It is inarguable that Trump is crashing through guardrails to amass an unprecedented amount of power for the executive branch. But when and why were these guardrails created?
- The largest group come from the Watergate era and represent a reaction to Nixon’s perceived abuses of power, although other presidents before him behaved in the same manner. These guardrails include requirements for financial disclosure forms, prohibitions on impoundment, and the independence of the DOJ.
- Trump is trying to destroy the independence of a variety of agencies that were set up by statute during the Progressive Era and the New Deal. The Supreme Court mostly upheld their independence against allegations of a violation of the doctrine of separation of powers in the 1930s.
- The civil service protections that Trump is ignoring date back to the late 19th century. They were designed to make government more professional and predictable.
- Trump’s desire to use the military to round up and deport immigrants will at some point violate a statute that was passed in the late 19th century.
- Trump’s use of emergency powers echoes actions by Lincoln during the Civil War, although the most important Supreme Court precedent on the subject comes from the Truman presidency.
- His executive order on birthright citizenship ignores the language in the 14th Amendment, which also dates back to the end of the Civil War.
- The abuse of the pardon power has its roots in the Constitution itself, which incorporated authority included in the English monarch’s prerogative.