A Democrat with dictatorial powers

Imagine a Democratic president with dictatorial powers. What would a President Sanders or Warren do if there were no restraints on their power?

What if they could launch wars without involving Congress? What if they could set tariff rates? What if they could spend money that Congress had refused to appropriate? What if they could declare global warming to be a national emergency, and order US companies to divest from polluting countries?  What if homelessness was declared a national emergency?

You might argue that the GOP would never stand for this. But the GOP has forfeited all credibility, as it is refusing to oppose Trump’s claims that he can declare various “national emergencies” and do whatever he wants.  Here’s the NYT, discussing Trump’s recent claim that he can force companies to leave China:

“In the 20 years I’ve been doing this, I have not seen anything where there was not a national security threat,” said Mr. Smith, who until last year was director of the Treasury Department’s Office of Foreign Assets Control, which enforces the emergency powers law. “This is a completely different use of a well-utilized tool in going after what appears to be a purely economic dispute.”

But even if an unprecedented stretch of the law, some international trade lawyers said it was written broadly enough that Mr. Trump could prevail.

“The statute gives the president the right to do just about anything if he or she first declares that here’s a national security threat to the United States,” said Judith Alison Lee, a lawyer at Gibson Dunn in Washington. “It would be hugely disruptive but, technically speaking, I think the statute gives him that authority.” . . .

[C]ongressional Republicans, who consider free-market principles a defining tenet and jealously guard their jurisdiction over trade, have balked in the past at Mr. Trump’s threats to intervene in the economy.

At the same time, given years of dealing with the president’s whipsawing declarations, particularly on trade, many Republicans have concluded that there is no upside to publicly breaking with Mr. Trump, preferring instead to try to influence him privately.

We like to believe that American presidents are not dictators, which may be true.  But that’s not because they lack dictatorial powers, rather it’s because they were too embarrassed to fully exercise those powers.  Over time, that reluctance has been gradually breaking down.  The GOP criticized Obama for overstepping his authority, and Trump has gone even further.  Trump is less easily embarrassed than any previous president.

Admittedly, Trump’s not so much the problem, as the manifestation of a problem that’s gradually been growing over time.  In 1974, Congress reined back presidential authority after Watergate.  I don’t expect that to occur this time, as politics is now too polarized.

Look for the next Democratic president to enact a wide array of socialist policies using emergency executive authority.  She may try to pack the Supreme Court.  Republicans who got hysterical over Clinton and Obama will then long for the “good old days” of constitutionally restrained Democratic presidents.



30 Responses to “A Democrat with dictatorial powers”

  1. Gravatar of Mike Sandifer Mike Sandifer
    27. August 2019 at 15:17

    I’m fine with packing the court, after McConnell refused to even consider Garland. That was a stolen seat, and Democrats have to start pushing Republicans around to reach some kind of grand bargain to restore norms. I say, pack the Supreme Court with a couple of extra Justices, and threaten to do far more unless Republicans agree to stop stealing seats in the future.

  2. Gravatar of El roam El roam
    27. August 2019 at 15:58

    Important post, complicated issue ( extremely so ). But, generally speaking, one should ask, what does distinguish between them both (dictator Vs. president or ruler in democratic regime):

    And first, the president or ruler in democratic regime, can act only in accordance with the law and constitution. If not, second test or parameter comes in:

    Would he obey decision of courts, reversing and redirecting his actions, taken unlawfully, and unconstitutionally. If:

    There is possibility for parties to petition the court for remedy, and the president would obey the ruling or decision of the court:

    Then, we don’t deal typically, with dictatorial power.And finally:

    The power of the Senate, to impeach the president if needed.

    Now, is it possible, that those three parameters would fail the system ? This is the question or the issue. I think the answer is pretty obvious ( so far, or for the time being).

    By the way:

    Very recommended article in “Lawfire” ( Charlie Dunlap ) concerning the issue of emergency laws,and the proclamation of a national emergency at the southern border.




  3. Gravatar of P Burgos P Burgos
    27. August 2019 at 17:51

    So Sumners is a pessimist on the continuation of the US as a democracy with the rule of law? What country would he counsel his daughter to emigrate in order to avoid living through whatever convulsions happen to change the US into an authoritarian country?

  4. Gravatar of Lorenzo from Oz Lorenzo from Oz
    27. August 2019 at 18:02

    That is how patterns of polarisation happen.

    The various ways that the US is looking like it did in the 1850s is striking: territorially divided and economically divided country (Urban archipelago v Heartland counties)with migration pressures making things worse.

    Robert Fogel’s “Without Consent or Contract” is the book to read.


  5. Gravatar of Justin Justin
    28. August 2019 at 06:38

    Mike, packing the court in our political environment would probably be a serious mistake.

    Suppose Republicans preemptively pack the court and that court declares, based on a reading of the 14th amendment, that preborn children are persons and that, therefore, abortion is just as prohibited in the United States as slavery.

    Do you think very liberal states would accept that outcome, from a packed court? I think it’s likely that they would point to the court packing itself as making the ruling illegitimate and nullify any rulings they didn’t like which came from the packed court.

    There seem to be only three options as to what comes next:

    1) Somehow the Federal government removes the extra justices and restores the court’s legitimacy by nullifying the packed court’s rulings. Hopefully that is what would happen, but I’m wondering if it would even be possible as justices are appointed for life.

    2) The Supreme Court permanently loses its authority. Roe v. Wade will likely in turn be nullified in conservative states (which, from the perspective of an anti-abortion justice, might be reason enough to remain on the packed court). Without an authoritative interpreter of the Constitution, there will effectively be no Constitution.

    3) The Federal government follows the pattern of 1861 and uses military force to reestablish its authority over the rebellious states.

    In short, I don’t think escalation will restore norms, rather, they create a serious risk of further escalation and destabilization.

  6. Gravatar of msgkings msgkings
    28. August 2019 at 12:58

    @Mike Sandifer:

    Agreed, that was way over the line with Garland. Fairly unconstitutional actually. That’s the point where partisanship went too far and now needs drastic measures to rein in. Not sure packing the court is the answer, but perhaps it is.

  7. Gravatar of mbka mbka
    28. August 2019 at 13:16

    If Bernie Sanders were dictator, the country would turn into Venezuela.

    Fossil fuels would be outlawed in the US.

    $18 trillion ‘new green deal’ would become law.

    Blog owner is INSANE AND STUPID

  8. Gravatar of mbka mbka
    28. August 2019 at 13:20


    Salty yet?

    The criminal Democrats are going to be exposed to the world and mark my words, the Satanic D party WILL CEASE TO EXIST.

  9. Gravatar of mbka mbka
    28. August 2019 at 13:24


    If democrats were dictators SLAVERY WOULD RETURN

  10. Gravatar of mbka mbka
    28. August 2019 at 15:02


    N X V I M

    He knows.

    We know.

  11. Gravatar of Mike Sandifer Mike Sandifer
    28. August 2019 at 15:03


    One reason facsism has broken out is because Democrats have failed to punish Republicans when they deserved it. Tit-for-tat evolved as an evolutionary strategy for a reason. Democrats are too stupid and cowardly to kick asses when needed.

    Democrats have allowed Republicans to hold the entire country hostage with threats to default on our debt, etc., taking advantage of the fact that Democrats care more about the welfare of the country. Sometimes, you have to be willing to risk damaging a country to save it.

  12. Gravatar of ssumner ssumner
    28. August 2019 at 17:46

    Mike, You said:

    “I’m fine with packing the court, after McConnell refused to even consider Garland.”

    That sort of reasoning process leads to disaster. The only thing worse than Trump would be a court packing Democrat. That’s banana republicanism. FDR’s attempt to do this was one of the most disgraceful moments in American history–even his own party couldn’t stomach the move.

    Burgos, That’s just an idiotic comment.

  13. Gravatar of Mike Sandifer Mike Sandifer
    28. August 2019 at 17:56


    You could be right, but do you see no virtue in the argument that Democrats haven’t practiced nearly enough tit-for-tat? And, as I said, the court packing would be to restore the Court to the balance it should have had if norms had not been violated. I also said that Democrats should then threaten more court packing unless Republicans agree to recognize norms again.

    Should Democrats really continue to meet scorched-earth, unconstitutional politics with concerns about how THEY might damage the country? Isn’t this part of the actual problem?

    I think there’s plenty of risk in letting things go on as they have. The hapless Democrats in the House won’t even impeach an obvious, unrepentant President who’s openly obstructed justice and abused power in numerous ways.

  14. Gravatar of Xu Xu
    28. August 2019 at 19:36

    Packing the supreme court would be unequivocally, the dumbest thing you could so. It is mind boggling, an shocking, that your mike sandifer would propose such a thing. This is the very partisan rhetoric and bickering that will destroy us. He says “push them around”. 1) that is not a democratic starement. 2) setting a bad precedent by packing the court will only lead to court packing when the conservatives own the majority. Are we going to have 100 justices because each party packs while having majority. Think first, write later. My gosh academics are brainless foot dragging, knuckle dragging neantherdals. Holy moly of god folks….common sense please

  15. Gravatar of P Burgos P Burgos
    28. August 2019 at 21:44

    If the president isn’t constrained by the courts or by congress, they would almost by definition be an elected dictator, and by definition the executive branch would be beyond the reach of the law. I don’t see what is stupid about not wanting to live in a country ruled by a dictator, even if the dictator wins an election. I mean, Putin has won several elections.

  16. Gravatar of P Burgos P Burgos
    29. August 2019 at 03:09

    I should give Michael Sandifer credit for pointing out that the US may well be on its way to a system where the President packs the “Supreme” Court with cronies that will rubber stamp whatever the President wants to do.

  17. Gravatar of John Boy John Boy
    29. August 2019 at 04:56

    Democrats buy votes with entitlements, using other peoples money. Republicans buy votes with tax cuts without budget cuts, costing all a future. Neither one cares a whit about us, just their next election and vote.

    We already have two dictators, Dems and Repubs. Its time we stop shouting at one another and start listening to the constitution, it worked for a long time without help from either party.

  18. Gravatar of Justin Justin
    29. August 2019 at 07:18


    What you propose isn’t tit for tat, it’s escalation. Trump isn’t packing the court right now. He’s been repeatedly frustrated by Congress and lower court decisions (e.g. regarding his travel ban). Per Newsweek this summer, Trump has only managed to get 46.7 miles of his signature wall built. If he’s a dictator, he’s far less effective at getting his priorities taken care of then any dictator I’ve ever heard of.

    Democrats packing the Supreme Court is more likely to cause the de facto elimination of the judicial branch of the federal government than to be a great success for Democrats, given the polarization of our society.

    A packed court will almost certainly make a decision that will be so progressive and so toxic to conservative states that some of those states may reject that decision and pretend it never happened. Once you have the precedent of states overriding the Supreme Court on judicial review, you probably can’t put that genie back in the bottle unless you very quickly unpack the court and nullify those decisions federally. Failing to do so means that either the Supreme Court is powerless or federal force will be required to bring recalcitrant states into line.

    If I’m wrong, and there is no meaningful dissent, then court packing will become the norm and when conservatives take power, they will pack the court further and reverse all of the progressive decisions. Maybe this will be sustainable, maybe not.

    From a perspective of maintaining institutions, the best bet is to try to treat Trump as an aberration rather than a new normal. There’s a better than even chance that in less than a year and a half, he will be gone.

  19. Gravatar of msgkings msgkings
    29. August 2019 at 10:28

    @Mike Sandifer:

    The Dems are not impeaching Trump because there is no way the Senate would convict him. So they do the symbolic impeachment, which only hurts their chances to unseat him by firing up his base and leaners who would think it’s going too far. And he would stay President.

    So impeaching Trump is a terrible idea even though he probably deserves it.

  20. Gravatar of ssumner ssumner
    29. August 2019 at 17:05

    Mike, The Dems don’t need tit for tat, they need to present good options to voters. Let’s see who they nominate in 2020. I fear it will be someone like Warren.

  21. Gravatar of Mike Sandifer Mike Sandifer
    29. August 2019 at 20:45


    First, I think the Republican Party is going to be forced into the wilderness for a very long time soon, if not beginning with the next election cycle.

    Second, even if we entered a period in which both parties routinely pack the Supreme Court when holding the Senate and White House, it might actually take the emphasis off the Court nominations and force more compromise.

    I don’t think you’re thinking about things clearly at all. Since Republicans got away with refusing to even considering the Democrat’s last nominee to the Court, what happens if they just never consider another Democratic nominee again?

    You seen to fail to realize that the Republican Party is neither republican, or democratic.

  22. Gravatar of Mike Sandifer Mike Sandifer
    29. August 2019 at 20:51

    P. Burgos,

    Yes, the Republican Party is a fascist party, so what incentive do they have to ever respect their duties in running a legitimate republican government, including following the rules? What part of them refusing to consider a Democratic nominee, suppressing votes, falsely acussing Democrats of voter fraud do you not understand?

  23. Gravatar of Mike Sandifer Mike Sandifer
    29. August 2019 at 20:53

    John Boy,

    No, there is a Democratic Party and a fascist party. If you’re too blind to tell the difference, nothing I say will matter.

  24. Gravatar of Mike Sandifer Mike Sandifer
    29. August 2019 at 21:00


    Trump is no aberration. He was just the first in our history to openly tap the fascist vote. You say he hasn’t packed the court, but he’s openly attacked the courts, he’s abused power and obstructed justice with impunity, he’s seized the power to unilaterally direct funds to his pet projects, etc. He’s also demonized anyone who disagrees with him.

    The Republican Party, minus the decent Never Trumpers are just fine with all this, always have been, and always will be.

  25. Gravatar of Mike Sandifer Mike Sandifer
    29. August 2019 at 21:09


    You’re right that Democrats need to practice better politics of course, but what incentive do Republicans have to follow the rules? What if a Republican Senate never considers another Democratic nominee? What incentive do they have to ever consider another one? It’s clear there’s been a long campaign to delegitimize the Democratic Party.

    What if Trump refuses to leave office if he loses? Republicans set this table by spending decades falsely accusing Democrats of wide scale voter fraud. I think you’re underestimating the risk these fascists pose.

    You could be right, but I fear better politics on the left is necessary, but not sufficient. Fascists have a habit of not just stepping aside just because the rules demand it.

  26. Gravatar of Mike Sandifer Mike Sandifer
    29. August 2019 at 21:17

    Frankly, I think Obama was too decent. In cases in which right-wing terrorists take over federal buildings, such as occurred in the Pacific Northwest, a Mayberry response doesn’t cut it. It would be welcome in a healthy body politic, but what should have been done is have federal agents surround the area, give the terrorists seconds to surrender, and then open fire if they don’t. Then, give a short address to the nation about the need to kill these terrorists. Obama lacked the toughness to deal with fascism. He wouldn’t even call them terrorists.

    We need to call these fascists what they are. Let Republicans accuse us of demagoguery. They accuse us of the most heinous crimes anyway.

  27. Gravatar of El roam El roam
    30. August 2019 at 06:33

    Comment posted by me, has disappeared, so again:

    By the way, recommended one ( speaking of China and the authority of the president , concerning US companies therein to leave) here at “Lawfare” titled as:

    “How to Reform IEEPA”


  28. Gravatar of Tom Brown Tom Brown
    30. August 2019 at 11:09

    Exactly. Spot on Scott.

  29. Gravatar of Tom Brown Tom Brown
    30. August 2019 at 11:32

    If the Democrats play by the pre-Trump rules, all their grand plans will amount to nothing. They’ll be lucky to pass a budget. The GOP and the Tea Party will suddenly remember that they’re supposed to pretend they care about fiscal responsibility again and they’ll go into the attic and dust off their Tri-Corner hats.

    And even though I hate GOP obstructionism, I kind of hope that’s what happens. All these grand plans should be exposed as the unrealistic dreams they’ve always been. I’m voting for a return to normalcy.

    The court won’t get packed, the 2nd Amendment isn’t going away nor the Electoral College, not the Senate.

    However, although I want the Dems to play by the pre-Trumpian rules (assuming they again hold the WH), I would like them to consider what needs to be done constitutionally and legally to re-balance power a bit. To accomplish that requires control of the senate. Democrats should seek to control the house, senate and WH. Once they do they should set about putting into motion a rebalancing of power, which I think means admitting Puerto Rico as a state, eliminating the 435 cap, and dividing up some high population blue states into smaller states. California should be top of the list. California can probably be broken down by watershed, so maybe 5 to 10 states. Consideration should be made for other blue states too, and to be fair let Texas divide as well if they want. This is 100% constitutional, and in fact has been done before (e.g. when Kentucky county Virginia, broke away from Virginia and became a separate state). Politically an ideal rebalancing would be one state per congressional district. But that’s probably too unrealistic for a host of reasons (control of watersheds among them). But we don’t need to go that far: just far enough to break the back of the current status quo.

    They should also actively work to REDUCE the power of the WH, working on the assumption that they will lose the WH again in the near future. The constitution gives congress enormous power and they need to take it back.

  30. Gravatar of Michael Sandifer Michael Sandifer
    30. August 2019 at 12:02

    Tom Brown,

    I agree that the Court probably won’t be packed. It’s pretty clear Democrats would never do something so bold. They’re like the team scripted to lose to the Harlem Globetrotters.

    I also agree that we Democrats should favor decentralizing federal power, but I don’t see that happening either.

    And, yes, we need electoral reform, but… yes, I don’t see that happening.

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