When Barack Obama was president, Republicans routinely warned that he was assuming dictatorial powers, stretching the authority of the executive branch beyond what the framers intended and running roughshod over the checks and balances that make our system so extraordinary.
They began making these claims from his first days in office, beginning with a bizarre obsession over “czars,” and it continued until he left office, with arguments about his alleged overreach on immigration, guns, education and a whole range of other issues. Republicans were united in their belief that what the United States desperately needed was a chief executive who would know his place.
Yet today, with a Republican in the Oval Office, you will be shocked to learn that the specter of presidential tyranny no longer haunts the dreams of Republicans. In fact, they’re embracing the very techniques and methods of wielding power that they decried when Obama was using them.
But here’s the real irony: In some ways, Republicans themselves laid the groundwork to restrain President Trump’s power.
Let’s begin with the question of executive orders, which Republicans used to characterize as an obscene abuse of power. As Steve Benen reminds us, on the campaign trail Trump would routinely decry Obama’s executive orders, including in this colorful quote from last March:
“I want to not use too many executive orders, folks. Executive orders sort of came about more recently. Nobody ever heard of an executive order. Then all of a sudden Obama, because he couldn’t get anybody to agree with him, he starts signing them like they’re butter. So I want to do away with executive orders for the most part.”
Yet today, Trump isn’t just signing executive orders — his White House is bragging about how many he has signed as evidence of what a can-do, action-packed presidency this is, even putting out a list of how many orders he has signed compared with his predecessors. But if you look at them one by one, you’ll see that most are either trivial (reappointing members of government boards and the like) or orders for agencies to look into some issue or another, in effect getting ready to do something, but not actually doing anything yet. And some of the most substantive ones have been blocked by the courts.
Which brings us to the ruling that came down yesterday from a federal court in California, putting a nationwide hold on Trump’s executive order targeting “sanctuary cities” for retaliation. The executive order made it possible for the attorney general to cut off all federal funds to any jurisdiction that does not actively cooperate with federal agencies on immigration matters, just as Trump promised when he was a candidate.
Trump immediately attacked the ruling as the product of an out-of-control judiciary that has no right to put reins on his authority, just as he did when multiple courts struck down his attempt to ban people from majority-Muslim countries from entering the United States:
First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities-both ridiculous rulings. See you in the Supreme Court!
— Donald J. Trump (@realDonaldTrump) April 26, 2017
This ruling was made by a district court judge, not the 9th Circuit appeals court, but who can expect the president of the United States to have a handle on those kinds of details? He might have gotten the erroneous impression from his chief of staff Reince Priebus, who said of the ruling, “It’s the 9th Circuit going bananas.” At least this time Trump didn’t call the judge who ruled against him a “so-called judge,” but the White House did put out a screed in response to the decision that read as though it was written by Sean Hannity, referring twice to an “unelected” judge as though that undermined and not enhanced the court’s legitimacy in deciding this matter.
What may be most interesting about the ruling, however, is that it relies on exactly the principles of restraint on federal power that Republicans used to promote. Let me point to this passage in the decision:
The Supreme Court has repeatedly held that, “The Federal Government cannot compel the States to enact or administer a federal regulatory program.” New York, 505 U.S. at 188. The Government cannot command them to adopt certain policies, id. at 188, command them to carry out federal programs, Printz, 521 U.S. at 935, or otherwise to “coerce them into adopting a federal regulatory system as their own,” NFIB, 132 S. Ct. at 2602. The Executive Order uses coercive means in an attempt to force states and local jurisdictions to honor civil detainer requests, which are voluntary “requests” precisely because the federal government cannot command states to comply with them under the Tenth Amendment.
In Printz v. United States, conservatives on the Supreme Court, led by Antonin Scalia, struck down a provision of the Brady Law regarding background checks for gun purchases on the grounds that the federal government couldn’t conscript state and local officials into carrying out the federal government’s wishes. NFIB v. Sebelius was the case brought by conservatives in their attempt to use the courts to destroy the Affordable Care Act; though most of the law was upheld, the court ruled that the government could not compel states to accept the expansion of Medicaid or lose other Medicaid funding. Because of that ruling, conservative states were allowed to reject the expansion, leaving millions of their own citizens without health insurance in what they celebrated as a giant middle finger to Obama. And then there’s the reference to the conservatives’ beloved 10th Amendment, which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
To sum up, Trump can’t cut off funding to sanctuary cities as he wants to do because of exactly the Supreme Court rulings and constitutional principles that until now conservatives held dear to their hearts.
The truth is that neither Democrats nor Republicans have a principled commitment to federalism. They both have their moments where they want states and local governments to have as much power as possible and the federal government to have as little as possible. Meanwhile, both sides like federal power — or the power of the presidency — when it’s wielded in the service of policies they favor. But it looks as though conservatives constructed some legal walls that Trump won’t be able to get around.