There has never been a US president quite like Donald Trump. Will the precedents he sets now ultimately strengthen the power of the office, or weaken it? This question was among those posed at the March 29 event “Beyond Trump: Threats to the Presidency.” The day-long conference was hosted by the student chapter of the Federalist Society and the Classical Liberal Institute at NYU Law. During the event, panelists discussed judicial and congressional reactions to the Trump administration, as well as the potential, long-term effect of the administration’s decisions on the institution of the Presidency.
(Left to Right) Dean Trevor Morrison, Gillian Metzger, Michael McConnell, and Adam White
Michael Mukasey, who served as US Attorney General in the administration of President George W. Bush, discussed his experience in the executive branch in the day’s keynote address. He said he did not see Trump as having a permanent impact on the presidency.

“If we perceive now a dramatic change in the relationship between Congress and the president, I think it is far more personal than institutional,” Mukasey said. “I think that it is between Congress and this President, not Congress and the president.”

The country’s current political polarization has caused Republican and Democratic members of Congress to abandon traditional civility, Mukasey said. According to Mukasey, Democratic members of Congress are acting to resist the President by blocking the confirmation of candidates for important government positions, regardless of their qualifications, which impedes government functioning. Mukasey said that this dynamic appears to be the product of Trump-specific opposition, and is not a harbinger of continued high-level animosity between the parties.

The conference panels also discussed the difficulties of litigating the separation of powers, historical Congressional power, and foreign policy and national security.

During the “History of the Balance between the President and Congress” panel, Michael McConnell, Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School; Adam White, Adjunct Professor of Law at George Mason University’s Antonin Scalia Law School; and Gillian Metzger, Stanley H. Fuld Professor of Law at Columbia Law School spoke with Dean Trevor Morrison about the historical powers of Congress and the implications of impeachment.

“The Presidency is always a work in progress,” McConnell said. “But both George W. Bush and Barack Obama pushed the envelope of unilateral presidential power beyond where it had been before.” McConnell said that Trump’s predecessors had expanded presidential power through unchecked foreign policy overreach.

White said that he believes that the current executive branch is too strong and that an “unambitious Congress” has not proposed creative solutions to things like budget reformation and immigration policy.

Citing the Richard Nixon and Bill Clinton administrations, Morrison noted that controversial presidencies can result in a resurgence of Congressional action, like the post-Nixon passage of the Inspector General Act in 1978. The Act established inspector positions within the federal government to investigate fraud and required inspectors to report their activities to Congress every six months.

At the end of the discussion, Morrison posed the hypothetical: What if Democrats take control of the House of Representatives and begin the process of impeachment?

“Impeachment should not be a tool of undoing elections,” McConnell responded. “I believe that a substantial number of Americans would regard impeaching Donald Trump as a coup d’état, rather than an exercise in constitutional restraint. This is a peril to the Republic like we have not seen in a very long time.”

Posted April 16, 2018