Trump keeps trying to rule by executive order, including, most recently, defunding public broadcasting. Someone I know was trying to differentiate what Trump is doing by executive order and what other presidents have done. So let me explain.
Presidents have no power, zero, to rule by executive order. They have the power to execute the laws. Execute means to carry out. That’s all. In using the word “execute,” the people who wrote and ratified the Constitution were giving the president very limited power – the power to carry out what Congress wrote into the law and a few very specific and narrow powers mentioned in the Constitution.
The King of England had broader powers. We revolted to stop that. And Article I, the first Article in the Constitution, which spells out the powers of Congress, specifically identifies the powers that King George had and handed those powers to Congress.
Republicans are trying to turn the opening words of Article II, “The executive Power,” into a broad grant of power to the president. But the executive power is the power to execute, not to create, not to make up new laws or change old ones. Republicans created the “unitary executive theory” according to which the president of the United States has sole authority over the executive branch and turned that into the claim that Congress can’t lay down rules for their behavior, and that the president can make others in the executive branch do whatever he orders, whether authorized by law or not. Republicans spent a decade denying it but they handed it to Mr. Trump anyway.
Revoking authorizations is not an independent presidential power, and it doesn’t count as carrying out congressional authorizations. It is nothing more than a bald-faced power grab.
There are all sorts of reasons to object to and resist what Mr. Trump is trying to do to public broadcasting but the first and fundamental problem is that he does not have the legal power to do it, does not have the power under the American Constitution, to do it.
He does not have the power to revoke statutory authorization to fix infrastructure around the country in communities that are trying to rebuild after natural disasters and rebuild in ways that will prevent future ones. It is hard to figure out why a president supposedly dedicated to the general welfare would try to do that anyway. But in the case of public broadcasting, he is trying to destroy an independent broadcasting system and turn its facilities over to a broadcasting service that would be dedicated to supporting whatever he says and whatever he wants to do. That by itself is a violation of free speech in America.
The public broadcasting system was designed to give control to local broadcasters who then choose and pay for what programming to air. It was very specifically and intentionally designed to be bottom up, not top down, not to become a mouthpiece for the president. So he is exceeding his power and violating the First Amendment at the same time. The Constitution was never designed to give the president that kind of power.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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