Posted by: Travis Patch, Matt Paulbeck, Christina Price, Andrea Prigmore, Kunal Patel, Martin Presley, Jennifer Piatt, and Lauren Podgorski
As we approach the 2016 Presidential Election, many candidates are making promises about what they will do if elected into office. One such promise was made in a political speech on December 11, 2015, where Donald J. Trump was endorsed by the New York Police Benevolent Association.
One of the first things I’d do, in terms of executive order, if I win will be to sign a strong, strong statement that will go out to the country, out to the world, that anybody killing a policeman, policewoman, police officer — anybody killing a police officer — death penalty. It’s going to happen, O.K.?
According to the National Review, an average of 150 police officers are killed each year in the U.S. Put another way, that is one every fifty-eight hours. Trump intends this punishment to serve as a deterrent. However, can Trump fulfill his promise? Likely not!
First, we must look at the relationship between the executive and legislative branches and how this relationship limits the scope of executive orders. Next, we contemplate methods through which either the legislative or judicial branch could intervene, should an overreaching executive order be issued. Finally, we discuss separation of powers and examine the actual scope of executive orders in various states of Congressional action/inaction.
Political rhetoric has been used by many candidates ranging from a City council member to the President of the United States. This technique is not new. Over the centuries, many political parties have used this tactic. The public should be weary when listening to presidential debates. You may never know what is plausible unless you do your own research!
Could a President Really Do This?!
Misconceptions about the parameters and the authority behind executive orders run rampant in contemporary America. This fuzzy debate of what is and isn’t an appropriate measure of presidential power seems to focus primarily on the powers of the President himself, instead of his relationship with Congress. The source of presidential power in the Constitution is vague and open for interpretation. In his campaign for the presidency, Trump follows the example of many past Presidents and presidential hopefuls before him in misconstruing Article II, Section 1 of the Constitution to be an independent grant of power to act. In reality, the nature of the executive power is limited to enforcing or carrying out the acts or decisions made by another branch of government.
Often, a President cites justification for his actions in: the Commander and Chief Power, the executive power, and the Take Care Clause. Immediately, there is concern about using these sources as justification. First, the Commander and Chief Power is one shared by Congress, shown through their ability to declare war, to raise and support armies, and to provide for a Navy. Now, this does not mean that the President does not have power as the Commander and Chief, rather, it means that his power is not exclusive. He must share his authority with another branch, therefore limiting his power to act unilaterally. Second, the President’s authority under the Executive Power Clause (“The executive Power shall be vested in the President…”) is likely limited to expressed powers in the Constitution- it is not an unlimited grant of power. This is evident because the first clauses of Article I (“All Legislative Powers herein granted shall be vested…”) and Article III (“The judicial Power of the United States, shall be vested…”) lay out the limited, enumerated powers of those government branches. The relevant clauses of Article I, II, and III are worded exactly the same. Thus, when analyzing the construction of the Constitution, it is reasonable to infer that the clauses outline their powers in similar ways. Finally, the Take Care Clause is not an independent grant of authority for the President because the source of that power is contingent on an act of Congress. The President has the ability to take care that the laws are faithfully executed, but nowhere in that sentiment is the implication that he has the authority to create law.
We see an example of the limitations of the executive branch when the Supreme Court, in Medellin v. Texas, struck down President George W. Bush’s executive order, requiring Texas courts to reconsider a death penalty case pursuant to the Vienna Convention. The Court was not swayed by the President’s argument that it was within this power under the Take Care Clause to execute such an order. Instead, the Court held that an international treaty, such as the Vienna Convention, is not binding unless Congress has enacted laws to enforce it. Justice Roberts noted that President Bush’s motivations, primarily insuring reciprocal observance of the treaty by foreign governments and maintaining international relations, were compelling, but were ultimately secondary to the fact that the treaty was not self-executing. Essentially, the Court concluded that the President did not have the authority to unilaterally make domestic law; he must only act to enforce law.
If Trump is elected to be President, he is going to face a similar hurdle in attempting to enact an executive order mandating automatic death sentences for individuals who kill police officers. Such an order would be an attempt to unilaterally pass domestic law—an exercise of power that the Supreme Court has already determined to be outside the realm of executive power. However, Trump may very well have an even larger hurdle than President Bush. Bush’s executive order to reconsider death penalty cases was in pursuit of compliance with the Vienna Convention, an international treaty. As noted above, the Court did concede that President Bush’s motivations were compelling. Though the Court concluded that the Legislature must act in order to make an international agreement enforceable, it is well within the power of the Executive to negotiate treaties with foreign nations and it would have been within Congress’s power to act to enforce such international treaties. Trump’s suggested executive order is distinguishable from President Bush’s. Trump is advocating an order that could effectively establish law of a wholly domestic nature unilaterally. Enacting crime and punishment law has typically been reserved for the states, and it might be well beyond the scope of the Federal Government’s power.
Rather than analyzing executive orders in the light of what the President can enforce through the authority of the executive branch, we need to focus on the dynamic and tumultuous relationship between the Executive and the Legislature. The best place to start for this endeavor is Justice Jackson’s concurring opinion in Youngstown Sheet & Tube v. Sawyer. Jackson created three factual and contextual categories about a president’s authority in relation to Congress. They go as follows:
1) A President can act pursuant to Congressional delegation or statute. This would give him full authority to pass an executive order backed with the power of Congress and the power of the Executive.
2) When there is Congressional silence on the issue, the President can act according to his constitutional authority and may have power in situations where Congress has concurrent authority. However, when the President acts pursuant to a shared power of Congress, the Supreme Court will weigh factors such as the history of Congressional silence, inertia, or acquiescence on the issue.
3) When the President acts contrary to the acts of Congress his power is weakest. Here, the President will only prevail if he has exclusive authority over the issue, which, as shown above, is quite limited. Examples of independent presidential powers include the pardon power and filling vacancies in the senate during a recess.
With this context in mind, we can more aptly understand why Trump’s executive order is bound to fail. Because it is unlikely that Congress can pass a law allowing the President to implement an indiscriminate death penalty, we can set aside Jackson’s first conceptual category. This leaves us two scenarios: one where Congress is silent on the issue, and another where Congress has enacted a law making it illegal to implement an indiscriminate death penalty. Let’s take them in turn…
Where Congress is Silent on the Issue: If Congress were silent on the issue, it would give Trump authority to act pursuant to his exclusive presidential power, and perhaps any concurrent power he shares with Congress. There is no exclusive constitutional power that allows Trump to enact an executive order which calls for the death of anyone who kills a police officer. The only thing that gets even close to that power would be the Commander and Chief Power, but this fails for many reasons: this is not a situation of war, Congress has concurrent authority over this area, and there are contrary constitutional safeguards such as Due Process. Now, turning to areas of concurrent authority, Trump is still unable to implement this indiscriminate death penalty because Congress does not have the ability to implement a law that would allow this either. Due Process of Law likely would protect against a predetermined fate prior to a trial by jury. Furthermore, if we assume that Congress has not acquiesced on the issue, Trump would lack all authority in the Commander and Chief Power.
Where Congress has Enacted Contrary Law: In Jackson’s third category, it becomes abundantly clear that Trump lacks all authority to act. If Congress were to pass a law protecting the people of the United States from an indiscriminate death penalty, Trump would have to act pursuant to exclusive constitutional authority. This leaves Trump with a thin source of power, and this vestige will not provide him the tools to enforce his will over the decision of Congress on this topic. Unfortunately, Trump will have to afford his new constituents their Due Process rights.
In short, looking at the executive power as an independent subject of analysis sheds a glaring light on the shortcomings of Trump’s executive order. It is likely that Trump shares the same conception as many Americans in assuming the President acts isolated from the other branches of the government. However, the Presidential Executive Order cannot be viewed in a vacuum.
Could Congress Prevent This from Happening?
Congress, under Section 5 of the 14th Amendment, may enact laws to prevent or remedy violations of rights protected under the second sentence of Section 1 of the 14th Amendment. This sentence of §1 reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; . . . .” Whatever legislation Congress creates to enforce §1 must be congruent and proportional to the violations it aims to prevent and to the means chosen to reach this end. In a situation where Trump does enact his plan, and the states implement such a sentencing scheme, Congress could attempt to create legislation that bans the use of a mandatory death penalty, in order to protect the people’s Constitutional rights.
Congress would say their legislation protects the right given by the 8th Amendment that prevents “cruel and unusual punishment.” But do the rights granted by the 8th Amendment apply to state governments? In Roberts v. California, the Court held the cruel and unusual punishment clause of the 8th Amendment was applicable to the states through the 14th Amendment’s due process clause, meaning the states must protect the rights granted by the 8th Amendment. Thus, if Congress were to find the states implemented a cruel and unusual criminal punishment scheme, they could take steps to protect the rights given by the 8th Amendment.
If Congress did create such legislation though they would have to show a mandatory death penalty is considered a violation of the 8th Amendment and the due process clause of the 14th Amendment. They can do so by looking to the Supreme Court’s definition of “cruel and unusual.” To determine if a punishment is cruel and unusual, the Court examines the punishment in relation to the offense committed, and compares the punishment to punishments given for the crime in other jurisdictions. Further, the Court believes the concept of cruel and unusual punishment draws its meaning from the “evolving standards of decency that mark the progress of a maturing society.”
Trump’s proposition surely meets the standards given by the Court for cruel and unusual. There is no jurisdiction in the United States that allows a mandatory death penalty. The binary system suggested by Trump is similar to North Carolina’s mandatory death penalty statute for first-degree murder at issue in Woodson v. North Carolina. The Court felt modern society disapproved of such plans noting the “reaction of jurors and legislators to the harshness of those provisions has led to the replacement of automatic death penalty statutes with discretionary jury sentencing.” An automatic death penalty confounds jury’s discretion by forcing them to pronounce the defendant not guilty simply because they may feel death is too harsh of a punishment. With no other sentencing options, the jury could find an obviously guilty defendant “not guilty”: in order to avoid a sentence that they believe does not fit the crime. The Court in Roberts v. Louisiana supported this theory stating that narrowing the scope of the capital offense, as Louisiana did, goes against society’s belief that “every offense in a like legal category calls for an identical punishment . . . .” Trump’s plan would be cruel based on the difficult limits on jury discretion it creates and the general belief that crimes of the same category and degree must share the same punishment standards.
Considering that the cruel and unusual punishment clause does apply to the states, and the Court’s protection against arbitrary punishment, Congress would have the power to enact legislation to prevent Trump’s plan. Such a plan would be congruent and proportional to the 8th Amendment right protecting citizens from cruel and unusual punishment based on the Court’s decision that mandatory death penalty statutes are unconstitutional. By enacting such legislation Congress would force Trump’s executive order power to its weakest level; he would be acting directly against the express will of Congress.
A Look at the Separation of Powers
What happens if Congress does use the 14th Amendment to step into the death penalty debate? Essentially, potential President Trump in this situation would be violating the separation of powers doctrine if he went through with his executive order. This is because only Congress can legislate – Sorry, Trump!
The separation of powers doctrine has shaped American government since the nation’s birth. In Federalist 47, James Madison wrote, “The accumulation of all power, legislative, executive, and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.” Obviously, Madison and other Americans wanted to get away from tyrannical government, because they had just declared independence from the English monarchy. However, Madison realized that the branches would not be able to monitor each other if they were completely separate, and he continued to explain that in Federalist 48. The branches would not be able to check each other without having some overlapping powers, so that they could step in to control the other branches’ actions. For example, the President can veto legislation by Congress, Congress can override this veto by a 2/3rds supermajority vote, and the Supreme Court can declare executive orders and laws unconstitutional.
In Youngstown, the Court held that for a presidential executive order to be constitutional, the order’s power would have to come from the Constitution or from an act of Congress. In this case, neither the Constitution nor any act of Congress would allow Trump to automatically sentence some criminals to death. First, none of the powers granted to the President in the Constitution would allow him to carry out this order. Article II, Section 2 of the Constitution states that the President is the Commander in Chief of the United States, he has the power to pardon and grant reprieves, to make treaties with the advice and consent of the Senate, to nominate officials, and to require his department heads to provide him with reports. Furthermore, under Article II, Section 3, the President has the power to ensure that the laws of the land are faithfully executed and to provide a State of the Union address to advise Congress on issues of importance, among other powers. Importantly, not one of these powers would allow Trump to legislate; that power lies with Congress alone. The President is responsible for carrying out the execution of the laws, but he does not write them.
Second, Congress also has not passed any legislation that would give Trump the power to back up his executive order. He therefore does not have power from the Constitution or from Congress in this area, and his actions would be unconstitutional according to the Supreme Court’s decision in Youngstown.
What happens if Trump becomes President and issues the executive order anyway? Presidents seem to be expanding executive power and getting away with it, because the other branches have not stepped in to stop them. There are two options for dealing with executive orders gone awry, and both are difficult checks to achieve. The first option is that Congress could pass legislation to override the executive order, but the President has veto power over legislation. Because Trump would probably use that power in this situation, Congress would most likely need to come up with a supermajority 2/3 vote in order to override his veto. The second option is that the Supreme Court could declare an executive order unconstitutional and override it in that way, but in order to do that, the Court would need a case.
It seems like a sane Congress would act pretty quickly to stop Trump from taking over their power. A supermajority vote definitely seems possible. However, if the public elects even a strong minority of Congressmen and women who support Trump, then Congress might not have the 2/3rds vote against him. So, although Congress would have the power to stop Trump in his tracks here, the members of Congress might choose not to. Sometimes, politically, members of Congress want the executive to be stronger than it constitutionally should be.
If Congress fails to stop Trump’s grubbing for more power, the Supreme Court would likely do it. However, the Court will not hear a case without standing; in essence, someone would need to have an actual stake in the controversy in order for the Court to hear the case. Such standing could come from a suspect convicted of killing a police officer who was then sentenced to death automatically under the power of the executive order. This person could come forward with a constitutional case against the President, but even then, the appeals process takes time. The entire process could take years. However, once the case reached the Court, if the Court decided to take it, the Court would likely make speedy work of smacking Trump’s hand away from the metaphorical cookie jar.
Ultimately, it is extremely unlikely that Trump will be able to follow through on his promise to mandate the death penalty for those who kill police officers. First, the three most common clauses cited by executives in defense of executive orders do not apply or are circumvented by shared power. The President’s power as Commander in Chief is clearly limited by several legislative powers. Additionally, the order Trump is proposing does not fall under high powers, which are not subject to judicial review. The Executive Power Clause does not apply as it is limited to powers which are expressed. Finally, the Take Care Clause does not justify Trump’s proposal, as it is limited to executing laws which have been passed through Congress. Second, the order would not be valid even if Congress was silent on the issue, let alone if they enact contrary legislation. If Congress was silent on the issue, the President would be able to act pursuant to his exclusive powers or pursuant to concurrent powers shared with Congress. However, it is unlikely that such an order would be valid even with concurrent powers, due to 8th and 14th amendment concerns. Accordingly, the proposed executive order would most certainly fail to fall under a power that is exclusive to the executive. Third, even if Trump were to follow through and issue such an executive order, there are measures through which it would be invalidated. The quickest measure would be for Congress to enact legislation which invalidates such an order. Congress would necessarily need a supermajority in order to do so, due to the President’s veto power, but bipartisan support is likely for such an unconstitutional order. The second measure would be for the Supreme Court to intervene. Of course, standing would be an issue for the second measure, but as demonstrated by Medellin and Woodson, there is precedent in invalidating such an order.
Sorry, Trump, it’s not going to happen.