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By Randall Holcombe * Thursday August 10, 2017 10:25 AM PDT *

President Donald Trump's administration has passed the 200 day mark, a milestone that might make it reasonable to look at what he's accomplished after making big promises in his campaign. No Obamacare repeal. No tax reform. No NAFTA repeal. No wall. No immigration reform (although he did issue some executive orders that were partially undone by the courts).

Unless one counts the excitement of reading President Trump's often-amusing tweets, the first 200 days of his administration hasn't brought with it many changes.

In fairness to the president, many of the policy changes he campaigned on are not within the power of the president to change. The lack of progress in Trump's agenda is (partly? mainly?) a result of the checks and balances that are a built into the constitutional design of our government. Regardless of one's views on Trump's campaign promises, the constitutionally limited powers of the president must be viewed as a desirable feature of our government-one worth preserving, even though it has been eroded over the centuries.

As a corporate CEO, Trump faced fewer checks and balances. Whatever he said, those below him acted on. In business, the "check and balance" is the bottom line. Businesses that produce more value than they take out of the economy enjoy profits; those that don't suffer losses. What the boss says, goes.

Government isn't like that in the United States, at least not yet. We are not like Putin's Russia, or Maduro's Venezuela.

I'm not sure Trump had a good understanding of the limited power of the presidency when he took office, or the need to cooperate with legislators to push his agenda. But that's a bit of a tangent from the point I want to get across here.

The checks and balances we have in government are valuable because they keep us from becoming like Putin's Russia, or Maduro's Venezuela, and they have been weakened since the Constitution was written.

President Obama didn't get everything he wanted, to the disappointment of some; President Trump isn't getting everything he wants, to the disappointment of others. But everyone should realize that eventually, someone they don't like will get elected president, so everyone should support maintaining and strengthening the checks and balances designed into the Constitution.

We don't want it to be easy for politicians to redesign public policy. I liked some of Trump's campaign promises and didn't like others, but I'm not unhappy that he's facing (constitutionally designed) difficulties turning his promises into realities.

Tags: Constitution, Elections, Presidential Power, The State

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Checks and Balances: Assessing Trump's First 200 Days - Randall Holcombe

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President Donald Trump's administration has passed the 200 day mark, a milestone that might make it reasonable to look at what he's accomplished after making big promises in his campaign. No Obamacare repeal. No tax reform. No NAFTA repeal. N

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The U.S. Senate should switch to 51 votes, immediately, and get Healthcare and TAX CUTS approved, fast and easy. Dems would do it, no doubt!

- Donald J. Trump (@realDonaldTrump) May 30, 2017

Update May 2: Trump is indeed going ahead with a push to get rid of the filibuster, tweeting that the GOP should consider it if it can't get 60 votes to overcome the filibuster. He apparently even threatened to allow a government shutdown to prove his point.

The reason for the plan negotiated between the Republicans and Democrats is that we need 60 votes in the Senate which are not there! We....

- Donald J. Trump (@realDonaldTrump) May 2, 2017

either elect more Republican Senators in 2018 or change the rules now to 51%. Our country needs a good "shutdown" in September to fix mess!

- Donald J. Trump (@realDonaldTrump) May 2, 2017

The below post is from last month, after he first hinted at this in a Fox News interview.
President Trump has suggested that the judiciary doesn't have the authority to question him. He was a very early proponent of nuking the filibuster for Supreme Court Justice Neil M. Gorsuch. And he recently raised eyebrows by congratulating Turkish President Recep Tayyip Erdogan on the expansion of his presidential powers - echoing his previous admiration for strongman leaders.

Now Trump is talking about consolidating his own power.

In an interview with Fox News that aired Friday night, Trump dismissed the "archaic" rules of the House and Senate - using that word four times - and suggested they needed to be streamlined for the good of the country.

A sampling:

"We don't have a lot of closers in politics, and I understand why: It's a very rough system. It's an archaic system."

"You look at the rules of the Senate, even the rules of the House - but the rules of the Senate and some of the things you have to go through - it's really a bad thing for the country, in my opinion. They're archaic rules. And maybe at some point we're going to have to take those rules on, because, for the good of the nation, things are going to have to be different."

"You can't go through a process like this. It's not fair. It forces you to make bad decisions. I mean, you're really forced into doing things that you would normally not do except for these archaic rules."

And then Trump came out and just said it: He doesn't like the filibuster.

"I think, you know, the filibuster concept is not a good concept to start off with," he said.

So there you go. Trump is frustrated with the pace of legislation after 100 days, and his answer is that he wants to change the rules.

Whether this is just him blowing off steam or signaling what lies ahead, it's significant. Because it suggests a president, yet again, who doesn't agree with his own powers being limited or even questioned. Remember when senior policy adviser Stephen Miller declared "the powers of the president to protect our country are very substantial and will not be questioned?" This is more of that kind of attitude.

He wants more power - and he wants it quickly. It's not difficult to connect this to his past admiration for authoritarian leaders, and these comments are likely to give Democrats (and even some in the GOP establishment) plenty of heartburn. This is a demonstrated pattern for him, for all the reasons listed at the top of this post.

We're a far cry from the presidential candidate who decried President Obama's executive orders, suggesting they were an indication of a weak leader who couldn't bend Congress to his will. Trump is now admitting that he can't bend Congress to his will, but he blames the system rather than himself. Who knew governing was so tough, right?

And it's difficult to overstate how significant it would be if he actually went after the filibuster. The 60-vote threshold for passing legislation in the Senate - which still exists for everything except presidential nominations - is the last vestige of Democratic power in Washington and really the only thing standing in the way of the majority party doing whatever it wants. Getting rid of it completely would change the face of American politics for good and clear a major hurdle for Trump in passing his agenda.

He'd still have to get Republicans to unite behind his priorities, which hasn't proven easy. His health-care push, for example, isn't stalled because of the 60-vote threshold in the Senate. It's actually not even subject to it; his problem is getting House Republicans to agree.

Whether he targets the filibuster specifically or not, his attitude toward his own power is clear: The more, the better. He's already gotten a taste for rolling back the filibuster, and after just 100 days of frustration, he already wants more.

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Analysis | Trump wants more power and fewer checks and balances - again

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The U.S. Senate should switch to 51 votes, immediately, and get Healthcare and TAX CUTS approved, fast and easy. Dems would do it, no doubt! - Donald J. Trump (@realDonaldTrump) May 30, 2017 Update May 2: Trump is indeed going ahead with a push to get rid of the filibuster, tweeting that the GOP should consider it if it can't get 60 votes to overcome the filibuster.

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Checks, Balances, and the National Security Agency

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This column was originally published on MSNBC.com.Over the course of three days, the usually invisible National Security Agency has become ostentatiously visible and many Americans do not like what they see.

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Barack Obama addressed what he described as the public "ruckus" over the leaked National Security Agency surveillance documents on Monday, indicating that the US authorities would pursue extradition from Hong Kong of the whistleblower Edward Snowden.

In his first public comments in 10 days about the NSA disclosures, Obama also said he had set an oversight board made up of independent citizens and the ordered the declassification of documents relating to surveillance to allow the public to see the broader context.

The president, who is attending the G8 summit in Northern Ireland, was speaking on PBS's Charlie Rose programme. Asked about Snowden, who remains free in Hong Kong and who took part in an online Guardian Q&A on Monday, the president said: "The case has been referred to the DOJ for criminal investigation ... and possible extradition. I will leave it up to them to answer those questions."

Any request for extradition - technically a "surrender" in Hong Kong - would normally be the decision of the territory's government. Snowden would be able to challenge it through the Hong Kong legal system, although lawyers think he would probably be unsuccessful in the end. In theory, Beijing could step in to stop him being sent back, but it would be unlikely to relish an all-out public row with the US. Obama did not offer any more details about the process in his PBS interview.

Instead, he addressed criticism that he has shifted a long way from the liberal positions he championed during his 2008 White House race, and denied that he had adopted the surveillance regime put in place by the previous administration "lock, stock and barrel". Obama said: "My concern has always been not that we shouldn't do intelligence gathering to prevent terrorism, but rather are we setting up a system of checks and balances."

The president said it was a "false choice" to say that American freedoms needed to be sacrificed in the goal of national security. "That doesn't mean that there are not tradeoffs involved in any given program, in any given action that we take. So all of us make a decision that we go through a whole bunch of security at airports, which when we were growing up that wasn't the case ... To say there's a tradeoff doesn't mean somehow that we've abandoned freedom." He added that it was his job to "make sure that we're making the right tradeoffs".

Obama praised the professionalism of the NSA and insisted that it did not listen to the phone calls or read the emails of US citizens. Only the FBI had that power, and then only with a warrant.

The president conceded that while he was confident the necessary system of checks and balances was in place, the public might not fully be aware of this. "What I've asked the intelligence community to do is see how much of this we can declassify without further compromising the program."

He also disclosed that he had set up an "oversight board" to examine the issues of privacy. "I've stood up a privacy and civil liberties oversight board, made up of independent citizens including some fierce civil libertarians. I'll be meeting with them." He did not give any further details about the board.

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Obama defends 'system of checks and balances' around NSA surveillance

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Barack Obama addressed what he described as the public "ruckus" over the leaked National Security Agency surveillance documents on Monday, indicating that the US authorities would pursue extradition from Hong Kong of the whistleblower Edward Snowden.

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Most Popular

Even as he described a dramatic increase in US military involvement in the region, the president avoided asking for the congressional consultation that is required by a US Constitution that explicitly affords Congress the power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

Rather, Obama announced, "I have the authority to address the threat from ISIL. But I believe we are strongest as a nation when the President and Congress work together. So I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger."

Translation: Obama is not inclined to seek the congressional advice and consent that is imagined and intended by the Constitution.

Congressman Jim McDermott, D-Washington, described the "I welcome congressional support" line as "really kind of condescending."

The question now is whether Congress will assert its clear authority as a co-equal branch of government to debate and vote on plans for war and, through the power of the purse, to define the scope and character of warmaking.

That assertion is unlikely to come from congressional leaders. And many House and Senate Democrats were quick to express support for the president's plans, while some Republicans argued that he should go further.

But a number of members of House and Senate continue to voice concerns about the lack of definition for the new initiative, and about the lack of clear congressional authorization for military action.

Senator Tammy Baldwin, D-Wisconsin, responded to Obama's remarks by expressing respect for the restraint she said the president had shown. But Baldwin added, "I remain concerned about the potential for open-ended U.S. military engagement in the Middle East." Congresswoman Linda Sanchez, D-California, expressed "reservations about expanding airstrikes into Syria. Committing U.S. military involvement to a country that is undergoing a complicated and lengthy civil war has serious potential international implications." Echoing Baldwin, Sanchez added, "I am concerned about the possibility of a protracted military campaign that might put American troops in future danger."

To address such concerns, Senator Angus King, an independent from Maine who caucuses with the Democrats, says he is working with a bipartisan group of senators to draft a resolution defining the president's authority. Unlike the open-ended authorizations given President George Bush in 2001 and 2002, King told The Washington Post, "I think that we should be talking about something that is much more limited. For example, in duration or defining who the enemy is."

King said there should be a congressional debate before the November election. "We have a constitutional responsibility to be engaged in this," he argued. "I'm frustrated by Congress's propensity to criticize and not make decisions. This is an opportunity where we should engage in this. I think it strengthens the country if we do so."

Senator Rand Paul, R-Kentucky, was blunter: "The Constitution is very clear. The power to declare war resides in Congress. If we are to go to war, Congress must approve."

That is the view that Congresswoman Lee has long held, and she restated it strongly on Wednesday night, saying, "The Constitution requires Congress to vote on the use of military force. This is not about this President. This is about any President and any Congress. We must re-establish the checks and balances laid out by the Constitution."

Congressional Progressive Caucus co-chairs Raul Grijalva, D-Arizona, and Keith Ellison, D-Minnesota, joined Lee in asking for immediate debate. "Congress must weigh in when it comes to confronting ISIL through military action," they said. "The voices of the American people must be heard during a full and robust debate in Congress on the use of military force. Speaker Boehner should put legislation authorizing military action on the floor of the House of Representatives before Congress leaves for the upcoming district work period."

Appearing on MSNBC's All In with Chris Hayes Wednesday night, House Armed Services Committee member John Garamendi, D-California, declared, "This is about war and this is a very serious matter. Mr. President come to Congress and get your authorization."

In a statement earlier Wednesday, Garamendi pointed out that "the U.S. Constitution and War Powers Resolution are clear: Congress is obligated to weigh in on extended U.S. military actions. No matter how noble the cause, no matter how just the engagement, Congress' voice and vote are required within a 60-90 day window."

Garamendi's office reports that "the 60-day window in our military campaign against ISIL ends on October 7th, although the precise date is subject to some interpretation."

While the congressman says "our current limited air strikes and special operations missions against the Islamic State have a clear purpose and are narrow and targeted in scope," he explains that "it's incumbent on Congress to vote on that strategy if it involves military action. To do otherwise ignores our Constitutionally-required duty. The people we represent and our brave men and women in uniform deserve better than that. They deserve a vote."

Garamendi's sentiments are shared by activists.

Democracy for America, the group formed by backers of Howard Dean's antiwar presidential campaign of 2004 was pointed in its call for a vote. Even as he decried ISIL as "a collection of brutal barbarians who threaten the stability of the Middle East," DFA's Neil Sroka said, "We remain deeply troubled by any plan for U.S. military engagement that has not been explicitly debated by the American people and voted on by Congress."

"While regional leaders and the global community must respond to ISIS's growing list of atrocities," Sroka explained in his statement, "after more than a decade of war, the American people and their representatives in Congress must have a calm, rational public debate of that response and the appropriate level of U.S. involvement."

That debate, argued the national group Peace Action, should weigh the wisdom of the military response that Obama has proposed. "We agree with the president that there is no military solution to the problems posed by [ISIL]," said Peace Action executive director Kevin Martin. "And yet his proposed strategy relies far too heavily on the use of military force. It's time to stop the bombing and escalation and use the other tools of U.S. foreign policy-working with allies in cutting off weapons, oil and funding streams for starters-which will be much more active in dealing with [ISIL]."

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Obama's Plan for Military Action Requires Congressional Checks and Balances

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Even as he described a dramatic increase in US military involvement in the region, the president avoided asking for the congressional consultation that is required by a US Constitution that explicitly affords Congress the power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

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A federal judge in Texas last night temporarily blocked the Obama administration's executive actions on immigration. The judge, responding to a suit filed by 26 Republican-run states, did not rule on the legality of immigration orders but said there was sufficient merit to the challenge to warrant a suspension while the case goes forward.

No law gave the administration the power "to give 4.3 million removable aliens what the Department of Homeland Security itself labels as 'legal presence,'" the judge said in a memorandum opinion. "In fact the law mandates that these illegally-present individuals be removed." The Department of Homeland Security "has adopted a new rule that substantially changes both the status and employability of millions."

The Obama orders would offer a legal reprieve to the undocumented parents of U.S. citizens and permanent residents who have resided in the country for at least five years. This would remove the constant threat of deportation. Many could also receive work permits.

They would also expand the 2012 Deferred Action for Childhood Arrivals (DACA) program that allows certain young people who arrived in the United States illegally as children to apply for two-year work permits and exemptions from deportation.

Some 4 million to 5 million undocumented immigrants were said to be potentially eligible to benefit from the executive actions.

The administration's directives announced in November have been vigorously challenged by Republicans in Congress and across the country, who cite them as examples of what House Speaker John A. Boehner (R-Ohio) has called Obama's "legacy of lawlessness." The administration has defended them as routine exercises of presidential authority, made necessary by Congress's failure to enact comprehensive revisions to U.S. immigration law. U.S. District Judge Andrew S. Hanen in Brownsville strongly disagreed.

It was a major, if temporary, defeat for the administration, which argued that the case should be thrown out as meritless, "based on rhetoric, not law."

The immediate impact appeared likely to at least delay the application process, which was to begin Wednesday, for some undocumented immigrants wishing to take advantage of the new policies.

Hanen was appointed to the bench by George W. Bush and has been outspoken against the administration's immigration policies in other cases recently.

The White House in a statement early Tuesday defended the executive orders issued in November as within the president's legal authority, saying that the U.S. Supreme Court and Congress have said federal officials can set priorities in enforcing immigration laws.

"The district court's decision wrongly prevents these lawful, commonsense policies from taking effect and the Department of Justice has indicated that it will appeal that decision," the statement said.
Said Republican Sen. John Cornyn of Texas: "Today's ruling reinforces what I and many others have been saying for a long time: that President Obama acted outside the law when he went around Congress to unilaterally change our nation's immigration laws. Today's victory is an important one, but the fight to reverse the President's unconstitutional overreach is not over. The President must respect the rule of law and fully obey the court's ruling."
Republicans in Congress have threatened to deny funding to the Department of Homeland Security unless the appropriation includes provisions rolling back the immigration orders - amendments certain to be vetoed by Obama, possibly leading to a partial DHS shutdown.

Specifically, the lawsuit claimed that the president's orders unilaterally changed federal immigration law, usurping Congress's exclusive power to legislate, and violated the president's constitutional duty to "take care that the laws be faithfully executed."

It also said Obama violated the Administrative Procedure Act by not running his orders through the elaborate process of rulemaking - including 90-day notices and comment periods - instead just ramming them through via directives.

The administration countered that the states would suffer no harm from the executive orders and thus they had no standing to sue. It argued as well that the executive branch has sufficient power over immigration, including "prosecutorial discretion," to implement the changes just as it did.

Hanen based his temporary injunction on his belief that the administration, in making such a sweeping change to what current law "mandates," at the very least failed to comply with the Administrative Procedure Act's provisions on "notice and comment." He said the case should go forward rather than be thrown out, as the administration has urged.

He said it was necessary in the meantime to stop implementation in part because failing to do so could prove costly to the states. They would have to deal with suddenly legalized immigrants who, "armed with Social Security cards and employment authorization documents," would start seeking various government benefits and services. "Once these services are provided, there will be no effective way of putting the toothpaste back in the tube" should the states ultimately prevail on the merits, he said.

The order was made public by Texas Gov. Gregg Abbott (R), who filed the suit on Dec. 3, when he was the state's attorney general.

"President Obama abdicated his responsibility to uphold the United States Constitution when he attempted to circumvent the laws passed by Congress via executive fiat," Abbott said in a statement, "and Judge Hanen's decision rightly stops the President's overreach in its tracks. We live in a nation governed by a system of checks and balances, and the President's attempt to by-pass the will of the American people was successfully checked today."

Reaction from immigrants' rights groups was swift. "Judge Hanen's ruling is not permanent and we are confident that it will be repealed in a higher court," Cristina Jimenez, managing director of United We Dream, a Washington, D.C.-based immigrant advocacy group, told the Los Angeles Times. "Republican attacks like this lawsuit do not scare us, they just focus our resolve to make these programs even more successful."

"We are confident that the higher courts will reject this lawsuit since it has no legal merit and only wastes taxpayer dollars," the group said in a statement.
RELATED: The full memorandum opinion Jonathan Adler's post on the order in the Volokh Conspiracy Your complete guide to Obama's immigration executive action Read more from the Morning Mix

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Federal judge in Texas blocks Obama immigration orders

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A federal judge in Texas last night temporarily blocked the Obama administration's executive actions on immigration. The judge, responding to a suit filed by 26 Republican-run states, did not rule on the legality of immigration orders but said there was sufficient merit to the challenge to warrant a suspension while the case goes forward.