity Fair, Dec. 8, 2014, https://tinyurl.com/ with sanctions over ‘malign activity,’ ” The Remarks to the Heritage Foundation on Judicial yd355nxa. Also see Alex Park, “These Charts Guardian, April 6, 2018, https://tinyurl.com/ Encroachment,” Department of Justice, Oct. 15, Show How Ronald Reagan Actually Expanded ya4aa6de. 2018, https://tinyurl.com/yb8cxa8a. the Federal Government,” Mother Jones, Dec. 81 “SJ Res 59,” Congress.gov, https://tinyurl.com/ 88 City of Chicago v. Jefferson B. Sessions III, April 30, 2014, https://tinyurl.com/ydhm7sco. yalo5pex. See Conor Friedersdorf, “Congress 19, 2018, p. 3, https://tinyurl.com/ydfwoumj. 69 “This day in history: Clinton impeachment May Declare the Forever War,” The Atlantic, 89 Jonathan Swan and Stef W. Kight, “Exclu- trial begins,” History.com, https://tinyurl.com/ June 12, 2018, https://tinyurl.com/yavxylhb. sive: Trump targeting birthright citizenship yddjrpm4. 82 Scott Bomboy “An update on the Emolu- with executive order,” Axios, Oct. 30, 2018, 70 Paul Kane and Derek Willis, “Laws and ments cases,” Constitution Daily, National Con- https://tinyurl.com/y7hcoalw. Disorder,” The Washington Post, Nov. 5, 2018, stitution Center, Aug. 1, 2018, https://tinyurl. 90 Kevin Liptak and Devan Cole, “Trump https://tinyurl.com/ydd5mujl. com/y99fvg92; Thomas Kaplan, “Trump’s claims he can defy Constitution and end 71 “76 Environmental Rules on the Way Out Focus on a Washington Building Project birthright citizenship,” CNN, Oct. 31, 2018, Under Trump,” The New York Times, July 6, Draws Scrutiny,” The New York Times, Oct. 18, https://tinyurl.com/yazxv38l. 2018, https://tinyurl.com/ya3523z6. 2018, https://tinyurl.com/y8kt5k45. 91 Michael Anton, “Citizenship shouldn’t be 72 “Mueller Indictments: Who’s Who,” The 83 Katie Benner, “Judge denies Trump’s request a birthright,” The Washington Post, July 18, Wall Street Journal, Oct. 10, 2018, https:// to dismiss emoluments lawsuit,” The New 2018, https://tinyurl.com/ydaku9oh. tinyurl.com/ya9lbld6. York Times, Sept. 28, 2018, https://tinyurl. 92 “The Unique Invention of the American 73 Ibid. com/ycty8gxp. President,” VOA, Jan. 21, 2018, https://tinyurl. 74 Baker, op. cit. 84 Connor Raso, “Trump’s deregulatory efforts com/y8x4g8my. 75 “Summary: S2644,” Congress.gov, https:// keep losing in court — and the losses could 93 Goldsmith, “Will Donald Trump Destroy tinyurl.com/y86zhxpp; Steven Benen, “Sen- make it harder for future administrations to the Presidency?” op. cit.

www.cqresearcher.com Nov. 16, 2018 989 Bibliography Selected Sources

Books A professor of international relations at American University (Goldgeier) and an associate professor in the Georgetown Uni- Beschloss, Michael, Presidents of War: The Epic Story versity School of Foreign Service (Saunders) argue that the foreign from 1807 to Modern Times, Crown, 2018. policy powers of the presidency have become “unconstrained” by A historian traces how presidents have waged war since the Congress — a problem they date back to the Cold War’s end. Madison administration, arguing that they have seized the war- making powers that the Constitution delegated to Congress. Goldsmith, Jack, “Trump’s Nuclear Option,” The Weekly Standard, Aug. 22, 2018, https://tinyurl.com/ybf5oy6t. Frum, David, Trumpocracy: The Corruption of the A Harvard law professor, who was assistant attorney gen- American Republic, Harper, 2018. eral in the George W. Bush administration, predicts that the A former speechwriter for Republican President George justice system would defeat efforts by Trump to shut down W. Bush argues that President Trump has defied traditional the Russia investigation. limits on presidential authority and that this defiance, along with his attacks on the press and the courts, is pushing the Kalt, Brian C., “Pardon Me: The Constitutional Case United States closer to a dictatorship. Against Presidential Self-Pardons,” Yale Law Journal, 106:779, 1997, https://tinyurl.com/y83psvry. Lewis, Michael, The Fifth Risk, W.W. Norton & Com- A Michigan State University law professor argues that the pany, Inc., 2018. Constitution does not permit a president to pardon himself. A best-selling author says President Trump has been neglectful in how he manages executive agencies, significantly changing Kesler, Charles R., “Breaking Norms Will Renew Democ- how certain laws are implemented. racy, Not Ruin It,” The New York Times, Aug. 23, 2018, https://tinyurl.com/yc3flmzw. Schlesinger Jr., Arthur M., The Imperial Presidency, A senior fellow at the conservative Claremont Institute think Houghton Mifflin, 1973. tank and professor of government at Claremont McKenna College A historian and former adviser to Democratic President John argues that Trump has broken political traditions for good reasons. F. Kennedy popularized the term “imperial presidency” in this classic work that traces the expanding power of the office. Nida, Robert, and Rebecca L. Spiro, “The President as His Own Judge and Jury: A Legal Analysis of the Sunstein, Cass R., ed., Can It Happen Here?, William Presidential Self-Pardon Power,” Oklahoma Law Review, Morrow, 2018. 1999, https://tinyurl.com/ycbkesx6. In essays edited by a Harvard law professor, 15 experts A California lawyer (Nida) and a Catholic University law in law and politics address whether American democracy student (Spiro) argue in this widely cited article that the is moving toward an authoritarian state — in the spirit of Constitution allows a president to pardon himself, and they Sinclair Lewis’ 1935 dystopian satirical novel It Can’t Hap- propose a constitutional amendment to prohibit that. pen Here. Reports and Studies Suri, Jeremi, The Impossible Presidency: The Rise and Fall of America’s Highest Office, Basic Books, 2017. Elsea, Jennifer K., and Matthew C. Weed, “Declarations A history professor at the University of Texas, Austin, of War and Authorizations for the Use of Military argues that the duties of the presidency have become so Force: Historical Background and Legal Implications,” great that a single executive is anachronistic. Congressional Research Service, April 18, 2014, https:// tinyurl.com/y7gumuvj. Articles A comprehensive report from Congress’ research arm de- scribes U.S. declarations of war and authorizations for military Dickerson, John, “The Hardest Job in the World,” The force from 1789 to 2002, along with their legal justifications. Atlantic, May 2018, https://tinyurl.com/y8t45u4j. A co-anchor of “CBS This Morning” argues that the expecta- Raso, Connor, “Trump’s deregulatory efforts keep los- tions and duties of the presidency have grown so much that ing in court — and the losses could make it harder the office is “broken;” he reviews several proposals to fix it. for future administrations to deregulate,” Brookings Institution, Oct. 25, 2018, https://tinyurl.com/ycz56alj. Goldgeier, James M., and Elizabeth N. Saunders, “The A centrist Washington think tank finds that of 19 deregulatory Unconstrained Presidency: Checks and Balances Eroded initiatives challenged in court, mostly in environmental pro- Long Before Trump,” Foreign Affairs, Aug. 14, 2018, tection, the Trump administration has prevailed in only one https://tinyurl.com/y9lmrg8k. case, while losing or abandoning its position in 18 others.

990 CQ Researcher The Next Step: Additional Articles from Current Periodicals

Checks and Balances Constitution and how it has been interpreted over centuries, says an MSNBC analyst. Brettschneider, Corey, “Brett Kavanaugh’s Radical View of Executive Power,” Politico Magazine, Sept. 4, 2018, Horsley, Scott, “Trump Administration Seeks to Limit https://tinyurl.com/y9xevey6. Asylum-Seekers With New Rule,” NPR, Nov. 8, 2018, Brett Kavanaugh’s historic deference to presidential authority https://tinyurl.com/y8n36aw9. could potentially award Trump an advantage over the usual Trump has issued an executive order requiring migrants checks and balances that the Supreme Court provides, says seeking asylum in the United States to pass through certain a Brown University political science professor. official points of entry.

Goldberg, Jonah, “Commentary: The importance of Military Action true checks and balances in government,” The Chicago Tribune, May 11, 2018, https://tinyurl.com/y8wo5y4h. Lee, Barbara, “No More Blank Checks for War,” The The nation has become too invested in the power of the Nation, June 20, 2018, https://tinyurl.com/ycgukzc7. Supreme Court on deciding divisive legislation, says the Passed three days after the Sept. 11, 2001, terrorist attacks, editor-at-large for the conservative National Review. the Authorization for Use of Military Force grants presidents the ability to wage war with impunity, says a Democratic Pramuk, Jacob, “Democrats pick up at least 28 seats to win House member from California. back the House — giving the party a check on Trump,” CNBC, Nov. 6, 2018, https://tinyurl.com/y767ada6. McKeon, Brian, and Caroline Tess, “How Congress Can By gaining control of the House in November’s midterm Take Back Foreign Policy,” Foreign Affairs, Nov. 7, 2018, elections, Democrats will be able not only to investigate https://tinyurl.com/y9m76av6. President Trump’s finances but also to block Republican Congress could stem Trump’s power in foreign policy and economic legislation, analysts say. military affairs next year by reinstating frequent hearings and investigations, say a senior director and a senior fellow with Emoluments the Penn Biden Center for Diplomacy and Global Engagement.

Harris, Andrew, et al., “What You Need to Know About Ward, Alex, “This historian spent 10 years researching the Emoluments Clause,” Bloomberg, The Washington wartime presidents. Trump scares him the most,” Vox, Post, Nov. 7, 2018, https://tinyurl.com/y94hw5db. Nov. 5, 2018, https://tinyurl.com/yagtx8sw. The constitutional clauses aimed at preventing U.S. leaders Trump has not shown a willingness to learn from history, from accepting gifts from other governments are the basis setting him apart from most other wartime presidents, con- of several lawsuits against President Trump. tends presidential historian Michael Beschloss.

Tatum, Sophie, “Federal judge allows discovery to move forward in Trump emoluments case,” CNN, Nov. 2, 2018, CITING CQ RESEARCHER https://tinyurl.com/y7y3bbce. Sample formats for citing these reports in a bibliography Documents reflecting transactions between foreign dignitaries and the Trump International Hotel may soon be made public. include the ones listed below. Preferred styles and formats vary, so please check with your instructor or professor. Trickey, Erick, “Move over, Trump. This president’s two lions set off the greatest emoluments debate,” The Wash- MLA STYLE ington Post, Sept. 28, 2018, https://tinyurl.com/ybkppvgr. Mantel, Barbara. “Coal Industry’s Future.” CQ Researcher 17 In 1839, President Martin Van Buren wrestled with one of June 2016: 529-552. the most notorious emolument dilemmas when the sultan of Morocco gave the United States a lion and a lioness. APA STYLE Executive Orders Mantel, B. (2016, June 17). Coal Industry’s Future. CQ Re- searcher, 6, 529-552. Cevallos, Danny, “No, Mr. President, an executive order HICAGO TYLE can’t change the Constitution. Here’s why,” NBC News, C S Nov. 1, 2018, https://tinyurl.com/yan6z84m. Mantel, Barbara. “Coal Industry’s Future.” CQ Researcher, Attempting to overturn the birthright citizenship clause June 17, 2016, 529-52. with an executive order would challenge the integrity of the

www.cqresearcher.com Nov. 16, 2018 991 In-depth Reports on Issues in the News

Are you writing a paper? Need backup for a debate? Want to become an expert on an issue? For 90 years, students have turned to ?CQ Researcher for in-depth reporting on issues in the news. Reports on a full range of political and social issues are now available. Following is a selection of recent reports:

Civil Liberties Education Health/Safety Privacy and the Internet, 12/15 Issues in Higher Education, 10/18 Gun Violence, 7/18 Intelligence Reform, 5/15 Education Funding, 8/18 Worker Safety, 5/18 Religion and Law, 11/14 Charter Schools, 3/17 Disaster Readiness, 1/18 Civic Education, 2/17 Medical Breakthroughs, 9/17 Crime/Law Student Debt, 11/16 For-Profit Prisons, 10/18 Politics/Economy Gang Violence, 6/18 Environment/Society Election Security & Voting Rights, 10/18 High-Tech Policing, 4/17 Global Tourism Controversies, 11/18 India Today, 10/18 Forensic Science Controversies, 2/17 Organic Farming Boom, 11/18 Labor Shortage Debate, 9/18 Jailing Debtors, 9/16 Christianity in America, 9/18 Turmoil in Central America, 9/18 Decriminalizing Prostitution, 4/16 Loneliness and Social Isolation, 8/18 The STEM Gender Gap, 9/18 Restorative Justice, 2/16 Foster Care, 7/18 Conspiracy Theories, 8/18 Upcoming Reports Obesity Crisis, 11/30/18 Plastic Pollution, 12/7/18 Local News, 12/14/18

ACCESS CQ Researcher is available in print and online. For access, visit your library or www.cqresearcher.com.

STAY CURRENT For notice of upcoming CQ Researcher reports or to learn more about CQ Researcher products, subscribe to the free email newsletters, CQ Researcher Alert! and CQ Researcher News: http://cqpress.com/newsletters.

PURCHASE To purchase a CQ Researcher report in print or electronic format (PDF), visit www.cqpress.com or call 866-427-7737. Single reports start at $15. Bulk purchase discounts and electronic-rights licensing are also available.

SUBSCRIBE Annual full-service CQ Researcher subscriptions — including 44 reports a year, monthly index updates, and a bound volume — start at $1,131. Add $25 for domestic postage.

CQ Researcher Online offers a backfile from 1991 and a number of tools to simplify research. For pricing information, call 800-818-7243 or 805-499-9774 or email [email protected].