The unasked question

Should presidential power be ever-expanding?

When the U.S. Supreme Court was formulating its 5-4 decision on Trump vs. Hawaii, the controversial case based on President Donald Trump’s so-called “travel ban,” the court was presented with at least three major questions.

The first was the matter of religious animus: Had the president, in personal remarks and campaign rhetoric, singled out the Muslim religion? Was the ban based on a “religious test”? The majority of the court set that matter aside, which the minority found outrageous.

The second question was whether the president, any president, has the authority to deny foreign nationals the right to enter the United States under the Immigration and Nationality Act of 1952.

In his majority opinion, Chief Justice John Roberts simply read the act. He wrote that the president clearly does have this power. And he made a strong case. Justice Roberts wrote that the statute “exudes deference to the president in every clause,” and that the president is trusted to decide who may be suspended from entering the U.S., under what conditions, and for how long.

This is separate from the question of whether the travel ban is good, or even applicable, public policy, or largely political signaling.

But, traditionally, and based in this statute, Justice Roberts is correct. The right to deny entry has been considered a legitimate presidential prerogative.

The third question had to do with presidential power, and the growth of that power over many years — especially from the time of the New Deal on, with some interruption in the mid-1970s because of the all-too-obvious abuses of presidential power by Presidents Nixon and Johnson.

This question, the court also declined to address.

Since the formation of the United States, presidential power has been an issue of contention, and, mostly, the constitutionalists have lost.

The Framers of the U.S. Constitution carefully crafted the office of the presidency to be limited in scope and balanced against the other two branches of the federal government.

That balance has been lost, as virtually every president — James K. Polk and Calvin Coolidge were exceptions — has sought to expand the powers of the presidency.

This trend has only accelerated since the start of the 21st century. The war on terror and the national security state allowed Presidents George W. Bush and Barack Obama to claim the right to unilateral decision-making, and rule-making. That is not the presidency the Framers created.

Modern presidents unilaterally go to war, suspend claims to privacy and due process, reorganize and redirect the intelligence agencies, and make immigration policy.

The Immigration and Nationality Act of 1952 gives the president almost absolute powers. In the light of the incredibly broad powers that modern presidents already claim, should he have those powers? Or should Congress — not the courts, but Congress — rein in the president?

Barack Obama, as he expanded the unconstitutional powers of his presidency, though he had been a constitutional law professor, seemed to say that sensible people could trust his usurpation because they knew of his intelligence and lofty goals.

The approach of the Framers was different. It was: Imagine that the worst possible person occupies the presidency. In that case, what powers would we want that person to have?

This is the core idea of a limited government and a limited, constitutional presidency — of a government of laws and not of men: Imagine power in the hands of the worst, not the best.

Because you approve of the occupant of the presidential office, or the goal he seeks, it does not follow that he should have all the power he desires.

The court is driven, from time to time, by constitutional “originalists.” There is no question that the modern presidency is not what was originally intended. Yet the court has failed utterly in this case, and in many before it, to even tentatively engage this question.