The office Donald Trump holds carries way more power — with far fewer checks and balances — than the one George H.W. Bush did.
Where Bush 41 was largely held to the conventions of the post-Nixon reform era, Trump is a creature of the post-9/11 era, wielding far-reaching unilateral powers and frequently flouting the rule of law.
“I would argue that the most important difference now as opposed to under Bush 41 is that the Watergate/Iran-Contra legacy is more distant and less robust,” American University law professor Chris Edelson told me via email.
It was Bush 41’s son, George W. Bush, who changed the presidential power dynamic the most. He used the 9/11 terror attacks as an excuse to clamp down on civil liberties and go to war in Iraq, adopting Vice President Dick Cheney’s radical “unitary executive theory” that a president’s Article II powers over the executive branch are absolute.
“That was a frontal assault on the rule of law and an explicit claim that the president can set aside the law in specific areas,” Edelson said.
Congress, rather than rebuke the president and assert its constitutional power, actually encouraged Bush’s power grab.
And Barack Obama, despite his campaign promises, embraced many of Bush’s expanded powers, such as the use of drones for targeted killings, bulk surveillance and indefinite detention.
“Trump has of course gone far beyond anything GW Bush or Obama — let alone Bush 41 — ever did,” Edelson said. “But he benefited from the post 9/11 expansion of presidential power, which in part helped to erode presidential accountability to the rule of law.”
Georgetown University law professor Victoria Nourse proposed another way to look at how the office has changed: by judging “how far a president has departed from settled norms about presidential power developed in the past.”
George H.W. Bush departed from at least one norm: He pardoned six defendants in the Iran-Contra scandal — including former Defense Secretary Caspar Weinberger, 12 days before he was set for trial. Special Counsel Lawrence Walsh concluded in his report that “The Weinberger pardon marked the first time a President ever pardoned someone in whose trial he might have been called as a witness, because the President was knowledgeable of factual events underlying the case.”
But Trump barrels through norms like they weren’t there.
“This president, unlike any other president since Andrew Johnson, has departed from those norms,” Nourse said. “He courts our enemies, like Russia and North Korea. He daily indicts the rule of law. He gives the appearance of corruption and appears not to give a fig that a foreign power may have stolen our election.”
Bush 41 served during the end of the Cold War, when the perception of external threats was decreasing. But as Princeton University history professor Julian Zelizer told me, “the expansion of the counterterrorism program post 9/11 was like early Cold War in increasing the number tools the executive branch has to pursue its goals.”
Zelizer described two other factors that make the Trump presidency so powerful.
One is “the fragmentation and decentralization of information, as Trump has shown with Twitter,” which has dramatically increased the president’s ability to reach the public directly, without gatekeepers.
The other is political polarization. “When there is united partisan control in era of strong polarization, the president is insulated and protected from political attacks,” Zelizer said. “None of this makes a president invulnerable nor can they do anything they want. But 45 does enjoy many powers 41 did not have.”
The steady expansion of executive power has been particularly pronounced in the national security realm, American University law professor Jennifer Daskal said, “based in large part on ever-expanding understandings of the kinds of military actions that can be taken without congressional authorization, coupled with a broad relinquishment by Congress of its war-authorizing role.”
Modern presidents have entirely new ways of making war that Bush 41 didn’t, including drone strikes and cyberattacks that reduce the cost of engaging in conflict and don’t create the same complications as sending in troops.
Daskal does credit the courts with setting at least some of the limits that Congress refuses to. “There have been notable areas where the courts have pushed back, even in the area of national security, and even in the wake of the 9/11 attacks,” she said.
To say that Trump has expanded power does not mean that Bush 41 didn’t have plenty. As Zelizer put it, the presidency “is much more powerful today and it was already pretty powerful in 1989.”
George Washington University law professor Jonathan Turley pointed out, in an email, that Bush 41 “pursued an expansive policy on presidential power as did Reagan.”
Indeed, much as Reagan invaded Granada without congressional authorization – or even knowledge – Bush 41 did likewise with Panama.
“Bush Sr. was entirely a product of the executive branch and saw solutions largely in terms of executive power,” Turley said. “From his time as a combat pilot to the CIA to the vice presidency to the presidency, Bush identified with Article II as the thumping heart of the American government.”
The expansion of presidential power has been going on “uninterruptedly for decades,” Turley said, “to a point that it would be highly troubling for most framers who expressed reservations about the position in the tripartite system.”
Although that growth has indeed been uninterrupted, I think there is a strong argument to be made that 9/11 and Trump’s election are major inflection points. Bush 43’s response to the terror attacks dramatically expanded presidential power with nearly no resistance; Trump’s rise shows just how profoundly dangerous that is.
The Bush 43 and Obama approaches “amounted to a theory that presidents can be trusted with broad unilateral power in the area of national security, and that Congress is in many ways a junior partner at best,” Edelson said.
The obvious danger: “What happens if someone is president who cannot be trusted with this power?”
Now we are learning the answer.
Trump “has taken the precedent of expanded presidential power in new directions,” Edelson said.
Bush 43 and Obama “broke free of limits on power to advance what they saw as national security goals,” Edelson said. But by using the office for such things as undermining special counsel Robert Mueller’s investigation, challenging the press’s right to disagree with him, and personally enriching himself in office, Trump has done something different.
In a way Bush 41 could never have gotten away with, Trump has used the extraordinary power of the presidency to advance his personal goals and pursue a radically authoritarian agenda.
History shows that no American president has voluntarily relinquished power seized by his predecessor. The question then is whether Congress and the courts will force Trump — or his successor — to do so.
