The Desperate Need to Check Presidential Power Better in America

Published by PolisPandit on December 12, 2023December 12, 2023

“I want to be dictator for a day.” Those are the recent words of Donald Trump, the likely Republican nominee for President in 2024. Shortly after his loss in 2020, I wrote this article about how we should check presidential power post-Trump.

That was before January 6th, 2021.

Regardless of your thoughts about that day, one thing is clear: the transfer of power in America is far too ceremonial. If the Donald Trump presidency did anything, it exposed how American democracy is too reliant on norms and customs, not laws and rules.

It’s just that every American president before Donald Trump had graciously adhered to decorum. They respected the Office of the Presidency, following George Washington’s footsteps in thinking it was above any one man.

That was until Donald Trump came along.

This article, however, is not about Donald Trump. It’s about how we can best check the presidential power of anyone who tries to abuse it; a risk House Republicans failed to appreciate when they almost unanimously opposed the Protecting Our Democracy Act. The only Republican who voted for it was the now-retired Adam Kinzinger.

Watered-down components of that Act did pass the Senate and became law, but they didn’t go nearly far enough in terms of curbing presidential power with actual laws, not norms.

Republicans at the time framed it as retribution against Donald Trump. While it was certainly in response to his norm-busting presidency, it is not partisan to enhance legal (instead of customary) safeguards to prevent the most powerful person in the world – from any political party – from abusing their presidential power.

How have we failed to learn that norms are not enough, regardless of party affiliation?

What the “Protecting Our Democracy Act” would have done

This Act was dead on arrival once it reached the Senate in 2021, but many parts would likely generate support from a majority of Americans. Here are the highlights:

• Require presidential candidates to disclose their tax returns (a no-brainer for transparency)
• Extend the Constitution’s ban on emoluments (or payments) to commercial transactions (so if you own a business you’d be required to at least divest so nobody could curry favor with you by spending exorbitant sums of money at your hotels, just as an example)
• Report offers of foreign assistance to the FBI (if the Russians, for example, offered to help your campaign)
• Stop abuse of pardon powers (presidential pardon power is not unlimited and shouldn’t be used for corrupt ends)
• Pause the statute of limitations for any federal crimes engaged in by the president or vice president given the Department of Justice (DOJ) policy not to charge a sitting president (more on this below, but the current statute of limitations for most federal crimes is 5 years, which is almost the entirety of a term, allowing for a president to effectively operate with impunity)
• Protecting whistleblowers and inspectors general (making it harder to fire the latter without good reason, as they’re supposed to check power post-Watergate, not be influenced by it)

In addition, one of the most important components of this failed act was promoting efficient presidential transitions. January 6th revealed how overly ceremonial the transition of power is in America. When one party refutes the results of the election, we need clearer rules of the road on how the government must proceed.

It’s important to note that these checks on presidential power are equally applicable to Democrats, Republicans, or any other person elected as president. Any legal safeguards are meant to safeguard democracy, not political parties. The unfortunate reality, however, is that many operate in the business of protecting party over country.

Purely for power.

We need additional checks on presidential power

There are many other safeguards required to check presidential power. This list is not exhaustive but covers some of the high risk areas that have been exposed by both political parties over the past few decades.

• We cannot assume the U.S. Attorney General is independent of the President who nominates them. In many states this is an elected, not appointed position like it is on the federal level. This person is the top law enforcement officer in the country, and if they’re appointed by someone who they also report to in the executive branch (the president), it’s highly unlikely they will check that person’s behavior thoroughly. In addition, the DOJ could be transformed into its own branch of government, separate from the Executive Branch, while being checked and balanced by all other branches of government, giving it necessary independence.
• Sitting presidents should be subject to potential indictment. I still don’t agree with the DOJ policy never to indict sitting presidents. It puts sitting presidents above the law. We cannot honestly say we strive for the rule of law when one person always sits above it while they’re in office.
• Define “National Security.” Too often presidents justify emergency actions in the interests of “national security.” Whether it’s moving the military to the border to control migrants or even using the military domestically against American citizens, presidents should not have carte blanche when it comes to national security. There’s currently no working or statutory definition. That needs to change and the presidential power to use it should be limited.
• Prohibit Executive Orders. Ruling by decree is antithetical to democracy. Executive orders are fake orders anyway and are often wiped out by the next president from the opposing party. Find some better negotiating skills and pass legislation that means something.

If we don’t add more checks soon, the next tyrant will make us all regret it

All it takes is one person empowered by a cult of personality to wreak havoc on American democracy. Under the current framework, a bad actor can act with almost unchecked impunity.

Whether it’s destroying checks within the Executive Branch itself (i.e., removing civil service protections to make it easier to fire people you ideologically disagree with) or removing the independence of agencies designed to check presidential power, presidents enjoy incredible discretion in how to exercise their power.

This is not only about Donald Trump. He may be the near and present danger, but a Democratic president is not entirely immune from power-hungry aspirations themselves.

For example, if Hunter Biden is convicted of the charges against him, will his father pardon him? Should he? Or is that an excessive and unreasonable use of a president’s pardon power?

We all must take an honest and critical look at American democracy. While the biggest issues may have been illuminated by one man, they’re by no means limited to him. There will be other aspiring tyrants in the future too if we fail to meet this moment.

Future tyrants could be even worse; aspiring for much more than dictator for a day. At that point, there won’t be an American democracy left to assess critically.