Trump and the Return to Constitutional Government

President Donald Trump is doing something that has not been seen in the last eight years. He is devolving -- returning -- power from the Executive Branch (the Office of the President), primarily to the Legislative Branch (the Congress). We are seeing this in three recent developments.

First, he announced an Executive Order cancelling the program created by former President Obama commonly known as DACA (Deferred Action for Childhood Arrivals). The DACA program was fashioned by way of an Executive Order signed by President Obama in June 2012. Under the DACA program, Mr. Obama ordered the Department of Homeland Security (DHS) to allow aliens illegally residing in the United States to get work authorizations, Social Security numbers, and driver’s licenses -- none of which are legally permitted under statutory law. Mr. Obama originally wanted Congress to enact such a law -- commonly known as the DREAM Act (Development, Relief, and Education for Alien Minors) but was unable to persuade Congress to act. So Mr. Obama decided to take matters into his own hands. Hence, rather than work with Congress to change the law, he simply ordered DHS to suspend enforcement of those parts of the law he did not like. Trump did not end DACA immediately. His Executive Order will not take effect for six months -- creating a window for Congress to address this, as is their role, via legislation. So by cancelling Obama’s executive order and ending the DACA program, Trump is sending this issue back where it belongs -- to the Congress -- to be addressed with legislation.

Next Trump announced that he will decertify the Iran Nuclear Deal created by President Obama. Notice the word “Deal.” This is not a treaty. Trivial distinction, you say? Au contraire, this is a very important distinction. A treaty is binding on any country that enters into it. A treaty has the effect of law -- which is why the power to ratify a treaty is held, solely, by the U.S. Senate -- something President Obama was unable to persuade the Senate to do. This is also why Obama had to call it a "historic understanding." As such, this deal required the certification of the President on a regular basis (every 90 days). While Mr. Obama was president, he certified the deal every time. And, 90 days ago, Trump reluctantly certified the deal again. But at the next 90-day mark – Oct. 13, after due consideration, President Trump refused to certify, effectively giving Congress a 60-day window to reimpose Iran sanctions suspended by the deal, or kill the Iran deal if they so choose. Again, Mr. Trump is sending this issue back where it belongs -- to the Congress -- to be addressed.

Finally, Trump has ended ObamaCare subsidies being paid to Insurance companies. The subsidies were known as CSR (Cost Sharing Reduction), and are paid directly to insurers to cover losses they incur by participating in the Affordable Care Act, commonly known as ObamaCare. Under the terms of ObamaCare, some subsidies (paid to patients) were authorized by Congress, but others (CSR payments to insurance companies) were not. Mr. Obama believed Congress would, in the future, consider amending ObamaCare to include CSR payment authorization. But Congress, seeing the cost of such payments growing out of control, refused (which is probably why Congress did not agree to authorize CSR payments in the first place). Once again, Obama, unable to persuade Congress to act according to his wishes, simply ordered the Treasury to make the payments. Congress took Obama to court, claiming the President had no authority to order these payments, and a federal judge sided with Congress -- but allowed the President to continue to order the Treasury to make the payments until he and the Congress could reach an agreement, with no deadline for that agreement given. And CSR payments continued -- until President Trump chose to end them and insisted that Congress decide this issue.

It should be noted that the Constitution allows only one branch -- the Legislature (Congress) -- to create legislation (laws). The Executive branch is charged with enforcing the law, the Judicial branch is charged with reviewing and validating the Constitutionality of the law, but the Congress is the only branch that can create the law. In all three of these cases, Trump is insisting that Congress perform its function -- make laws. In doing so, Trump is determined to devolve the authority for making laws to its rightful holder, Congress.

Until recently, this was the approach usually taken by a President. FDR guided the New Deal through Congress via a series of Congressional Acts (the Securities Act of 1933 that created the SEC, and the Social Security Act of 1935 were two that are still in place to this day). Lyndon Johnson got the Civil Rights act of 1965 through Congress (it should be noted that Johnson did this with little support in his own Democrat Party -- most of his support came from the opposition Republican Party). Richard Nixon got the Clean Air Act of 1970 (creating the EPA) and the Consumer Product Safety Act of 1972 through Congress (both houses controlled by the Democrats). And Ronald Reagan got the Graham Rudman Hollings Act (tax reform that unleashed a wave of prosperity) through a Congress in which the House of Representatives was controlled by Democrats. Bill Clinton (Welfare Reform in 1996, through a Congress controlled by Republicans) and George W. Bush (Tax Relief in 2001) were similarly successful in shepherding legislation through Congress. A number of these legislative achievements stand to this day. Others have been modified by subsequent legislation. But all of them were created by a body of legislators -- not by one man, the president. And because of that, they cannot be undone by one man -- even a president. Perhaps Obama is now finding out the true, temporary, nature of the Executive Order and the permanence that marks the results of the legislative process.

So in this way President Trump, agree with him or not, is devolving power from the Executive branch to the Legislative branch in a way not often seen in his predecessor. And the irony is clear: This Constitutional devolution is taking place at the hands of the former private sector CEO, and reversing the previous actions of the “Constitutional law expert.” 

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