It was 2002 and officials in George W. Bush’s administration were weighing a tricky question: Should they use the American military to break up a suspected cell of al-Qaeda collaborators — not in Helmand Province, but in Lackawanna, N.Y.?
The answer should have been a firm “no.” The Posse Comitatus Act of 1878 forbids the federal government from deploying troops on American soil (with an exemption for the National Guard). But advocates of boots near Buffalo had a fig leaf: a Justice Department memo from late 2001 that granted the president latitudinous authority against domestic terrorists. They also had a powerful advocate in Vice President Dick Cheney.
#ad#President Bush ultimately overrode Cheney and sent in the FBI, but it wasn’t the last time his administration would hold a candle too close to posse comitatus law. Following Hurricane Katrina, Bush asked Congress to pass legislation allowing the military on American soil in the aftermath of a natural disaster or terrorist attack.
The principle behind the Posse Comitatus Act is a sound one: The military is a wartime instrument free from many legal constraints, while law enforcement is charged with policing the homeland — mix the two and you have a recipe for domestic tyranny. To illustrate, let’s consider a hypothetical scenario: The public elects as president a mercurial man-child who possesses enormous self-regard, acts almost entirely on caprice, and has contempt for the rule of law. We’ll even complete the banana-republic imagery by giving him ridiculous hair.
Aren’t we better off knowing our imaginary potentate can’t deploy the military to Lackawanna or Los Angeles? And shouldn’t we avoid setting such a precedent?
Today, we’re forced to consider the possibility that Donald Trump might be sitting in the Oval Office next year. Many conservatives are horrified that this could happen, and have rightly denounced Trump as a red-alert threat to small-l liberalism. What they miss is that — by so often siding with Cheney and supporting the Bush administration’s executive enlargements — they’ve given a hypothetical President Trump ample precedent for abuse he might otherwise not have had.
Think back to some of the controversies of the War on Terror. Should anyone trust Donald Trump with his personal metadata, collected in bulk by the NSA? Especially after Trump gave out Lindsey Graham’s personal cell-phone number? What about our e-mails and browsing history? Are we better off knowing that Trump could seize suspects and send them to Guantanamo Bay? How about the power to issue signing statements that circumvent the law? And what about Hillary Clinton? Can anyone sleep well knowing she could indefinitely detain American citizens? Justice Scalia certainly didn’t.
The Bush administration’s apologists justified those policies by observing that we live in a post-9/11 world — a shifting of epochs on par with the end of the Cretaceous Era — where government needs to be nimble in its response to terrorism. The problem is that human nature in the post-9/11 world looks an awful lot like human nature in the pre-9/11 world, and American power is only as beneficent as the man wielding it.
American power is only as beneficent as the man wielding it.
Donald Trump may not be an American Caesar — after all, Julius Caesar went through the trouble of serving in the military, and Bellum Gallicum is far more literate than The Art of the Deal — but he’s certainly the sort of strongman our Founders feared would hijack the system they created. This is the same guy whose henchman, Roger Stone, suggested CNN’s broadcasting license be revoked because Stone didn’t like its coverage of Trump. It’s not reckless surmise to say a Trump administration would govern like authoritarians: They’ve openly promised to do so.
America is a good country with a brilliant Constitution and an unprecedented standard of living, but it’s subject to Burke’s fears and Acton’s axioms just the same.
We’re no more immune to spasms of unreason than were France and Germany. And if a leader riding the mob arrives in high office to find he can wage war without legislative approval and send in EPA SWAT teams, well, that just makes his job all the easier, doesn’t it? The best hope of mitigating a Trump win in November would be for the other branches of government to check and balance him. Thanks to the expansion of the powers of the executive, that will be far more difficult to do.
Presidents George W. Bush and Barack Obama deserve particular blame for our engorged executive, but the problem runs deeper than that, into the bedrock of our political culture. We’re all culprits here. We lambaste “do-nothing” Congresses for not regularly ramming through gargantuan overhauls of society. We prefer the singular and expeditious displays of power that come from our presidents, whom we revere. Our most over-exalted leader, so godly he can be conjured up by only the initials “JFK,” is remembered as sitting at the head of his own Camelot — fitting, in that this sort of monarch worship hearkens back to the Dark Ages. It’s always easier to vest one’s civic pride in a figurehead rather than a squawking gaggle of legislators, but the president is no mere figurehead. Unlike, say, the queen of England, he commands the awesome apparatus of government.
Gene Healy has dubbed this the “cult of the presidency”; in Donald Trump, the cultists have found their L. Ron Hubbard. The entire Trump phenomenon is premised on the exercise of power by a single virile figure, cheered on by the masses. “I will fix,” Trump regularly pronounces on Twitter — no details required, and with an emphasis on the first-person pronoun. It should go without saying that this monocratic approach is incompatible with our delicately arranged form of government.
Defending classical liberalism must mean more than firing off hash tags about Charlie Hebdo; it means defending all our rights, including the less convenient stuff about warrants and trials. It means remembering Madison’s warning that “power is of an encroaching nature,” and keeping the presidency off of Congress and the states. And it means the sort of constitutional housekeeping that frustrates those who only want to focus on the big issues.
Too often, we’ve abdicated those duties in favor of an executive who we imagine can end inequality and evil. Donald Trump is a chilling reminder that we can’t afford to make that mistake any longer.
— Matt Purple is the deputy editor of Rare Politics.