09/12/2024
Presidential power
Author Headshot
By Charlie Savage
I cover legal policy and the Justice Department.
Nearly every president has pushed the limits of the office’s power by taking actions that some legal scholars consider an overreach — in directing a military strike, issuing an executive order or filling a job without Congress’s approval. Checks and balances can frustrate a leader who wants to get stuff done. And in an era of polarized politics that can paralyze Congress, presidents often believe that their success hinges on unilateral action.
These pressures apply to both Republicans and Democrats. But that does not mean Donald Trump and Kamala Harris are equivalent. Harris hasn’t said anything to suggest she would expand presidential power as an end in itself.
Trump, by contrast, wants to concentrate more power in the White House and advertises his authoritarian impulses. (Read about his plans.) At Tuesday’s debate, he praised Hungary’s prime minister, Viktor Orban, who has eroded democracy in his country, describing him as “one of the most respected men — they call him a strong man. He’s a tough person. Smart.”
The Morning is running a series in which journalists explain how the government might work under Harris or under Trump. In this installment, I’ll discuss each candidate’s approach to the separation of powers and the rule of law. I’ve been writing about executive power for two decades, and this cycle I’ve been tracking such issues closely again.
Trump’s radical vision
Trump busted many norms while in office, like when he invoked emergency power to spend more taxpayer funds than Congress approved for a border wall. If he wins again, as my colleagues and I have reported in a series about the policy stakes of his campaign, he has vowed to go farther.
Trump says he’d make it easier to fire tens of thousands of civil servants and replace them with loyalists. (He issued an executive order laying the groundwork late in his term, but President Biden rescinded it; Trump has said he would reissue it.) He also says he’d bring independent agencies under White House authority and revive the tactic, outlawed in the 1970s, of refusing to spend money Congress has appropriated for programs he dislikes.
Building on how Trump pressured prosecutors to scrutinize his foes during his first term, the former president and his allies signal that they’d end a post-Watergate notion: that the Justice Department has investigative independence from the White House. He has threatened to order the prosecution of perceived adversaries, including Biden, election workers, a tech giant, political operatives and lawyers and donors supporting Harris.
Trump also wants to use American troops on domestic soil to enforce the law. And he is planning a crackdown on illegal immigration with millions of deportations a year — far higher than the several hundred thousand per year that recent administrations, including his own, managed. To do it, his chief immigration adviser has said, the government would carry out sweeping raids and construct giant detention camps near the border in Texas.
Trump is full of bluster. But there are reasons to believe that a second Trump term would carry out more of his ideas than the first. While he was sometimes constrained last time by judges or his own political appointees, he pushed courts rightward by the end of his term. And his advisers plan to hire only true believers in a second term.
Ordinary boundary-pushing
Unlike Trump, Harris is signaling that she would be a normal president. That would mean usually adhering to a consensus understanding of executive power. But I wouldn’t be surprised if she occasionally pushed the boundaries of presidential authority — albeit within ordinary parameters.
Presidents of both parties have stretched executive powers when they haven’t been able to get new bills through Congress — think of Barack Obama’s attempts to shield certain undocumented immigrants from deportation or Biden’s attempts to forgive student debt. They have also claimed sweeping and disputed power to use military force without congressional authorization — like when Obama ordered airstrikes on Libya and when Trump directed the military to attack Syrian forces.
Notably, when Harris sought the Democratic nomination in 2019, she wrote for an executive power survey I conduct every four years that “the president’s top priority is to keep America secure, and I won’t hesitate to do what it takes to protect our country.” Still, she also said presidents must obey surveillance and anti-torture laws that George W. Bush claimed the power to override — as well as a detainee transfer statute that Obama claimed he could bypass.
If Republicans in Congress blocked Harris’s nominees and legislative agenda, it is likely she would take more aggressive unilateral actions. Those typically lead to accusations of overreach and legal challenges. The growth of executive power has been a story of bipartisan aggrandizement: Presidents take a disputed action, pushing the limits of their legitimate authority; their successors build on that precedent. But based on what Trump has said he is planning to do, I would expect Harris to accelerate that trend much less than Trump.
More on the debate
Trump called the debate rigged and falsely suggested that ABC gave Harris questions in advance. He said he was “less inclined” to debate Harris again.
Several Trump advisers privately admitted that he had performed poorly against Harris. Robert F. Kennedy Jr. said on Fox News that Harris “clearly won.”
Over 67 million Americans watched Harris and Trump debate, roughly a third more than watched Trump and Biden in June.
Shares of Trump’s social media company fell after the debate, and ended the day at their lowest level since the company went public.
Taylor Swift’s endorsement of Harris after the debate could draw in more young voters.
More on the election
(From right): JD Vance, Donald Trump, Michael Bloomberg, President Biden, Vice President Harris, Chuck Schumer,Kirsten Gillibrandd and Gov. Kathy Hochul stand and watch proceedings at a memorial service.
In Lower Manhattan. Dave Sanders for The New York Times
Biden, Harris, Trump and JD Vance commemorated the Sept. 11 attacks at the World Trade Center memorial. Harris and Trump, standing a few feet apart, shook hands.
After Biden spoke about bipartisanship in Pennsylvania, a Trump supporter asked him to put on a Trump baseball cap. He did. See the photo.
The candidates are staking their campaigns on different views of the country, Peter Baker writes. Trump is betting that Americans are angry; Harris is betting that they’re exhausted.
The father of an 11-year-old boy who died after an immigrant crashed into his school bus asked Trump and Vance to stop using his son as a political weapon.
The Capitol will get extra security when Congress meets to certify the presidential election winner, to prevent another Jan. 6 attack.
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