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Date: Nov. 2020
From: Harvard Law Review(Vol. 134, Issue 1)
Publisher: Harvard Law Review Association
Document Type: Article
Length: 11,360 words
Lexile Measure: 1420L

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The election of Donald J. Trump, although foretold by Matt Groening's The Simpsons, (1) was a surprise to many. (2) But the shock, disbelief, and horror were especially acute for the intelligentsia. They were told, guaranteed really, that there was no way for Trump to win. Yet he prevailed, pulling off what poker aficionados might call a backdoor draw in the Electoral College.

Since his victory, the reverberations, commotions, and uproars have never ended. Some of these were Trump's own doing and some were hyped-up controversies. We have endured so many bombshells and purported bombshells that most of us are numb. As one crisis or scandal sputters to a pathetic end, the next has already commenced. There has been too much fear, rage, fire, and fury, rendering it impossible for many to make sense of it all. Some Americans sensibly tuned out, missing the breathless nightly reports of how the latest scandal would doom Trump or why his tormentors would soon get their comeuppance. Nonetheless, our reality TV President is ratings gold for our political talk shows.

In his Foreword, Professor Michael Klarman, one of America's foremost legal historians, speaks of a degrading democracy. (3) Many difficulties plague our nation: racial and class divisions, a spiraling debt, runaway entitlements, forever wars, and, of course, the coronavirus. Like many others, I do not regard our democracy as especially debased. (4) Or put another way, we have long had less than a thoroughgoing democracy, in part because we have tolerated (indeed celebrated) certain nondemocratic elements. Think of judicial review and the Constitution's limits on majoritarian rule. Klarman rather favors certain forms of nondemocratic decisionmaking, as when he exhorts unelected courts to invalidate legislative gerrymandering and voter identification laws. (5)

Even if one accepts Klarman's argument that American democracy is in a death spiral, in part because of Trumpian rhetoric and conduct, the grim truth is that President Trump has not stretched his office more than his predecessors. Indeed, when critics charge that a President has done something illegal or unconstitutional, the accusation is barely newsworthy, for it has a dog-bites-man quality. In adopting expansive (and sometimes implausible) readings of his legal authorities, President Trump has august company, for Bill Clinton, George W. Bush, and Barack Obama were no different. This secular expansion of presidential power, and not Donald Trump, constitutes an enduring threat to our Constitution. With each passing administration, the implied limits of Article II fade while its perceived grants of authorities noticeably balloon. The second branch has slowly swallowed the authorities of the first, and, perhaps one day, it will also free itself of the constraints imposed by the third.

Like his predecessors, the current President pursues his ends using the tools at his disposal. Every modern President relies on legal advice from executive branch lawyers and is happy to discover that they enjoy vast arrays of statutory and constitutional authority. These lawyers, both career and political, tend to favor broad readings of executive power, stroking the hand that...

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Gale Document Number: GALE|A644527674