tag:theconversation.com,2011:/id/topics/presidential-power-36002/articlesPresidential power – The Conversation2023-03-08T13:39:54Ztag:theconversation.com,2011:article/2011382023-03-08T13:39:54Z2023-03-08T13:39:54ZWhat are the limits of presidential power to forgive student loans? A constitutional law expert answers 5 questions<figure><img src="https://images.theconversation.com/files/513833/original/file-20230306-20-ae4d3i.jpg?ixlib=rb-1.1.0&rect=13%2C4%2C2982%2C1980&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The sculpture of U.S. presidents George Washington, Thomas Jefferson, Theodore Roosevelt and Abraham Lincoln towers over the Black Hills at Mount Rushmore, near Keystone, S.D.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-busts-of-u-s-presidents-george-washington-thomas-news-photo/1253897719?adppopup=true">Scott Olson/Getty Images News via Getty Images</a></span></figcaption></figure><p><a href="https://www.reuters.com/legal/us-supreme-court-scrutinizes-biden-college-student-debt-relief-2023-02-28/">There’s about US$430 billion on the line</a> for 40 million people in the Supreme Court’s upcoming decisions on student debt forgiveness. </p>
<p>But for President Joe Biden, the extent of the executive branch’s power is also at stake.</p>
<p>In August 2022, <a href="https://www.youtube.com/watch?v=bQhjSxMqt4M">Biden announced</a> that the <a href="https://content.govdelivery.com/accounts/USED/bulletins/32970c3">U.S. Department of Education would cancel</a> federal student loan debt for borrowers making less than $125,000 a year. The plan was designed to blunt the continuing financial hardships student loan borrowers suffered during the COVID-19 pandemic. </p>
<p>By executive action, the president determined the secretary of education would cancel $20,000 of debt for borrowers who were Pell Grant recipients and $10,000 for others through the 2003 <a href="https://www.congress.gov/bill/108th-congress/house-bill/1412">Higher Education Relief Opportunities for Students Act</a>, or HEROES Act. It empowers the federal government to change student loan programs in response to national emergencies.</p>
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<a href="https://images.theconversation.com/files/513840/original/file-20230306-17-g163m8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A gray haired man in a royal blue suit jacket with a royal blue and yellow tie, speaks from behind a lectern. A gray bearded, bespectacled man, wearing a black suit and cobalt blue tie, stands behind him and to the left." src="https://images.theconversation.com/files/513840/original/file-20230306-17-g163m8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/513840/original/file-20230306-17-g163m8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/513840/original/file-20230306-17-g163m8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/513840/original/file-20230306-17-g163m8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/513840/original/file-20230306-17-g163m8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/513840/original/file-20230306-17-g163m8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/513840/original/file-20230306-17-g163m8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">President Joe Biden and Secretary of Education Miguel Cardona explain student loan debt forgiveness to reporters in the Roosevelt Room of the White House on Aug. 24, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/august-24-2022-us-president-joe-biden-delivers-remarks-news-photo/1244703670?adppopup=true">Demetrius Freeman/The Washington Post via Getty Images</a></span>
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<p>But <a href="https://ballotpedia.org/Biden_v._Nebraska#Background">the state of Nebraska and six others challenged</a> the program in federal court, claiming in part that it’s an overreach that violates the separation of powers. A second lawsuit, <a href="https://ballotpedia.org/Department_of_Education_v._Brown#Background">this one brought by two students</a>, argued that the secretary of education did not have the authority to establish the plan and asked the federal court to set it aside. Both cases are now before the Supreme Court. </p>
<p>The Biden administration argues that none of the plaintiffs have suffered actual injuries and are not the proper parties to sue. But if the Supreme Court disagrees, it will then decide whether the administration followed the correct procedures in adopting the plan and whether executive power covers an expansive debt cancellation plan. The answers will rest on fundamental principles regarding how the Constitution <a href="https://constitution.congress.gov/browse/essay/intro.7-2/ALDE_00000031/">divides power</a> between Congress and the president.</p>
<p>The Conversation asked <a href="https://scholar.google.com/citations?hl=en&user=eVP-tTgAAAAJ">Derek W. Black, a legal scholar</a> who specializes in constitutional law and education, to describe executive power and its role in the legal battles over student debt forgiveness.</p>
<h2>1. What authority does the Constitution give the president and his administration?</h2>
<p>The Constitution divides power among the three branches of government to ensure none of them has too much. There is the <a href="https://www.whitehouse.gov/about-the-white-house/our-government/the-legislative-branch/">legislative branch</a>, made up of both houses of Congress; the <a href="https://www.whitehouse.gov/about-the-white-house/our-government/the-executive-branch/">executive branch</a>, composed of the president, vice president, the president’s cabinet and federal agencies, including the secretary of education and the Department of Education; and the <a href="https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-branch/">judicial branch</a>, which includes federal district courts, courts of appeal and the Supreme Court.</p>
<p>Congress enacts legislation, sets taxes, authorizes public expenditures and establishes substantive policies and rules.</p>
<p>The executive administers and enforces that legislation. In many instances, legislation also authorizes agencies to make certain lower-level policy decisions – either through regulations or executive action. </p>
<p>And the judicial branch determines whether the legislature or the executive breached constitutional or statutory rules in carrying out their duties, including whether they violated anyone’s rights or exceeded the scope of their authority.</p>
<h2>2. Can the president determine how government spends money?</h2>
<p>Only Congress can appropriate money. Congress passes appropriations bills each year that authorize a specific level of funding for federal projects and agencies. The Department of Education, for instance, receives a specific dollar amount every year to spend on all of its programs.</p>
<p>There’s no freewheeling authority for the executive branch to spend however much money it wants. There’s no provision in the Constitution for that. The president has no power to tax anyone, nor any power to spend money, except for the taxes and spending that Congress has authorized for the president and his various agencies.</p>
<p>With the student loan forgiveness program, the president wants the secretary of education to waive students’ debt and assume responsibility for paying off loans with money that Congress has not yet appropriated. </p>
<h2>3. Does the executive branch have the authority to forgive debt that students owe?</h2>
<p>Yes, but there are caveats. The president and other members of the executive branch, such as the secretary of education, can forgive debts only when Congress authorizes it. One 2007 law established the <a href="https://www.whitehouse.gov/publicserviceloanforgiveness/?utm_source=pslf.gov">Public Service Loan Forgiveness </a> program, which permits the secretary of education to forgive student loans after debt holders work in public service jobs for 10 years. The HEROES Act gives the secretary of education the power to waive or modify student loans during times of emergency.</p>
<p>The current cases do not call into question the public service program. Instead, they challenge the emergency program. </p>
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<a href="https://images.theconversation.com/files/513848/original/file-20230306-16-2ffom8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of nine young men and women stand in the evening rain, some hold umbrellas. Others wear hats or hoodies. Each of them holds a purple, pink, orange and yellow sign that reads: Student loan relief is legal." src="https://images.theconversation.com/files/513848/original/file-20230306-16-2ffom8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/513848/original/file-20230306-16-2ffom8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/513848/original/file-20230306-16-2ffom8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/513848/original/file-20230306-16-2ffom8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/513848/original/file-20230306-16-2ffom8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/513848/original/file-20230306-16-2ffom8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/513848/original/file-20230306-16-2ffom8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Supporters of the Biden administration’s student debt relief plan stand in the rain in front of the Supreme Court the evening before the court heard arguments about the plan’s constitutionality.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-rally-in-the-rain-to-show-support-for-the-biden-news-photo/1470083538?adppopup=true">Chip Somodevilla/Getty Images News via Getty Images</a></span>
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<h2>4. If the executive branch has the authority to forgive student debt, why are the plaintiffs suing?</h2>
<p>It is really about the scope and details of the secretary of education’s power, rather than a general question of whether he has power. </p>
<p>The problem is that Congress, in the emergency debt relief law, explicitly gives the secretary power to waive or modify student loans during times of emergency, but it does not specify a cap for the loan amounts the secretary may waive or modify. Nor does Congress set aside a chunk of money necessary to cover all the potential loans the secretary might modify or waive.</p>
<p>The question is whether Congress can give the executive branch what amounts to a blank check to spend on student loan forgiveness.</p>
<p>The <a href="https://www.c-span.org/video/?525448-1/supreme-court-hears-challenge-biden-administration-student-loan-debt-relief-program">administration argues</a> that because Congress didn’t place any limit on the secretary of education’s waiver and adjustment power, the secretary can adjust or cancel as many loans as he wants, and Congress has implicitly agreed to pick up the tab.</p>
<p>The <a href="https://www.c-span.org/video/?525448-1/supreme-court-hears-challenge-biden-administration-student-loan-debt-relief-program">plaintiffs</a> are saying that Congress didn’t intend to give the executive such wide power to adjust and waive student loans, because that would mean practically unlimited spending power for the executive branch. </p>
<h2>5. How has the Court’s approach to executive power changed over time?</h2>
<p>Executive <a href="https://www.ushistory.org/gov/7a.asp">power was relatively limited</a> until the 1940s. The Supreme Court rejected attempts by Congress to delegate power to the executive branch. </p>
<p>But in an increasingly complex world where good policy depends on expert analysis and evolving facts, Congress is ill-positioned to deal with some issues. Congress could know, for instance, that air pollution is bad, but determining exactly how much particulate in the air is too much – or, for that matter, which particulate is harmful – is beyond Congress’ capabilities.</p>
<p>So, <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10745">Congress began delegating important policy questions</a> to the executive branch. Over the past century, the Supreme Court has largely permitted that delegation. </p>
<p>But the current Supreme Court is concerned about <a href="https://www.smithsonianmag.com/history/power-and-the-presidency-from-kennedy-to-obama-75335897/">increasingly expansive executive power</a> that upsets the balance of power between Congress and the president. This Supreme Court often requires very specific statutory support when the executive branch takes sweeping action on issues of major significance – what legal scholars call the <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10745#:%7E:text=Overview%20of%20the%20Major%20Questions%20Doctrine,-Agencies%20must%20often&text=If%20an%20agency%20acts%20based,agency%20has%20exceeded%20its%20authority">major questions doctrine</a>. The Supreme Court will not, as Justice Antonin Scalia wrote in 2001, uphold broad executive power based on “vague terms or ancillary” statutory text because Congress “<a href="https://www.law.cornell.edu/supct/pdf/99-1257P.ZO">does not … hide elephants in mouseholes</a>.”</p>
<p>This doctrine, of course, lies at the center of the student debt relief cases, with the Biden administration emphasizing that the law specifically grants the secretary of education power to waive and modify loans. The challengers argue that the administration is trying to pull an elephant out of a mouse hole, because Congress never imagined debt relief of this scope or under these circumstances.</p><img src="https://counter.theconversation.com/content/201138/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I have no current affiliations to disclose. I did, however, volunteer with the Obama-Biden Presidential Transition Team in 2008.</span></em></p>The Supreme Court is considering the legality of the Biden administration’s student loan forgiveness plan and whether the administration had the power to offer debt forgiveness in the first place.Derek W. Black, Professor of Law, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1873482022-07-21T12:24:47Z2022-07-21T12:24:47ZBiden announces new climate change actions but holds an emergency declaration in reserve<figure><img src="https://images.theconversation.com/files/475256/original/file-20220720-24-bqv1d9.jpg?ixlib=rb-1.1.0&rect=50%2C0%2C5568%2C3700&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Joe Biden speaks about climate change at Brayton Point in Somerset, Mass., on July 20, 2022.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joe-biden-addresses-the-crowd-and-gathered-media-news-photo/1242019289">Joseph Prezioso/Anadolu Agency via Getty Images</a></span></figcaption></figure><p>On July 20, 2022, President Joe Biden traveled to a former coal-burning power plant in Massachusetts that is being converted into a manufacturing site for offshore wind power equipment. Biden announced millions of dollars in funding for climate change measures, including upgrading infrastructure, weatherizing buildings and installing cooling in homes. He also touted job growth from clean energy production and pledged to use all of his executive power to reduce U.S. greenhouse gas emissions.</p>
<p>But Biden did not declare a national climate emergency – a step that some <a href="https://www.markey.senate.gov/news/press-releases/markey-merkley-sanders-colleagues-sound-alarm-climate-emergency-declaration-from-president-biden">Democratic officials</a> and <a href="https://www.foxnews.com/politics/activists-march-through-dc-demanding-biden-declare-a-climate-emergency">activists</a> have urged after Democratic Sen. Joe Manchin seemingly <a href="https://www.cnbc.com/2022/07/15/manchin-balks-at-climate-and-tax-pieces-of-biden-agenda-bill-but-backs-health-care-provisions.html">blocked legislative action</a> and the Supreme Court <a href="https://theconversation.com/the-supreme-court-has-curtailed-epas-power-to-regulate-carbon-pollution-and-sent-a-warning-to-other-regulators-185281">limited the Environmental Protection Agency’s power</a> to regulate greenhouse gas emissions.</p>
<p>According to White House officials, an emergency declaration <a href="https://www.washingtonpost.com/climate-environment/2022/07/18/biden-climate-emergency-manchin/">remains an option</a>. As a legal scholar who has analyzed <a href="https://www.ucpress.edu/book/9780520343948/contested-ground">the limits of presidential power</a>, I believe that declaring climate change to be a national emergency could have benefits, but also poses risks.</p>
<p>Taking that route sets an important precedent. If presidents increasingly make free use of emergency powers to achieve policy goals, this approach could become the new normal – with a serious potential for abuse of power and ill-considered decisions.</p>
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<figcaption><span class="caption">President Joe Biden has proposed sweeping action to slow climate change, but has failed to muster majority support in the closely divided Senate.</span></figcaption>
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<h2>Yesterday, the border; today, the climate</h2>
<p>President Donald Trump <a href="https://www.nytimes.com/2019/02/15/us/politics/national-emergency-trump.html">declared a national emergency on border security</a> on Feb. 15, 2019, after Congress <a href="https://www.vox.com/policy-and-politics/2019/2/14/18224457/congress-border-security-deal">refused to fund</a> most of his US$5.7 billion request for border wall construction. As Trump’s intent became clear, Republican Sen. Marco Rubio <a href="https://www.vox.com/policy-and-politics/2019/1/11/18178438/national-emergency-marco-rubio-precedent-democrats-climate">warned</a> that “tomorrow the national security emergency might be, you know, climate change.” </p>
<p>Rubio was right to take this possibility seriously. In my view, declaring a climate emergency would probably be legal and would unlock provisions in many laws that authorize the president or subordinates to <a href="https://www.brennancenter.org/our-work/analysis-opinion/trumps-hidden-powers">take specific actions under a national emergency declaration</a>. </p>
<p>Like Trump, Biden might use the power to divert military construction funds to other projects, such as renewable energy projects for military bases. Biden could also use trade measures – for example, restricting imports from countries with high carbon emissions, or perhaps imposing a carbon fee on goods from those countries to level the playing field.</p>
<p>Another potential action would be ordering businesses to produce certain goods. The Trump administration used the Defense Production Act, a law dating from the 1950s, to <a href="https://www.nytimes.com/2020/02/28/us/politics/trump-coronavirus.html?action=click&module=Spotlight&pgtype=Homepage">expand production of medical supplies for treating coronavirus patients</a>. Biden has already used the law to accelerate domestic production of <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/06/fact-sheet-president-biden-takes-bold-executive-action-to-spur-domestic-clean-energy-manufacturing/">solar panel parts, insulation and other clean energy technologies</a>. </p>
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<span class="caption">President Donald Trump tours a section of the U.S.-Mexico border wall in Alamo, Texas, on Jan. 12, 2021.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-tours-a-section-of-the-border-wall-news-photo/1230552879">Mandel Ngan/AFP via Getty Images</a></span>
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<p>After declaring an emergency, Biden could provide loan guarantees to critical industries in order to help finance goals such as expanding renewable energy production. Oil and gas leases on federal lands and in federal waters contain clauses that allow the Interior Department to <a href="https://www.govinfo.gov/content/pkg/USCODE-1994-title43/pdf/USCODE-1994-title43-chap28-subchapIII_2-sec1341.pdf">suspend them during national emergencies</a>, though that seems unlikely in the immediate future given current gas prices. </p>
<p>Declaring a national emergency would also enable the president to limit oil exports to other countries – although this also appears unlikely given the war in Ukraine, which has <a href="https://markets.businessinsider.com/news/commodities/us-crude-oil-exports-europe-surpass-asia-russia-ukraine-sanctions-2022-7">increased European reliance on U.S. oil</a>. Biden also could limit U.S. financing for foreign coal projects.</p>
<h2>Would it be legal?</h2>
<p>Emergency powers are only available assuming climate change qualifies as an emergency. The law empowering presidents to declare national emergencies doesn’t define the term.</p>
<p>Among recent precedents, President Barack Obama <a href="https://obamawhitehouse.archives.gov/the-press-office/2015/04/01/executive-order-blocking-property-certain-persons-engaging-significant-m">declared a cybersecurity emergency</a>, and Trump declared that steel imports were <a href="https://www.vox.com/2018/3/1/17066838/white-house-trump-steel-tariffs">an urgent threat to national security</a>. </p>
<p>It’s not hard to make a case that climate change is an equally critical problem, especially with much of the world suffering through <a href="https://www.nytimes.com/2022/07/20/world/europe/uk-europe-heat-wave-fires.html">record-breaking heat waves and wildfires</a>. There’s also clear support for the idea that climate change is <a href="https://www.defense.gov/News/News-Stories/Article/Article/2582051/defense-secretary-calls-climate-change-an-existential-threat/">a major national security threat</a>. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1549759763281584128"}"></div></p>
<p>To date, courts have never overturned a presidential emergency declaration, and a climate emergency would probably not be an exception. Legal challenges to Trump’s border security declaration <a href="https://www.reuters.com/article/us-usa-immigration-court/u-s-appeals-court-stays-judges-ruling-blocking-military-funds-for-border-wall-idUSKBN1Z806H">failed</a>. </p>
<p>However, the Supreme Court’s recent decision in <a href="https://www.oyez.org/cases/2021/20-1530">West Virginia v. EPA</a> adds a wild card to the legal analysis. The court ruled that certain actions are so important that they <a href="https://www.govexec.com/management/2022/07/how-supreme-courts-epa-decision-will-upset-administrative-world/374557/">require extra clear authority from Congress</a>. How the Court would apply this doctrine in the context of the National Emergencies Act remains unclear.</p>
<h2>Frustration with gridlock</h2>
<p>Emergency actions can sometimes shortcut bureaucratic procedures and reduce the potential for litigation, compared to the normal cumbersome regulatory process. That makes them faster and more decisive. They also place responsibility squarely on the president, which increases political accountability. There’s no question of who to blame if you don’t like the border wall – or emergency climate actions. </p>
<p>Unlike legislation, an emergency action does not have to move through Congress. And compared with most federal regulations, there is less requirement for transparency or public comment, and less room for judicial oversight. </p>
<p>That can speed things up, but it also makes major mistakes more likely. The <a href="https://www.history.com/this-day-in-history/fdr-signs-executive-order-9066">internment of Japanese Americans</a> during World War II is a vivid example. </p>
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<a href="https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Cartoon of a giant hand looming over a city." src="https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=760&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=760&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=760&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=955&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=955&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=955&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">‘Iron-fisted Breach,’ a cartoon by Jerry Costello reacting to President Harry Truman’s effort to nationalize the U.S. steel industry through an emergency declaration, published in the Knickerbocker News (Albany, N.Y.), April 23, 1952.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/executive-power.html">Library of Congress</a>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
</figcaption>
</figure>
<p>In addition, once an emergency is declared, civil libertarians fear that a president could use emergency powers in laws that aren’t even related to that emergency. “Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to <a href="https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/">requisition any privately owned vessel at sea</a>,” wrote Elizabeth Goiten, director of the Brennan Center’s <a href="https://www.brennancenter.org/our-work/policy-solutions/liberty-national-security-election-agenda-candidates-activists-and">Liberty and National Security Program</a>.</p>
<p>Legislating is difficult and time-consuming. It requires the agreement of both houses of an increasingly polarized Congress. The filibuster rule requires 60 votes in the Senate for most legislation, and right now the Democrats don’t seem to be able to muster even the 50 votes they would need to take advantage of the “reconciliation” exception to this requirement. </p>
<p>But there are also real dangers to invoking emergency powers. Normalizing their use could make these expanded presidential powers hard to limit. </p>
<p>Congress can nullify emergency declarations by passing a resolution of disapproval, but this has proved ineffective in practice. For instance, despite bipartisan support, Congress <a href="https://www.politico.com/story/2019/09/25/senate-vote-national-emergency-border-wall-1510795">failed to muster veto-proof margins</a> for two resolutions overturning Trump’s border emergency, which the administration used to divert billions of dollars to wall construction.</p>
<p>As Justice Robert Jackson wrote in <a href="https://www.law.cornell.edu/supremecourt/text/343/579">Youngstown Sheet & Tube Company v. Sawyer</a> – a famous 1952 Supreme Court decision in which the court held that President Harry Truman did not have the constitutional authority to nationalize the U.S. steel industry during the Korean War – emergency powers “afford a ready pretext for usurpation,” and the potential for using those powers “can tend to kindle emergencies” to justify their use. </p>
<p>Unlike some observers, I still see room for making real progress through the normal regulatory process. In my view, it’s not time yet for Biden to break the glass and pull the red emergency lever.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/from-border-security-to-climate-change-national-emergency-declarations-raise-hard-questions-about-presidential-power-132501">article</a> originally published on March 9, 2020.</em></p><img src="https://counter.theconversation.com/content/187348/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Farber does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>President Joe Biden has pledged sweeping action on climate change but struggled to deliver it. A legal scholar explains why a national emergency declaration should be a last resort.Daniel Farber, Professor of Law, University of California, BerkeleyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1792652022-03-23T17:50:08Z2022-03-23T17:50:08ZThe legacy of the Euromaidan Revolution lives on in the Ukrainian-Russian war<figure><img src="https://images.theconversation.com/files/453649/original/file-20220322-23-n3gke1.jpg?ixlib=rb-1.1.0&rect=0%2C125%2C3100%2C1911&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Smoke and fireballs rise during clashes between protesters and police in central Kyiv, Ukraine on Jan. 25, 2014. The "Heavenly Hundred" is what Ukrainians in Kyiv call those who died during months of anti-government protests in 2013-14. </span> <span class="attribution"><span class="source">(AP Photo/Sergei Grits)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" src="https://narrations.ad-auris.com/widget/the-conversation-canada/the-legacy-of-the-euromaidan-revolution-lives-on-in-the-ukrainian-russian-war" width="100%" height="400"></iframe>
<blockquote>
<p><em>“Hello Dear Mark: the number of victims in Kyiv is growing every day (people are dying in the hospitals) and is already 100 … My family is OK. I just need to explain to my nearly 6 year old girl why people are flying to the sky forever and what ‘war’ means.”</em> </p>
</blockquote>
<p>Those words, sent from one of my former students in Ukraine, could have been written last week. In reality, they were sent eight years ago after the brutal suppression of protests by Ukraine’s last Russian-backed president, Viktor Yanukovych. </p>
<p>Known as the <a href="http://www.encyclopediaofukraine.com/display.asp?linkpath=pages%5CE%5CU%5CEuromaidanRevolution.htm">Euromaidan Revolution</a> (or “Revolution of Dignity”), the protests were sparked by Yanukovych’s refusal to sign the popular <a href="https://www.kmu.gov.ua/en/yevropejska-integraciya/ugoda-pro-asociacyu">European Union-Ukraine Association Agreement</a> and the <a href="https://trade.ec.europa.eu/access-to-markets/en/content/eu-ukraine-deep-and-comprehensive-free-trade-area">Deep and Comprehensive Trade Agreement</a>, both of which would have strengthened ties between Ukraine and the EU. Public anger against Yanukovych was so high after the bloodshed that he was <a href="https://www.bbc.com/news/world-europe-29761799">forced to leave the country</a>.</p>
<h2>Long road to democratic reform</h2>
<p>In the wake of the Euromaidan Revolution, Russian President Vladimir Putin realized there was unlikely to be another elected pro-Russian Ukranian president, leading him to <a href="https://www.aljazeera.com/opinions/2019/3/16/annexation-of-crimea-a-masterclass-in-political-manipulation">annex the Crimean peninsula</a> and incite <a href="https://abcnews.go.com/International/ukraine-separatist-regions-crux-russian-invasion/story?id=83084803">separatist violence in the Donbas region</a> in 2014.</p>
<p>The Euromaidan was a turning point for Ukraine’s institutions. <a href="https://www.refworld.org/pdfid/44a280124.pdf">The country’s 1996 constitution</a> featured a formally <a href="https://www.oxfordbibliographies.com/view/document/obo-9780199756223/obo-9780199756223-0271.xml">semi-presidential system</a> with loopholes for presidential influence. At that time, the country effectively had a presidential system under then-president Leonid Kuchma, who routinely engaged in <a href="https://doi.org/10.1353/jod.2005.0037">election fraud and harassed political opponents</a>. </p>
<p>Kuchma’s <a href="https://www.researchgate.net/publication/236704745_Kuchma's_Failed_Authoritarianism">drift toward authoritarianism</a> was eventually stopped by massive protests during the <a href="https://www.britannica.com/place/Ukraine/The-Orange-Revolution-and-the-Yushchenko-presidency">Orange Revolution of 2004</a>, but the constitutional amendments of that year limiting presidential power (in particular, giving parliament, instead of the president, the right to choose the prime minister) were reversed as soon as Yanukovych became president in 2010.</p>
<p>It was not until 2014 when the kind of constitutional reform needed to secure Ukraine’s long-term democratic consolidation, economic development and political stability started to happen with the election of President Petro Poroschenko. </p>
<figure class="align-right ">
<img alt="A man standing behind a podium" src="https://images.theconversation.com/files/453452/original/file-20220321-17-96wrm6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/453452/original/file-20220321-17-96wrm6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=754&fit=crop&dpr=1 600w, https://images.theconversation.com/files/453452/original/file-20220321-17-96wrm6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=754&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/453452/original/file-20220321-17-96wrm6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=754&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/453452/original/file-20220321-17-96wrm6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=948&fit=crop&dpr=1 754w, https://images.theconversation.com/files/453452/original/file-20220321-17-96wrm6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=948&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/453452/original/file-20220321-17-96wrm6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=948&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Ukrainian president Volodymyr Zelensky speaking to supporters during the presidential elections in Kyiv, Ukraine on April 21, 2019.</span>
<span class="attribution"><span class="source">(AP Photo/Vadim Ghirda)</span></span>
</figcaption>
</figure>
<p>Poroschenko came to power by tapping into the post-Euromaidan hope that <a href="https://www.theguardian.com/world/2014/may/25/petro-poroshenko-ukraine-president-wins-election">rampant corruption would be brought under control</a>. Yet this was belied by his own career as a billionaire oligarch <a href="https://www.theguardian.com/world/2022/jan/17/petro-poroshenko-former-ukraine-president-kyiv-treason-case">who has been accused of selling political influence</a>.</p>
<p><a href="https://eurasianet.org/a-brief-history-of-corruption-in-ukraine-the-poroshenko-era">Scandals during Poroschenko’s term as president</a> led to his defeat in 2019 by political novice Volodomyr Zelensky, who <a href="https://www.nbcnews.com/news/world/comedian-volodymyr-zelensky-leads-ukraine-s-presidential-vote-n989386">turned his lack of legislative experience into a political asset</a>.</p>
<h2>Presidential power</h2>
<p>The continuing lack of constitutional change in Ukraine is rooted in the <a href="https://repositories.lib.utexas.edu/handle/2152/28718">post-Soviet belief in strong presidents</a> — whether they were pro-Russian or pro-western — who could impose their will upon the legislatures, where opposition to reform was most concentrated. The ruling wisdom in Ukraine, as in most of Eastern Europe, was that presidents could more easily inflict short-term pain for long-term gain. </p>
<p>That is why, when I was a university instructor in Poland and Ukraine in the 1990s, I had a hard time selling the idea of Westminister-style parliamentary government to my students and academic colleagues. </p>
<p>Pointing primarily to published <a href="https://muse.jhu.edu/article/225694">studies of political instability among presidential regimes in Latin America and elsewhere</a>, I argued that parliamentary regimes were generally more conducive to power-sharing and <a href="https://www.annualreviews.org/doi/full/10.1146/annurev.polisci.3.1.509">consociational democracy</a>: the building of political alliances where all major segments of society are either proportionally represented in government or allowed local autonomy. </p>
<p>The bias against parliamentarism began to change with the <a href="http://www.encyclopediaofukraine.com/display.asp?linkpath=pages%5CO%5CR%5COrangeRevolution.htm">Orange Revolution</a>, a series of protests that took place after <a href="https://www.upi.com/Top_News/2004/11/29/Ukraine-high-court-reviews-election/55741101761292/">credible allegations of electoral fraud</a> were levelled against the pro-Russian government in 2004. </p>
<p>But for most Ukrainians, putting executive power in the hands of a parliamentary government was a non-starter. The legacy of communism and the corrupt reputation of the legislature <a href="https://www.wilsoncenter.org/sites/default/files/media/documents/publication/kennan_cable_30_-_rojansky_minakov.pdf">did not change with the replacement of old communists with new oligarchs</a>. </p>
<h2>Paving the way for Putin</h2>
<p>Nowhere was this perceived need for a strong presidency greater than in Russia. In 1992, the president of the Russian republic, Boris Yeltsin, made a <a href="http://news.bbc.co.uk/2/hi/europe/3161002.stm">unilateral declaration on Sept. 21, 1993, to dissolve the Congress of People’s Deputies and the Supreme Soviet</a>. </p>
<p>Although in flagrant violation of the existing constitution, it <a href="https://www.dw.com/en/russias-1993-crisis-still-shaping-kremlin-politics-25-years-on/a-45733546">received widespread support from western powers</a> — <a href="https://www.chicagotribune.com/news/ct-xpm-1993-10-04-9310040163-story.html">especially the United States</a>, which was focused on preserving market reforms. </p>
<figure class="align-center ">
<img alt="A man in a suit standing on top of a tank and holding a small stack of paper. He is surrounded by several other men in suits and there is a news camera pointed at him. Behind him is the Russian flag." src="https://images.theconversation.com/files/452579/original/file-20220316-8461-17k8gei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/452579/original/file-20220316-8461-17k8gei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=389&fit=crop&dpr=1 600w, https://images.theconversation.com/files/452579/original/file-20220316-8461-17k8gei.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=389&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/452579/original/file-20220316-8461-17k8gei.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=389&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/452579/original/file-20220316-8461-17k8gei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=489&fit=crop&dpr=1 754w, https://images.theconversation.com/files/452579/original/file-20220316-8461-17k8gei.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=489&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/452579/original/file-20220316-8461-17k8gei.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=489&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Boris Yeltsin, President of the Russian Federation, standing on a Russian tank in front of the Russian Parliament in defiance of the August 1991 Soviet coup attempt.</span>
<span class="attribution"><span class="source">(AP Photo)</span></span>
</figcaption>
</figure>
<p>Although Yeltsin’s new constitution <a href="https://www.wilsoncenter.org/blog-post/russias-broken-constitution">aspired to create a more democratic and law-based country</a>, it concentrated a significant amount of power in the hands of the president and <a href="https://www.google.ca/books/edition/Presidents_Oligarchs_and_Bureaucrats/3QftCwAAQBAJ?hl=en&gbpv=1&dq=Instead+of+a+responsible+cabinet,+an+apparatus+of+about+1,600+civil+servants&pg=PT104&printsec=frontcover">sowed the seeds for a future <em>de facto</em> dictatorship in the hands of his chosen successor, Vladimir Putin</a>.</p>
<p>In 2020, Putin easily avoided the requirement of a constitutional convention for fundamental changes by passing <a href="https://www.wilsoncenter.org/blog-post/russias-broken-constitution">200 amendments of his own</a> that, for example, recognized his authority to dismiss judges and placed the parliamentary executive “under the general leadership of the president.”</p>
<h2>Could things have been different?</h2>
<p>Given the <a href="https://euromaidanpress.com/2019/12/05/more-than-half-of-ukrainians-see-ukraines-future-in-eu-only-13-with-russia-poll/">growing support for European integration in most of Ukraine</a>, and the unacceptability of that result to the Kremlin, was the possibility of compromise between Ukraine and Russia always hopeless? Was the war inevitable? </p>
<p>Under a different constitution, Ukraine could have <a href="https://www.chathamhouse.org/sites/default/files/2019-09-24-UkraineDecentralization.pdf">ensured that Russian-speaking regions had both a greater measure of local autonomy and a stronger voice in the national parliament</a>. A head of government tasked with consensus-building in such a political environment might have been able to find a more realistic and less provocative path to a western future — one inside the EU, but still <a href="https://www.theglobeandmail.com/canada/article-evening-update-ukraine-must-accept-it-will-never-join-nato-president/">outside of NATO</a>. </p>
<p>A peaceful outcome would have also been more likely if Russia’s leader — legally restrained at home by a more independent judiciary, a freer press and an effective parliamentary opposition — had been forced to accept <a href="https://www.reuters.com/world/europe/what-are-minsk-agreements-ukraine-conflict-2021-12-06/">decentralization as the solution to the conflict in eastern Ukraine</a>, and to also accept the legitimacy of the EU-Ukraine Association Agreement.</p>
<p>But in both countries, a perceived need for enhanced presidential power inherited from the early days of post-communist transition had already reduced the likelihood of compromise, setting them both on a collision course.</p><img src="https://counter.theconversation.com/content/179265/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Crawford does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A need for enhanced presidential power, inherited from the early days of post-Communist transition, ruined any chances of compromise between Ukraine and Russia years ago.Mark Crawford, Associate Professor of Political Science, Athabasca UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1635282021-07-05T16:47:43Z2021-07-05T16:47:43ZAngola’s peculiar electoral system needs reforms. How it could be done<figure><img src="https://images.theconversation.com/files/409458/original/file-20210702-19-1om5u4r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People's Movement for the Liberation of Angola (MPLA) supporters at a campaign rally. The party has run the country since independence in 1975.</span> <span class="attribution"><span class="source">Photo by Osvaldo Silva / AFP) via Getty Images.</span></span></figcaption></figure><p>Angola has a unique electoral system. Its main <a href="https://www.africanews.com/2017/08/23/angola-electoral-system-how-parliamentary-seats-determines-the-president//">peculiarity</a> is that it involves voters electing the president, deputy president and members of parliament simultaneously with a single mark on a single ballot paper. </p>
<p>This has a negative impact on the quality of the country’s representative democracy. It prevents voters from voting differently for the president and members of parliament. And it reduces the ability of voters to hold elected representatives to account besides keeping them in office, or voting them out every five years. </p>
<p>Hence, the need for reform. </p>
<p>An alternative electoral system would have the following components. It should provide for the direct election of the president. And it should allow for the representation of Angolan communities abroad. In addition, seats in the legislature should be allocated through direct election of representatives from constituencies combined with compensatory seats for political parties in proportion to their overall outcome.</p>
<h2>How does the system work?</h2>
<p>Angola uses a <a href="https://www.idea.int/answer/ans1303551852622304">closed-list</a> proportional representation electoral system. Voters cast ballots for lists of candidates drawn up by political parties. Parties are then allocated seats in the legislature in proportion to the share of votes that they receive at the polls. </p>
<p>This electoral system is used widely elsewhere. Examples include South Africa and Portugal. </p>
<p>The specific variant used in Angola is outlined in the <a href="https://aceproject.org/ero-en/regions/africa/AO/constitution-of-the-republic-of-angola-2010/view">country’s current constitution</a>. It was approved in 2010 to replace the interim constitution, which had been in effect since 1992. </p>
<p>The constitution states that the individual occupying the top position on the list of the political party or coalition of parties that receives the majority vote is appointed president. The individual next on the same list becomes the deputy president.</p>
<p>The 220-member National Assembly is elected on a two-level constituency: 130 candidates from a single national constituency and 90 candidates from 18 provincial constituencies (five per province). The national assembly is unicameral.</p>
<h2>Advantages and weaknesses</h2>
<p>There are several <a href="https://aceproject.org/ace-en/topics/es/esd/esd02/esd02b">advantages</a> to the closed-list proportional representation system.</p>
<p>One is its simplicity. The design of ballot papers allows even illiterate voters to make effective choices. It is also fair in that political parties get seats according to the proportion of votes that they receive at the polls. </p>
<p>It also promotes inclusiveness. It ensures that political, gender, ethnic and other minorities are not excluded from the legislature.</p>
<p>But, as a <a href="https://aceproject.org/ace-en/topics/es/esd/esd02/esd02b">political scientist</a> and a student of <a href="https://theconversation.com/why-covid-19-cant-be-blamed-for-angolas-failure-to-have-local-governance-144685">Angolan politics</a>, I am of the view that the current system undermines voters’ ability to elect political representatives effectively.</p>
<p>Firstly, fusing executive and legislative elections prevents voters from splitting their votes for the presidency and parliament. This forces them to choose a president and a deputy president from the party with the majority in the national assembly. </p>
<p>Secondly, the electoral system prevents voters from electing the president directly. Yet Angola has a presidential system of government with an all-powerful presidency that exercises executive powers without effective checks and balances.</p>
<p>Here Angola deviates from the norm. In countries that adopt presidential systems of government, the executive does not get its legitimacy from the legislature. That is why it is elected directly by the voters.</p>
<p>Thirdly, voters cast ballots for party lists rather than individual candidates. This arrangement privileges political parties rather than individuals in the political process. This means that, once elected, representatives are not personally accountable to the electorate because they aren’t directly linked to any territorial constituency. Rather they are beholden to party leaders who hold the power to compile the party list. </p>
<p>This results in a massive accountability deficit in the political system.</p>
<p>In addition, the use of party lists bars independent candidates from standing for political office unless they are included in a party list that has been cleared to run in the elections. But giving effect to this is extremely difficult. Realpolitik prevents parties from choosing independent candidates at the expense of party members in good standing.</p>
<p>There is also the practical use of the two-level constituency – provincial and national – instead of a single national constituency. </p>
<p>The adoption of the 18 provincial constituencies, which goes back to 1992, is premised on the idea that all provinces need to be represented at the national assembly. But this does not make sense, as Angola is a unitary state, with a unicameral parliament. </p>
<p>Among Lusophone countries, which inherited this system from Portugal, Angola is the only country that introduced the national and provincial level constituency system.</p>
<p>There are no provincial legislatures and no functional or formal distinction between parliamentarians elected at the provincial level and those elected at the national level. They all represent the whole nation, and should all be be elected from a single national constituency.</p>
<h2>An alternative system</h2>
<p>The <a href="https://aceproject.org/ero-en/topics/electoral-systems/E6ElectoralSystemsHorowitz.pdf">broad</a> <a href="https://www.idea.int/sites/default/files/publications/chapters/electoral-system-design/electoral-system-design-the-new-international-idea-handbook-summary.pdf">literature</a> on electoral systems acknowledges that there is <a href="http://metisportals.ca/elec/wp-content/uploads/2009/02/choosing-electoral-systems.pdf">no single best electoral system</a>. </p>
<p>There are several types of electoral systems and each has advantages as well as disadvantages. </p>
<p>A system that best serves democracy in one country might not work in another country. Hence, the best electoral system for a country must be informed by its particular history, social cleavages and political realities. </p>
<p>In the case of Angola, this means breaking with the past to end the persistence of adverse practices. These include the unchecked executive power, concentration of state resources in the hands of a small politically connected elite, <a href="https://www.icij.org/investigations/luanda-leaks/">widespread corruption</a>, a culture of impunity in which those in authority get away without being punished, and a government that is not responsive to the needs of the population.</p>
<p>In my view, the best way to address these issues is reforming the current system. This would require a return to the direct election of the president by voters and the reinstatement of a constituency for the representation of Angolan communities abroad. This was <a href="https://publicofficialsfinancialdisclosure.worldbank.org/sites/fdl/files/assets/law-library-files/Angola_Constitutional%20Law_1992_en.pdf">stipulated</a> in the Constitutional Law of the Republic of Angola, an interim document revoked in 2010.</p>
<p>In addition, the 18 provincial-level constituencies should be scrapped. There is no practical reason for their existence. A constituency element should be added to ensure the direct election of deputies and compensatory seats introduced for the representation of political parties in proportion to their share of the votes. </p>
<p>The resulting mixed electoral system would promote accountability through the direct election of representatives from constituencies. It would also ensure the proportional representation of political parties.</p><img src="https://counter.theconversation.com/content/163528/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Albano Agostinho Troco receives funding from the National Research Foundation and the British Academy under the SA/UK Bilateral Chair in Political Theory.</span></em></p>Angola needs a mixed electoral system. This would promote accountability through the direct election of representatives from constituencies.Albano Agostinho Troco, NRF/British Academy Postdoctoral Research Fellow under the SA-UK Bilateral Chair in Political Theory, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1508962021-01-26T13:29:03Z2021-01-26T13:29:03ZWhat is an executive order, and why don’t presidents use them all the time?<figure><img src="https://images.theconversation.com/files/380026/original/file-20210121-13-hs8vow.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5446%2C3604&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Modern presidents, including Trump and Obama, have issued far fewer executive orders than their predecessors before World War II.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joe-biden-signs-a-series-of-orders-in-the-oval-news-photo/1230701851?adppopup=true">Jim Watson/AFP via Getty Images</a></span></figcaption></figure><p>Just hours after taking the oath of office, President Joe Biden signed <a href="https://www.nytimes.com/2021/01/20/us/biden-executive-orders.html">nine executive orders</a> – far surpassing every other president’s first day on the job in modern history. </p>
<p>These orders advance urgent issues like COVID-19 response and undo many of Trump’s policies on immigration and environmental deregulation. </p>
<p>Biden is not the first U.S. president to issue an executive order, and he certainly won’t be the last. <a href="https://doi.org/10.1111/ajps.12190">My own research</a> shows executive orders have been a mainstay in American politics – with limitations. </p>
<h2>What is an executive order?</h2>
<p>Though the Constitution plainly articulates familiar presidential tools like vetoes and appointments, the real executive power comes from reading between the lines. </p>
<p>Presidents have long interpreted the Constitution’s <a href="https://www.law.cornell.edu/constitution/articleii">Article 2 clauses</a> – like “the executive power shall be vested in a President” and “he shall take care that the laws be faithfully executed” – to give them total authority to enforce the law through the executive branch, by any means necessary. </p>
<p>One leading way they do that is through executive orders, which are presidential written directives to agencies on how to implement the law. The courts view them as legally valid unless they violate the Constitution or existing statutes. </p>
<p>Executive orders, like other unilateral actions, allow presidents to make policy outside of the regular lawmaking process.</p>
<p>This leaves Congress, notoriously polarized and gridlocked, to respond.</p>
<p>Thus, executive orders are unilateral actions that give presidents several advantages, allowing them to <a href="https://doi.org/10.1111/j.1741-5705.2005.00258.x">move first and act alone</a> in policymaking.</p>
<h2>How have they historically been used?</h2>
<p>Every U.S. president has issued executive orders since they were first systematically cataloged in 1905. </p>
<p>In March of 2016, then-presidential candidate <a href="https://thehill.com/policy/energy-environment/331134-trump-using-executive-orders-at-unprecedented-pace">Donald Trump criticized</a> President Obama’s use of executive orders. </p>
<p>“Executive orders sort of came about more recently. Nobody ever heard of an executive order. Then all of a sudden Obama – because he couldn’t get anybody to agree with him – he starts signing them like they’re butter,” <a href="https://thehill.com/policy/energy-environment/331134-trump-using-executive-orders-at-unprecedented-pace">Trump said</a>. “So I want to do away with executive orders for the most part.” </p>
<p>Little in this statement is true. </p>
<p>Obama signed fewer orders than his predecessors – averaging <a href="https://www.presidency.ucsb.edu/statistics/data/executive-orders#eotable">35 per year.
Trump issued an average of 55 per year.</a> </p>
<p>Against conventional wisdom, presidents have relied less on executive orders over time. Indeed, modern presidents used drastically fewer orders per year – an average of 59 – than their pre-World War II counterparts, who averaged 314. </p>
<p>Executive orders have been used for everything from routine <a href="https://www.presidency.ucsb.edu/documents/executive-order-13490-ethics-commitments-executive-branch-personnel">federal workplace policies</a> like ethics pledges to the controversial <a href="https://www.presidency.ucsb.edu/documents/executive-order-13769-protecting-the-nation-from-foreign-terrorist-entry-into-the-united">2017 travel ban</a> restricting entry into the United States. </p>
<p>They have been used to <a href="https://millercenter.org/issues-policy/us-domestic-policy/making-teapot-dome-scandal-relevant-again">manage public lands</a>, <a href="https://www.presidency.ucsb.edu/documents/executive-order-11615-providing-for-stabilization-prices-rents-wages-and-salaries">the economy</a>, <a href="https://www.presidency.ucsb.edu/documents/executive-order-11246-equal-employment-opportunity">the civil service and federal contractors</a>, and to respond to various crises such as <a href="https://www.presidency.ucsb.edu/documents/executive-order-12283-united-states-iran-agreement-release-the-american-hostages">the Iran hostage situation</a> and <a href="https://www.presidency.ucsb.edu/documents/executive-order-organizing-and-mobilizing-the-united-states-government-provide-unified-and">the COVID-19 pandemic</a>. </p>
<p>Presidents often use them to advance their biggest agenda items, by <a href="https://www.presidency.ucsb.edu/documents/executive-order-13507-establishment-the-white-house-office-health-reform">creating task forces or policy initiatives</a> and <a href="https://www.presidency.ucsb.edu/documents/executive-order-13771-reducing-regulation-and-controlling-regulatory-costs">directing rulemaking</a>, the process for formally translating laws into codified policy. </p>
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<h2>Limitations in their use</h2>
<p>Why don’t presidents always issue executive orders, a seemingly powerful policy device? Because they come with serious constraints. </p>
<p>First, executive orders may not be as unilateral as they seem. Drafting an order involves a time-consuming <a href="https://doi.org/10.1111/j.1741-5705.2012.03945.x">bargaining process</a> with various agencies negotiating its content. </p>
<p>Second, if they are issued without proper legal authority, executive orders can be overturned by the courts – although that <a href="https://www.fjc.gov/history/administration/judicial-review-executive-orders">happens infrequently</a>.</p>
<p>Trump’s travel ban faced several legal challenges before it was written in a way to <a href="https://www.oyez.org/cases/2017/17-965">satisfy the court</a>. Many of his initial orders, on the other hand, didn’t face legal scrutiny because they simply requested agencies to work <a href="https://www.presidency.ucsb.edu/documents/executive-order-13765-minimizing-the-economic-burden-the-patient-protection-and-affordable">within their existing authority</a> to change important policies like health care and immigration. </p>
<p>Congress is another barrier, as they give presidents the legal authority to make policy in a certain area. By withholding that authority, Congress can deter presidents from issuing executive orders on certain issues. If the president issues the order anyway, the courts can overturn it.</p>
<p>Legislators can also punish presidents for issuing executive orders they do not like by sabotaging their legislative agendas and nominees or defunding their programs. </p>
<p>Even a polarized Congress can find ways to sanction a president for an executive order they don’t like. For example, a committee can hold an oversight hearing or launch an investigation – both of which can <a href="https://press.princeton.edu/books/hardcover/9780691171852/investigating-the-president">decrease a president’s public approval rating</a>.</p>
<p>Congresses of today are equipped to impose these constraints and they do so more often on ideologically opposed administrations. This is why scholars find modern presidents issue <a href="https://doi.org/10.1111/ajps.12190">fewer executive orders under divided government</a>, contrary to <a href="https://www.nytimes.com/2012/04/23/us/politics/shift-on-executive-powers-let-obama-bypass-congress.html?_r=0">popular media narratives</a> that present executive orders as a president’s way of circumventing Congress. </p>
<p>Finally, executive orders are not the last word in policy. They can be easily revoked. </p>
<p>New presidents often reverse previous orders, particularly those of political opponents. Biden, for instance, quickly <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-ensuring-a-lawful-and-accurate-enumeration-and-apportionment-pursuant-to-decennial-census/">revoked Trump’s directives</a> that excluded undocumented immigrants from the U.S. Census.</p>
<p>All recent presidents have issued revocations, especially in their first year. They <a href="https://doi.org/10.1111/ajps.12294">face barriers</a> in doing so, however, including public opinion, Congress and legal limitations. </p>
<p>Regardless, executive orders are <a href="https://doi.org/10.1111/psq.12473">not as durable</a> as laws or regulations. </p>
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<h2>The future of executive orders</h2>
<p>What will change for executive orders in a post-Trump era? I wouldn’t expect much. </p>
<p><a href="https://www.nytimes.com/2020/11/08/us/politics/biden-trump-executive-action.html">As he promised</a>, Biden has already revoked numerous Trump executive orders and issued new ones on some big agenda items. He’ll likely <a href="https://www.vox.com/21557717/joe-biden-executive-order-student-debt-climate">issue more</a>: for example, to tackle racial injustice and student debt.</p>
<p>Other policies, like an economic stimulus, will require legislation since Congress holds the purse strings. </p>
<p>Though Biden inherits a Democratic House and Senate, their majorities are marginal, and moderate party dissenters may frustrate his agenda. Even so, he will undoubtedly use all available legal authority to unilaterally transform his goals into government policy. </p>
<p>But then again, these directives may be undone by the next president with the stroke of a pen.</p>
<p>[<em>The Conversation’s Politics + Society editors pick need-to-know stories.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-need-to-know">Sign up for Politics Weekly</a>.]</p><img src="https://counter.theconversation.com/content/150896/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sharece Thrower does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Executive orders aren’t as unilateral as they seem. Here’s how government keeps them in check.Sharece Thrower, Assistant Professor of Political Science, Vanderbilt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1325012020-03-09T12:22:10Z2020-03-09T12:22:10ZFrom border security to climate change, national emergency declarations raise hard questions about presidential power<figure><img src="https://images.theconversation.com/files/319139/original/file-20200306-118913-cc1l7d.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4031%2C3024&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Global Climate Strike NYC in New York, Sept. 20, 2019.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Global-Climate-Strike-And-Rally/fdf71056a5d34c308e0aca3f639fbd44/90/0">Rainmaker Photo/MediaPunch /IPX via AP Photo</a></span></figcaption></figure><p>As wildfires, storms and other climate-driven disasters grow larger and more damaging, climate change is a <a href="https://www.youtube.com/watch?v=1kIUyCczgf8">major concern for many Democratic voters</a>, who are in the midst of a primary fight that has come down to two major candidates: Bernie Sanders and Joe Biden. Both candidates say climate change would be one of their top priorities as president – but there’s an important difference between their approaches.</p>
<p>Sanders has pledged to <a href="https://berniesanders.com/issues/green-new-deal/">declare climate change a national emergency</a> and use executive power to lead “<a href="https://berniesanders.com/issues/green-new-deal/">a ten-year, nationwide mobilization</a>” to remake the U.S. economy. </p>
<p>Biden has also proposed an ambitious plan for <a href="https://joebiden.com/Climate/">“achieving a 100% clean energy economy</a>,” but would rely on legislation and regulation to achieve many of his goals.</p>
<p>As a legal scholar <a href="https://scholar.google.com/citations?user=SHAqMV0AAAAJ&hl=en">specializing in energy and the environment</a>, I believe that voters should consider this distinction carefully. </p>
<p>Presidential emergency powers could provide useful tools for addressing climate change, but taking this route sets an important precedent. As I see it, if presidents increasingly make free use of emergency powers to achieve policy goals, this approach could become the new normal – with a serious potential for abuse of power and ill-considered decisions.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/T_cvymQ_Z1o?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">President Trump declared a national emergency on border security in 2019 in order to redirect funds from other programs to wall construction.</span></figcaption>
</figure>
<h2>Today, the border; tomorrow, the climate</h2>
<p>President Trump <a href="https://www.whitehouse.gov/presidential-actions/presidential-proclamation-declaring-national-emergency-concerning-southern-border-united-states/">declared a national emergency on border security</a> on Feb. 15, 2019, after Congress <a href="https://www.vox.com/policy-and-politics/2019/2/14/18224457/congress-border-security-deal">refused to fund</a> most of his US$5.7 billion request for border wall construction. As Trump’s intent became clear, Republican Sen. Marco Rubio <a href="https://www.vox.com/policy-and-politics/2019/1/11/18178438/national-emergency-marco-rubio-precedent-democrats-climate">warned</a> that “tomorrow the national security emergency might be, you know, climate change.” </p>
<p>Rubio was right to take this possibility seriously. In my view, declaring a climate emergency would probably be legal, and would unlock provisions in many laws that authorize the president or subordinates to <a href="https://www.brennancenter.org/our-work/analysis-opinion/trumps-hidden-powers">take specific actions under a national emergency declaration</a>. </p>
<p>Like Trump, a Democratic president might use the power to divert military construction funds to other projects, such as renewable energy projects for military bases. A Democrat could also use trade measures – for example, restricting imports from countries with high carbon emissions, or imposing a carbon fee on goods from those countries to level the playing field.</p>
<p>Another potential action would be ordering businesses to produce certain goods. Just as the Trump administration reportedly has considered using a law dating from the 1950s to <a href="https://www.nytimes.com/2020/02/28/us/politics/trump-coronavirus.html?action=click&module=Spotlight&pgtype=Homepage">expand production of medical supplies for treating coronavirus patients</a>, a Democrat could use the same power to boost battery or electrical vehicle production. </p>
<p>After declaring an emergency, the president could provide loan guarantees to critical industries in order to help finance goals such as expanding renewable energy production. Oil and gas leases on federal lands and in federal waters contain clauses that allow the Interior Department to <a href="https://www.govinfo.gov/content/pkg/USCODE-1994-title43/pdf/USCODE-1994-title43-chap28-subchapIII_2-sec1341.pdf">suspend them during national emergencies</a>. Declaring a national emergency would also enable the president to limit U.S. oil exports to other countries.</p>
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<h2>Is it legal?</h2>
<p>Emergency powers are only available assuming climate change qualifies as an emergency. The law empowering presidents to declare national emergencies doesn’t define the term.</p>
<p>Among recent precedents, President Obama <a href="https://obamawhitehouse.archives.gov/the-press-office/2015/04/01/executive-order-blocking-property-certain-persons-engaging-significant-m">declared a cybersecurity emergency</a> on April 1, 2015 that is still in effect, and Trump has declared that steel imports are <a href="https://www.whitehouse.gov/presidential-actions/presidential-proclamation-adjusting-imports-steel-united-states/">an urgent threat to national security</a>. </p>
<p>It’s not hard to make a case that climate change is an equally critical problem. Recent science indicates that major action will be needed in the next decade to <a href="https://www.ipcc.ch/sr15/">hold warming below extreme levels</a>. There’s also clear support for the idea that climate change is <a href="https://theconversation.com/a-military-perspective-on-climate-change-could-bridge-the-gap-between-believers-and-doubters-128609">a major national security threat</a>. </p>
<p>To date, courts have never overturned a presidential emergency declaration, and I believe a climate emergency seems unlikely to be an exception. Legal challenges to President Trump’s border security declaration <a href="https://www.reuters.com/article/us-usa-immigration-court/u-s-appeals-court-stays-judges-ruling-blocking-military-funds-for-border-wall-idUSKBN1Z806H">so far have failed</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Border wall construction in Organ Pipe Cactus National Monument, Ariz.</span>
<span class="attribution"><a class="source" href="https://www.biologicaldiversity.org/resourcespace/pages/view.php?ref=13201&k=b91f42ce65&search=&offset=0&order_by=relevance&sort=ASC&archive=">Laiken Jordahl/Center for Biological Diversity</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>Frustration with gridlock</h2>
<p>Emergency actions bypass bureaucracy and minimize the potential for litigation, compared to the cumbersome regulatory process. That makes them fast and decisive. They also place responsibility squarely on the president, which increases political accountability. There’s no question of who to blame if you don’t like the border wall – or emergency climate actions. </p>
<p>Unlike legislation, an emergency action does not have to move through Congress. And unlike federal regulations, there is no requirement for transparency or public comment, and less room for judicial oversight. </p>
<p>That can speed things up but it also makes major mistakes more likely. The <a href="https://www.history.com/this-day-in-history/fdr-signs-executive-order-9066">internment of Japanese Americans</a> during World War II is a vivid example. </p>
<p>In addition, once an emergency is declared, a president may be able to use emergency powers in laws that aren’t even related to that emergency. “Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to <a href="https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/">requisition any privately owned vessel at sea</a>,” writes Elizabeth Goiten, director of the Brennan Center’s <a href="https://www.brennancenter.org/our-work/policy-solutions/liberty-national-security-election-agenda-candidates-activists-and">Liberty and National Security Program</a>.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Bernie Sanders’ climate plan would declare a national climate emergency, while Joe Biden’s relies on executive orders, legislation and regulation.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Election-2020-Debate/fc23b68484b6453181a452909e4fe796/1/0">AP Photo/Patrick Semansky</a></span>
</figcaption>
</figure>
<p>There’s no question that legislating is difficult and time-consuming. It requires the agreement of both houses of an increasingly polarized Congress. So long as the filibuster rule is in effect, it needs 60 votes in the Senate, which would require some Republican support even if Democrats regain a majority in the 2020 elections. </p>
<p>Americans seem <a href="https://www.people-press.org/2018/11/15/public-expects-gridlock-deeper-divisions-with-changed-political-landscape/">increasingly frustrated</a> by government’s inability to take bold action. If conventional means of policy change remain clogged, some people may find the national emergency approach all but irresistible. </p>
<p>Despite the appeal of breaking through gridlock, there are also real dangers to invoking emergency powers. Normalizing their use could make these expanded presidential powers hard to confine. </p>
<p>Congress has the power to nullify emergency declarations by passing a resolution of disapproval, but this has proved ineffective in practice. For instance, despite bipartisan support, Congress has <a href="https://www.politico.com/story/2019/09/25/senate-vote-national-emergency-border-wall-1510795">failed to muster veto-proof margins</a> for two resolutions overturning Trump’s border emergency, which the administration has used to divert billions of dollars to wall construction.</p>
<p>As Justice Robert Jackson wrote in <a href="https://www.law.cornell.edu/supremecourt/text/343/579">Youngstown Sheet & Tube Company v. Sawyer</a> – a famous 1952 Supreme Court decision in which the court held that President Truman did not have the constitutional authority to nationalize the U.S. steel industry during the Korean War – emergency powers “afford a ready pretext for usurpation,” and the potential for using those powers “can tend to kindle emergencies” to justify their use. </p>
<p>In my view, those risks may be worth taking only if all other avenues for dealing with an urgent problem like climate change are blocked. It remains to be seen whether that precondition will be met.</p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>.]</p><img src="https://counter.theconversation.com/content/132501/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Farber does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Declaring an issue is a national emergency lets presidents act quickly and with few constraints. But once they get this kind of power, it’s hard to take it back – and it can produce bad policies.Daniel Farber, Professor of Law, University of California, BerkeleyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1093572019-02-08T11:32:05Z2019-02-08T11:32:05ZLópez Obrador clashes with courts after vowing ‘poverty’ for Mexican government<figure><img src="https://images.theconversation.com/files/257819/original/file-20190207-174880-ydnlpm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">López Obrader wants to cut salaries for all government workers in Mexico, including himself.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Mexico-Fuel-Theft/af44b632456944778936c2f4902a0db6/60/0">AP Photo/Rebecca Blackwell</a></span></figcaption></figure><p>It’s rare for presidents to advocate for poverty, but that’s just what <a href="https://theconversation.com/andres-manuel-lopez-obrador-was-elected-to-transform-mexico-can-he-do-it-99176">Mexican President Andrés Manuel López Obrador</a> is doing.</p>
<p>At a press conference on Feb. 1, López Obrador said his government would embrace what he called “<a href="https://lopezobrador.org.mx/2019/02/01/version-estenografica-de-la-conferencia-de-prensa-matutina-del-presidente-andres-manuel-lopez-obrador-36/">Franciscan poverty</a>” if it would “transfer funds to the people” and achieve “development, jobs and welfare.” </p>
<p>Francis of Assisi was a Catholic saint who <a href="https://www.friarsofstfrancis.org/the-spirit-of-poverty-of-st-francis-of-assisi/">disdained material wealth</a> to follow Christ as a poor man.</p>
<p>López Obrador’s poverty vow is more bureaucratic than religious. As part of an ambitious effort to fight poverty and reduce government corruption, the president proposed to cut the salaries of public officials, including his own, <a href="https://www.animalpolitico.com/2018/07/amlo-austeridad-corrupcion-puntos/">slash federal budgets</a> and <a href="https://expansion.mx/finanzas-personales/2018/08/01/eres-empleado-de-confianza-asi-te-afectaran-las-decisiones-de-amlo">lay off 70 percent of non-unionized federal workers</a>. An estimated <a href="https://twitter.com/Viri_Rios/status/1018880589850701824">276,290</a> public employees will lose their jobs.</p>
<p>After lawsuits were filed by <a href="https://www.excelsior.com.mx/nacional/la-corte-congela-el-tope-a-salarios-pese-a-resistencia-habra-austeridad-delgado/1283451">opposition political parties</a> and Mexico’s <a href="http://www.cndh.org.mx/sites/all/doc/Acciones/Acc_Inc_2018_105.pdf">National Human Rights Commission</a>, the Supreme Court in December <a href="https://www.scjn.gob.mx/sites/default/files/acuerdos_controversias_constit/documento/2018-12-07/ACU%207-12-18%20ISDAI%20105-18.pdf">granted a temporary suspension</a> of López Obrador’s new <a href="http://www.diputados.gob.mx/LeyesBiblio/pdf/LFRemSP_051118.pdf">Federal Law of Public Servant Salaries</a>. </p>
<p>Saying that even austerity budgets must guarantee the basic functioning of the government, Justice Alberto Pérez Dayán said López Obrador’s plan cannot go into effect until the Supreme Court rules on its constitutionality. </p>
<p>The decision has set up a standoff between the president and the courts, with Mexico’s federal budget and <a href="https://www.proceso.com.mx/570407/el-pueblo-se-cansa-de-tanta-pinche-transa-dice-amlo-confirma-intervencion-ante-scjn-video">judicial independence</a> hanging in the balance.</p>
<h2>Reducing inequality, one tree at a time</h2>
<p>López Obrador and his leftist Morena Party won a <a href="https://centralelectoral.ine.mx/2018/07/08/confirma-ine-resultados-de-eleccion-presidencial-2018/">landslide victory</a> in Mexico’s 2018 general election on promises that they would transform Mexico, empowering the underprivileged in a country with gaping inequality.</p>
<p>Since taking office on Dec. 1, López Obrador has suggested creating some 20,000 jobs in fruit production and wood harvesting by <a href="https://www.excelsior.com.mx/nacional/lopez-obrador-vuelve-a-sus-origenes-presenta-en-tabasco-sembrando-vida/1293984">planting trees</a> on a million acres of land in rural southern Mexico. He has also proposed paying <a href="https://www.excelsior.com.mx/nacional/busca-lopez-obrador-llegar-a-85-millones-de-apoyos-a-adultos-mayores/1289997">small monthly pensions of up to 2,550 pesos</a> – around US$134 – to Mexicans above the age of 68 and to people with <a href="https://lopezobrador.org.mx/2018/12/20/destinara-gobierno-presupuesto-historico-para-personas-con-discapacidad-en-2019-presidente-de-mexico/">disabilities</a> who lack social security benefits.</p>
<p>Leftist governments usually fund social programs like this by raising taxes on the wealthy. López Obrador says he <a href="https://expansion.mx/economia/2018/11/26/estas-son-las-12-promesas-economicas-de-amlo">won’t do that</a>. Instead, his administration hopes to recover public funds by cracking down on <a href="https://books.google.com.mx/books?redir_esc=y&id=0-zmDQAAQBAJ&q=corrupcion#v=onepage&q=corrupci%C3%B3n&f=false">rampant corruption</a> and saving money with <a href="https://elpais.com/internacional/2018/07/16/actualidad/1531708329_222187.html">fiscal austerity</a>. That’s where the salary cuts and mass layoffs come into play.</p>
<p>López Obrador is an <a href="https://lopezobrador.org.mx/2017/11/04/asamblea-informativa-en-susticacan-zacatecas/">admirer of Benito Juárez</a>, the indigenous president who ruled Mexico from 1858 to 1872. Juárez extolled the virtues of selfless public service, <a href="http://www.biblioteca.tv/artman2/publish/1852_153/Discurso_pronunciado_por_Benito_Ju_rez_gobernador_del_estado_de_Oaxaca_ante_la_X_Legislatura_al_abrir_el_primer_periodo_de_sus_sesiones_ordinarias.shtml">saying</a> public servants should “devote themselves to work assiduously while resigning to live in … honorable modesty.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/257823/original/file-20190207-174851-1bz67cx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Los Pinos presidential palace in Mexico City is now open to the public.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/e/ea/Los_Pinos%2C_Mexico_2018.jpg">Drkgk/Wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>López Obrador flies commercial and has refused to take up residence in the Los Pinos presidential palace, turning it into a cultural center. </p>
<p>He also set his salary at a “<a href="https://www.bloomberg.com/news/articles/2018-12-11/amlo-eyes-salary-of-mexico-supreme-court-head-in-austerity-push">moderate</a>” 108,000 pesos, about <a href="http://www.eluniversal.com.mx/english/amlo-slash-60-his-salary">$5,700 a month</a> – roughly $68,400 a year. That’s 60 percent less than his predecessor, Enrique Peña Nieto, who earned <a href="https://adnpolitico.com/presidencia/2018/07/15/lopez-obrador-fija-en-108-000-el-tope-de-sueldos-para-funcionarios-en-mexico">the equivalent of $14,200 a month</a> in 2018.</p>
<p>The wage gap between average workers and the Mexican head of state was the highest in the world last year, according to a <a href="https://www.ig.com/uk/forex/research/pay-check#/salary">report by the IG Group</a>, a British financial services company. On average, Mexican workers earn around $15,311 a year. </p>
<p>López Obrador’s voluntary pay cut has drastically reduced the difference between his income and <a href="https://www.efe.com/efe/english/life/mexican-households-have-an-average-of-3-8-members-843-in-monthly-income/50000263-2666718">everyone else’s</a>.</p>
<h2>Attacks on the judiciary</h2>
<p>Since <a href="http://www.diputados.gob.mx/LeyesBiblio/pdf/1_270818.pdf">the Mexican Constitution</a> mandates that no public official should make more than the president, however, López Obrador has also effectively capped wages for all government employees. </p>
<p>To his mind, that’s a good thing.</p>
<p>The days of having “a rich government with a poor population” are over, the president <a href="https://aristeguinoticias.com/0812/mexico/quienes-deberian-impartir-justicia-estan-dando-un-mal-ejemplo-amlo/">told a crowd</a> in December. He was speaking in the western state of Nayarit, pledging aid for victims of a recent hurricane. </p>
<p>In the same speech, López Obrador attacked the Supreme Court’s decision to suspend his pay cut plan, accusing Mexican judges – not just Justice Pérez Dayán – of selfishly wanting to keep their salaries and benefits intact. </p>
<p>In fact, <a href="http://www.diputados.gob.mx/LeyesBiblio/pdf/1_270818.pdf">Article 94 of the Mexican Constitution</a> explicitly prohibits reducing the salary of judges at any time during their appointment, a guarantee of judicial independence that <a href="http://www.ordenjuridico.gob.mx/Constitucion/1857.pdf">dates back to 1857</a>.</p>
<p>In 2018, Supreme Court justices earned <a href="https://www.eluniversal.com.mx/nacion/ministros-aceptan-reducir-25-sus-salarios">269,215 pesos</a> – around $14,000 a month. </p>
<p>The Supreme Court has since <a href="https://www.eluniversal.com.mx/nacion/ministros-aceptan-reducir-25-sus-salarios">agreed</a> to take a 25 percent pay cut “in accordance with the new policy of austerity that the presidency has demanded of the Supreme Court of Justice.” That puts their 2019 salaries at about $10,500 a month, not including benefits. </p>
<p>In adopting this measure, the Supreme Court also clarified that, as an independent branch of government directly protected by the Constitution, the judiciary is not bound by the salary standards established by López Obrador. The justices will decide how to implement austerity within the court system. </p>
<h2>Judicial battles ahead</h2>
<p>The Supreme Court is expected to make a definitive ruling on the <a href="https://eljuegodelacorte.nexos.com.mx/?p=9321">two lawsuits challenging the constitutionality</a> of the Federal Law of Public Servant Salaries some time this year. </p>
<p>Over <a href="https://www.eluniversal.com.mx/nacion/mas-de-20-mil-piden-amparo-contra-la-ley-de-salarios">20,000 public servants have also filed individual complaints</a> in federal courts, saying salary cuts violate their labor rights. Under Mexican law, <a href="http://sjf.scjn.gob.mx/sjfsist/Documentos/Tesis/257/257483.pdf">legislation is deemed retrospective</a> – and thus unconstitutional – if it affects the vested rights of individuals. Employers, including the federal government, cannot unilaterally reduce their employees’ wages.</p>
<p>At least <a href="https://elfinanciero.com.mx/nacional/en-38-dias-12-mil-817-trabajadores-despedidos-o-en-vias-de-serlo">12,817 Mexican public servants</a> have already been laid off under López Obrador’s austerity plan. Many of those who have kept their jobs have seen their <a href="https://www.eluniversal.com.mx/cartera/cero-prestaciones-burocratas-eventuales-y-por-honorarios">social security benefits and vacation time</a> eliminated under the new law.</p>
<p>Beyond its questionable constitutionality, López Obrador’s de facto salary cap on public servants does not take into account the expertise, seniority or skills required of high-level positions. Less than $5,700 a month is simply insufficient payment for the most highly skilled workers, Mexican constitutional <a href="http://www.enciclopediagro.org/index.php/indices/indice-de-biografias/102-arteaga-nava-elisur">expert</a> Elisur Arteaga told the newspaper <a href="https://www.razon.com.mx/mexico/juristas-ley-de-salarios-al-vapor-habra-amparos/">La Razon</a> last year. He expects talent will flee the government for the private sector.</p>
<p>Nobody in Mexico thought that transforming the country would be easy when they voted López Obrador into office. To <a href="https://elpais.com/elpais/2018/11/28/opinion/1543428474_358305.html">paraphrase Mexican pundit Jesús Silva-Herzog</a>, fixing Mexico’s bloated and corrupt government was work for a surgeon with a scalpel. </p>
<p>López Obrador, it’s becoming clear, prefers a machete.</p><img src="https://counter.theconversation.com/content/109357/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>In 2002, Luis Gómez Romero contributed to a constitutional amendment aimed at establishing that no public servant can receive remuneration higher than that established of the President of Mexico, which later became law.</span></em></p>Mexico’s new president has reduced his own salary and demanded that all federal workers
– including lawmakers and judges – take a massive pay cut, too. That may be illegal.Luis Gómez Romero, Senior Lecturer in Human Rights, Constitutional Law and Legal Theory, University of WollongongLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/812962017-07-20T01:49:53Z2017-07-20T01:49:53ZCan Trump use the presidential pardon to thwart the Russia investigations?<p>Speculation is mounting that President Donald Trump could issue a pardon to members of his family and close associates who are suspected of colluding with Russia in the 2016 campaign.</p>
<p>Sen. Mark Warner, the top Democrat on the Senate Intelligence Committee, <a href="https://www.vox.com/policy-and-politics/2017/7/13/15966866/donald-trump-jr-russia-mark-warner-senate-intelligence-interview">recently cautioned</a> about “the possibility of presidential pardons in this process.”</p>
<p>The <a href="https://www.reuters.com/article/us-usa-trump-russia-agent-idUSKBN19Z189">June 2016 meeting</a> of Donald Trump Jr., Paul Manafort, Jared Kushner and Russian go-betweens promising dirt about Hillary Clinton raises the specter of criminal liability under campaign finance laws. Those laws <a href="https://www.law.cornell.edu/cfr/text/11/110.20">prohibit foreign nationals</a> from “directly or indirectly” making “a contribution or a donation of money or other thing of value … in connection with any Federal, State, or local election.” Damaging information on an opponent could certainly be considered a “thing of value” during a campaign.</p>
<p><a href="https://www.forbes.com/sites/jacobfrenkel/2017/07/17/what-charges-special-counsel-mueller-will-consider-involving-donald-trump-jr/#7fba16d82da3">Not everyone agrees</a> that Trump’s son, son-in-law and Manafort committed crimes. We are a long way from knowing whether there will be criminal prosecutions in these matters. But the mere possibility of a criminal prosecution could lead the president to invoke <a href="https://constitutioncenter.org/interactive-constitution/articles/article-ii#commander-in-chief">his authority</a> under Article II, Section 2 of the Constitution to grant “Reprieves and Pardons for Offences against the United States.”</p>
<p>My <a href="http://press.princeton.edu/titles/8018.html">research on clemency</a> shows how chief executives have used this power, in particular the power to pardon, to halt criminal prosecutions, sometimes even before they begin. </p>
<h2>‘For any reason at all’</h2>
<p>The pardoning power, as Founding Father Alexander Hamilton <a href="http://avalon.law.yale.edu/18th_century/fed69.asp">explained</a>, is very broad, applying even to cases of treason against the United States. As <a href="http://avalon.law.yale.edu/18th_century/fed74.asp">Hamilton put it</a>, “the benign prerogative of pardoning should be as little as possible fettered or embarrassed.”</p>
<p>Throughout our history, courts have taken a similarly expansive view. In 1977, Florida’s State Supreme Court <a href="http://campuspress.yale.edu/capitalpunishment/files/2014/12/Class-13-Part-2-Clemency-Execution-w0pt0n.pdf">said that</a> “An executive may grant a pardon for good reasons or bad, or for any reason at all, and his act is final and irrevocable.”</p>
<p>In 1837, the <a href="http://caselaw.findlaw.com/us-supreme-court/71/333.html">United States Supreme Court held</a> that the president’s pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their <a href="http://www.dictionary.com/browse/pendency">pendency</a>, or after conviction and judgment.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=378&fit=crop&dpr=1 600w, https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=378&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=378&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=475&fit=crop&dpr=1 754w, https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=475&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/178923/original/file-20170719-13558-alwfl8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=475&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Gerald Ford on Sept. 8, 1974 grants former President Richard Nixon ‘a full, free and absolute pardon.’</span>
<span class="attribution"><span class="source">AP Photo</span></span>
</figcaption>
</figure>
<p>Yet <a href="http://www.slate.com/articles/news_and_politics/explainer/2008/07/preemptive_presidential_pardons.html">prospective pardons</a> are quite rare. The most famous prospective pardon in American history was granted by President Gerald Ford in September 1974. He <a href="http://www.presidency.ucsb.edu/ws/?pid=4696">pardoned former President Richard Nixon</a> after he was forced to resign in the face of the Watergate scandal. Ford pardoned Nixon for “all offenses against the United States which he… has committed or may have committed or taken part in” between the date of his inauguration in 1969 and his resignation. </p>
<p>In other cases, presidents have halted criminal proceedings immediately after they began. President <a href="http://articles.latimes.com/1992-12-25/news/mn-2472_1_iran-contra-affair">George H.W. Bush</a> pardoned former Defense Secretary Caspar Weinberger just after Weinberger had been indicted for lying to Congress about the sale of arms to Iran by the Reagan administration.</p>
<p>Those pardons evoked public outcry against what was perceived to be an arrogant interference with the legal process. Ford’s action may have contributed to his defeat in the 1976 presidential election against Jimmy Carter. And Bush’s pardon of Weinberger prompted accusations that he was engaging in a cover-up. Critics said that <a href="http://www.nytimes.com/books/97/06/29/reviews/iran-pardon.html">his action demonstrated</a> that “powerful people with powerful allies can commit serious crimes in high office – deliberately abusing the public trust without consequence.”</p>
<h2>Rule of law</h2>
<p>Given such controversies about pardons and the the fear of being labeled soft on crime, presidents have been <a href="http://www.pewresearch.org/fact-tank/2017/01/20/obama-used-more-clemency-power/">increasingly reticent</a> about using their clemency power before or after conviction. Thus, while President Nixon granted clemency to more than 36 percent of those who sought it during his eight years in office, the comparable number for George W. Bush was 2 percent. President Obama <a href="http://www.pewresearch.org/fact-tank/2017/01/20/obama-used-more-clemency-power/">reversed that trend</a>, granting more pardons and commutations than anyone since Harry Truman.</p>
<p>Given President Trump’s commitment to being a <a href="https://www.usatoday.com/story/news/politics/elections/2016/11/09/donald-trump-criminal-justice/93550162/">law-and-order president</a>, it seems unlikely that he will follow Obama’s lead. Yet he may make an exception to shield Donald Jr., Kushner and Manafort from criminal liability. </p>
<p>Congressman Adam Schiff <a href="https://vimeo.com/225757422">predicted a negative public reaction</a> if Trump grants pardons. He said: “The impressions the country, certainly, would get from that is the president was trying to shield people from liability for telling the truth about what happened in the Russia investigation or Russian contacts.”</p>
<p>However, his prediction offers little comfort at a time when many venerable norms and rules of political life are being rewritten or ignored. No matter what explanation he might offer, any move by President Trump to pardon Donald Jr., Kushner or Manafort would not only hamper the Russia investigations, it would also deliver another serious blow to <a href="https://theconversation.com/is-trumps-definition-of-the-rule-of-law-the-same-as-the-us-constitutions-77598">America’s increasingly precarious hold</a> on democracy and the rule of law.</p><img src="https://counter.theconversation.com/content/81296/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Presidents past have used this nearly limitless power to halt criminal prosecutions before. What’s to stop Trump?Austin Sarat, Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/806282017-07-06T13:22:14Z2017-07-06T13:22:14ZLungu tries to have his cake and eat it: a state of emergency in all but name<figure><img src="https://images.theconversation.com/files/177094/original/file-20170706-11940-1k5qbf3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Zambia's President Edgar Lungu is tightening his grip on power even further.</span> <span class="attribution"><span class="source">EPA/Abir Sultan</span></span></figcaption></figure><p>For 24 hours rumours swirled through Zambia that President Edgar Lungu <a href="https://www.zambiawatchdog.com/lungu-likely-to-sign-state-of-emergency-tonight/">planned to initiate a state of emergency</a>. When he finally took to the airwaves to <a href="https://mg.co.za/article/2017-07-05-zambia">make a special announcement</a> he did something different. Invoking <a href="https://www.lusakatimes.com/2017/07/05/article-31-declaration-relating-threatened-emergency/">Article 31</a> of the <a href="https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/26620/90492/F735047973/ZMB26620.pdf">constitution</a> – Declaration Relating to Threatened Emergency – rather than Article 30 – Declaration of Public Emergency – the president requested extra powers to prevent a state of emergency rather than actually declaring one.</p>
<p>In practice, the difference between the two is slim. If, as expected, parliament approves his request he will have been given considerably more powers. He will be able to restrict movement of assembly, implement a curfew, curtail parliament, ban publications, order detention without trial, and search any property without a search warrant. As respected Zambian commentator Sishuwa Sishuwa has put it, this is effectively a “State of Threatened Emergency”.</p>
<p>The president’s decision to go with Article 31 is significant for a number of reasons. The first is that it allows the Zambian government to ward off criticism by being able to argue that it has <em>not</em> <a href="https://www.lusakatimes.com/2017/07/06/president-lungu-not-declared-state-emergency/">declared a state of emergency</a>. This is important because the Patriotic Front regime is in the process of negotiating a much needed <a href="https://www.lusakatimes.com/2017/05/02/imf-bail-will-not-bring-untold-misery-zambia-mutati/">economic bail out with the International Monetary Fund</a>.</p>
<p>Presenting its authoritarian backsliding in a more palatable way is therefore extremely valuable. By opting for Article 31, Lungu hopes to have his cake and eat it. He will have secured powers to consolidate his political control while generating “plausible deniability” to whether or not he has fatally undermined Zambian democracy.</p>
<p>To some extent this strategy has been successful. Initial Facebook and twitter <a href="https://www.facebook.com/nic.cheeseman/posts/1301668219959781?pnref=story">conversations</a> about how the measure could be reversed quickly gave way to confusion and arguments about what the president had actually declared, and what it meant.</p>
<h2>Why did Lungu do it?</h2>
<p>The official reason behind the president’s request for extra powers is a spate of civil disobedience and arson that has seen a number of markets burnt down. The immediate trigger was a fire that destroyed the country’s largest, the <a href="http://allafrica.com/view/group/main/main/id/00053416.html">City Market in Lusaka</a>.</p>
<p>But the president’s claim to simply be acting in the interests of law and order has been fiercely contested by critics. Instead, <a href="http://www.reuters.com/article/us-zambia-politics-idUSKBN17Q0W8">opposition leaders allege</a> that the government has been either taking advantage of natural fires or deliberately starting them to justify the extension of authoritarian control. </p>
<p>This claim is lent credibility by the fact that the investigation of the City Market fire had only just begun when the decision to expand the president’s powers was taken. Rumours circulating in Zambia suggest that in fact it resulted from an <a href="http://zambia24.com/news/2017/07/04/city-market-fire-resulted-from-an-electrical-fault-onlookers/">electrical fault rather than sabotage</a>.</p>
<p>If this is true, it raises the question of what lies behind Lungu’s increasingly aggressive strategy. Three overlapping explanations are circulating, all of which have a degree of plausibility.</p>
<p>The first is that it’s simply another way of intimidating the opposition. In addition to <a href="https://theconversation.com/we-need-to-talk-about-zambia-as-it-falls-from-grace-under-president-lungu-77520">arresting United Party for National Development leader Hakainde Hichilema</a>, popularly known as HH, the government has tried various ways to clamp down on opposition to its rule. This has included the <a href="https://theconversation.com/zambia-slides-towards-authoritarianism-as-imf-props-up-government-79533">suspension of 48 opposition MPs</a>. And fears that Hichilema might be acquitted by the High Court, and subsequently released, are said to explain the timing of the president’s statement.</p>
<p>The second is that the president faces serious challenges within the Patriotic Front, where some question his suitability to lead. In addition to rumours that he is in <a href="http://www.zambianobserver.com/edgar-lungu-gets-more-sick-stops-talking/">bad health</a>, this makes him potentially more <a href="https://mg.co.za/article/2017-07-05-zambia">vulnerable to internal opposition</a> than to the challenge of the main opposition party. On this interpretation, Lungu’s appropriation of extra powers is designed as a warning to his rivals within the party to back off.</p>
<p>Finally, some see his decision as being motivated by his desire to secure a <a href="http://democracyinafrica.org/zambia-president-lungu-third-term/">third term in office</a> when his current term ends in 2021. The legality of this is questionable, and the move is fiercely opposed by opposition parties.</p>
<p>On their own, none of these claims fully explains why Lungu has opted for such a controversial move when IMF negotiations are at a delicate stage. In reality it may be that the president’s actions are explained by some combination of all three – or indeed, an alternative explanation that has not yet come to light.</p>
<h2>What happens next?</h2>
<p>There’s <a href="https://mg.co.za/article/2017-07-05-zambia%20%22%22">confusion</a> about exactly where Lungu intends to go from here. In a presidential address in the last hour his stance appeared to harden, rejecting international criticism and <a href="https://www.themastonline.com/2017/07/06/imf-can-go-lungu/">stating that:</a> “If they [IMF] think I am going astray, let them go.” </p>
<p>According to <a href="https://mg.co.za/article/2017-07-05-zambia">Nicole Beardsworth</a>, a senior researcher at the Centre for the Study of Violence and Reconciliation, Lungu’s declaration will give him <a href="http://www.parliament.gov.zm/sites/default/files/documents/acts/Preservation%20of%20Public%20Security%20Act.pdf">additional powers</a>. Moreover, if his statutory instrument is approved by Parliament, it can be extended for a period of months.</p>
<p>This would seem to give the president all the time and powers he would need to further cow internal and external opposition, although it’s still possible that he will seek to apply a full state of emergency.</p>
<p>What may prevent this from happening is concern within the cabinet that such a move would be unnecessary and counterproductive. Not all leaders of the Patriotic Front agree with the direction that Lungu is taking his country in. Push back in a cabinet meeting is said to have prevented an even more forceful declaration.</p>
<p>Given the president’s new found capacity to control the media and intimidate the opposition, these internal constraints may prove to be Zambia’s best hope of avoiding dictatorship.</p><img src="https://counter.theconversation.com/content/80628/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nic Cheeseman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Zambia’s president is securing powers to consolidate his political control while generating ‘plausible deniability’ to whether or not he has fatally undermined democracy.Nic Cheeseman, Professor of Democracy, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/778322017-05-17T01:19:23Z2017-05-17T01:19:23ZWhat is classified information, and who gets to decide?<figure><img src="https://images.theconversation.com/files/169630/original/file-20170516-24307-1wvu8cs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Classified documents.</span> <span class="attribution"><a class="source" href="http://download.shutterstock.com/gatekeeper/W3siZSI6MTQ5NTAwNTgzMiwiYyI6Il9waG90b19zZXNzaW9uX2lkIiwiZGMiOiJpZGxfMzc3MzgyMzI4IiwiayI6InBob3RvLzM3NzM4MjMyOC9odWdlLmpwZyIsIm0iOiIxIiwiZCI6InNodXR0ZXJzdG9jay1tZWRpYSJ9LCJtVlM5YUN2WjYvMkVZTkxvZjNISTg0L3VZYjAiXQ/shutterstock_377382328.jpg">www.shutterstock.com</a></span></figcaption></figure><p>Before coming to academia, I worked for many years as an analyst at both the State Department and the Department of Defense. </p>
<p>I held a top secret clearance, frequently worked with classified information and participated in classified meetings. Classified information is that which a government or agency deems sensitive enough to national security that access to it must be controlled and restricted. For example, I dealt with information related to weapons of mass destruction and their proliferation.</p>
<p>Handling written classified information is generally straightforward. Documents are marked indicating classification levels. It is sometimes more difficult to remember, however, whether specific things heard or learned about in meetings or oral briefings are classified. Government employees sometimes reveal classified details accidentally in casual conversations and media interviews. We may not hear about it because it’s not in the interviewee’s or employee’s interest to point it out after the fact, or he or she may not even realize it at the time. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=437&fit=crop&dpr=1 600w, https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=437&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=437&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=550&fit=crop&dpr=1 754w, https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=550&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=550&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">David Boren of Oklahoma, right, talks to reporters on Capitol Hill in 1991.</span>
<span class="attribution"><span class="source">AP Photo/John Duicka</span></span>
</figcaption>
</figure>
<p>In 1991, Sen. David Boren <a href="http://www.nytimes.com/1991/07/18/us/senator-s-slip-costs-cloak-and-dagger-agent-the-rest-of-his-cloak.html">accidentally revealed</a> the name of a clandestine CIA agent during a news conference. At the time, Boren was no less than chairman of the Senate Select Committee on Intelligence.</p>
<p>Not all revelations of classified details are earth-shattering, like nuclear launch codes. Many are are rather mundane. A former colleague of mine who was a retired CIA analyst used to tell his students he would never knowingly, but almost certainly would inadvertently, share a tidbit of classified information in the classroom. It is very difficult to remember many “smaller” details that are sensitive.</p>
<p>Dealing with large amounts of classified information over a career increases the possibility of accidentally sharing a small nugget. Sharing classified information knowingly, or revealing information one should know is sensitive, is a different matter. </p>
<p>Here’s how the system of classification works.</p>
<h2>Classification levels and content</h2>
<p>The U.S. government uses <a href="https://obamawhitehouse.archives.gov/the-press-office/2010/08/18/executive-order-13549-classified-national-security-information-programs-%22%22">three levels of classification</a> to designate how sensitive certain information is: confidential, secret and top secret.</p>
<p>The lowest level, confidential, designates information that if released could damage U.S. national security. The other designations refer to information the disclosure of which could cause “serious” (secret) or “exceptionally grave” (top secret) damage to national security. </p>
<p>At the top secret level, some information is “<a href="http://www.acqnotes.com/acqnote/careerfields/sensitive-compartmented-information">compartmented</a>.” That means only certain people who have a top secret security clearance may view it. Sometimes this information is given a “code word” so that only those cleared for that particular code word can access the information. This is often used for the most highly sensitive information.</p>
<p>There are several other designators that also indicate restricted access. For example, only those holding a secret or top secret clearance, and the critical nuclear weapon design information designation, are allowed to access information related to many aspects of the operation and design of nuclear weapons.</p>
<p>It is common for written documents to contain information that is classified at different levels, including unclassified information. Individual paragraphs are marked to indicate the level of classification. For example, a document’s title might be preceded with the marker (U) indicating the title and existence of the document is unclassified. </p>
<p>Within a document, paragraphs might carry the markers “S” for secret, “C” for confidential or “TS” for top secret. The highest classification of any portion of the document determines its overall classification. This approach allows for the easy identification and removal of classified portions of a document so that less sensitive sections can be shared in unclassified settings. </p>
<h2>Not quite confidential</h2>
<p>Below the confidential level, there are varying terms for information that is not classified but still sensitive.</p>
<p>Government agencies use different terms for this category of information. The State Department uses the phrase “sensitive but unclassified,” while the Department of Defense and the Department of Homeland Security use “for official use only.” These markers are often seen in the headers and footers of documents just like classified designations.</p>
<h2>Who decides?</h2>
<p><a href="https://www.gpo.gov/fdsys/pkg/FR-2010-01-05/pdf/E9-31418.pdf">Executive Order 13256</a> spells out who specifically may classify information.</p>
<p>Authority to take certain pieces of information, say the existence of a weapons program, and classify it top secret is given only to specific individuals. They include the president and vice president, agency heads and those specifically designated by authorities outlined in the executive order.</p>
<p>Procedures for declassification of materials are complicated. They are delineated in <a href="https://www.archives.gov/federal-register/codification/executive-order/12356.html#part3">Executive Order 12356</a>. However, the president has ultimate declassification authority and may declassify anything at any time.</p>
<p>Deciding what information is classified is subjective. Some things clearly need to be kept secret, like the identity of covert operatives or battle plans. Other issues are not as obvious. Should the mere fact that the secretary of state had a conversation with a counterpart be classified? Different agencies disagree about issues like this all the time.</p>
<p>In practice, when people leave the government they often engage in media interviews, write books and have casual conversations. There are bound to be complications and revelations – accidental or otherwise.</p><img src="https://counter.theconversation.com/content/77832/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeffrey Fields receives funding from the Carnegie Corporation of New York and the MacArthur Foundation.</span></em></p>A professor who once held top secret clearance explains how levels of classification work and where handling sensitive information gets tricky.Jeffrey Fields, Associate Professor of the Practice of International Relations, USC Dornsife College of Letters, Arts and SciencesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/759592017-04-07T21:38:26Z2017-04-07T21:38:26ZStrikes against Syria: Did Trump need permission from Congress?<figure><img src="https://images.theconversation.com/files/164526/original/image-20170407-22688-txrbeb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Donald Trump after speaking at Mar-a-Lago in Palm Beach, Florida.</span> <span class="attribution"><span class="source">AP Photo/Alex Brandon</span></span></figcaption></figure><p>Launching <a href="http://www.nbcnews.com/news/us-news/u-s-launches-missiles-syrian-base-after-chemical-weapons-attack-n743636">59 cruise missiles</a> at a Syrian military airfield in response to a Syrian chemical weapons attack that killed dozens of civilians raises important questions. Does the president have, or should he have, the authority to use military force without the explicit consent of Congress? </p>
<p>The U.S. Constitution makes the president the commander-in-chief of the armed forces, while granting Congress the power to declare war. The framers of the Constitution <a href="https://muse.jhu.edu/book/39876">intended</a> through the latter provision to make Congress the principal decision-maker regarding the initiation of military campaigns. But they also <a href="https://works.bepress.com/johnyoo/44/">sought</a> to allow presidents some leeway with respect to the handling of crises. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/164523/original/image-20170407-31640-1rvbwh5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/164523/original/image-20170407-31640-1rvbwh5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/164523/original/image-20170407-31640-1rvbwh5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=360&fit=crop&dpr=1 600w, https://images.theconversation.com/files/164523/original/image-20170407-31640-1rvbwh5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=360&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/164523/original/image-20170407-31640-1rvbwh5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=360&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/164523/original/image-20170407-31640-1rvbwh5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=453&fit=crop&dpr=1 754w, https://images.theconversation.com/files/164523/original/image-20170407-31640-1rvbwh5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=453&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/164523/original/image-20170407-31640-1rvbwh5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=453&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George W. Bush after the House reached agreement on a resolution authorizing use of military force against Iraq.</span>
<span class="attribution"><span class="source">REUTERS/Kevin Lamarque</span></span>
</figcaption>
</figure>
<p>During the first century and a half of U.S. history, most wars involving the United States – including the War of 1812, the Mexican-American War, the Spanish-American War, World War I and World War II – were <a href="https://www.senate.gov/pagelayout/history/h_multi_sections_and_teasers/WarDeclarationsbyCongress.htm">backed</a> by a congressional declaration of war. More recently, Congress <a href="https://fas.org/sgp/crs/natsec/R42699.pdf">authorized</a> the Persian Gulf War and the post-Sept. 11 wars in Afghanistan and Iraq. Although Congress did not formally declare war in these three cases, an authorization of the use of force has held the same legal standing as a declaration of war.</p>
<p>But in the past 70 years, it has become quite common for American presidents to order combat operations without an explicit congressional endorsement. Presidents have maintained that their commander-in-chief power under the Constitution gives them the right to do so. Members of Congress have been split on this question. </p>
<p>In the wake of the recent missile strikes against Syria, congressional leaders of both parties <a href="http://www.politico.com/story/2017/04/trump-syria-congress-reaction-republicans-democrats-236975?lo=ap_d1">endorsed</a> the strikes, while other lawmakers <a href="https://www.washingtonpost.com/powerpost/congress-greets-syria-strike-with-mix-of-applause-and-anger/2017/04/07/b7aeb7ce-1b8c-11e7-9887-1a5314b56a08_story.html?hpid=hp_rhp-top-table-main_congress-1155a%3Ahomepage%2Fstory&utm_term=.e7baa0f11de9">argued</a> Trump needed congressional approval. </p>
<p>Who’s right?</p>
<h2>A precedent for presidents</h2>
<p>President Harry Truman began the post-World War II trend away from congressional approval in 1950, when he <a href="https://www.archives.gov/education/lessons/korean-conflict">deployed the military</a> to repel North Korea’s invasion of South Korea. Truman argued that congressional authorization was <a href="https://www.learner.org/workshops/primarysources/coldwar/docs/onkorea.html">unnecessary</a> since the intervention had been endorsed by the United Nations Security Council. </p>
<p>Fifteen years later, Congress gave a green light to military action against Vietnamese Communist forces by passing the <a href="http://www.history.com/topics/vietnam-war/gulf-of-tonkin-resolution">Gulf of Tonkin Resolution</a>. However, President Richard Nixon declined to withdraw all U.S. troops from Vietnam when Congress repealed this resolution in 1970.</p>
<p>In 1973, Congress attempted to restrain presidents from engaging in prolonged conflicts without congressional assent by enacting – over Nixon’s objection – a law called the <a href="https://www.loc.gov/law/help/war-powers.php">War Powers Resolution</a>. The law stipulates that the president can only keep military forces deployed in “hostilities” for up to 60 days – with the possibility of a 30-day extension – without a congressional war declaration or use of force authorization. </p>
<p>No subsequent U.S. president has accepted the constitutionality of the War Powers Resolution, and presidents have continued to order military operations without congressional approval. In 1983, President Ronald Reagan <a href="http://www.history.com/this-day-in-history/united-states-invades-grenada">deployed troops</a> to Grenada to overthrow a repressive Marxist regime. In 1995 and 1999, President Bill Clinton ordered air strikes against Bosnian Serb and Serbian forces to prevent ethnic cleansing in <a href="https://www.brookings.edu/articles/decision-to-intervene-how-the-war-in-bosnia-ended/">Bosnia</a> and <a href="https://www.brookings.edu/book/winning-ugly/">Kosovo</a>, respectively. None of these operations were authorized by Congress.</p>
<p>In 2011, President Barack Obama ordered <a href="https://www.nytimes.com/2016/02/28/us/politics/hillary-clinton-libya.html?_r=0">air strikes</a> against the military and government of Libyan dictator Muammar Qaddafi. This air campaign lasted about seven months, even though Congress had not endorsed it. The Obama administration <a href="https://www.washingtonpost.com/politics/obama-administration-libya-action-does-not-require-congressional-approval/2011/06/15/AGLttOWH_story.html?utm_term=.85e2d6b87351">argued</a> that the operation was not bound by the War Powers Resolution’s 60-day limit because the absence of U.S. troops on the ground in Libya meant the U.S. had not entered into hostilities. </p>
<p>Obama also launched the U.S. military campaign against the Islamic State (IS) without gaining direct congressional assent for the campaign. In this case, the administration <a href="https://www.nytimes.com/2014/09/13/world/americas/obama-sees-iraq-resolution-as-a-legal-basis-for-airstrikes-official-says.html">maintained</a> that the campaign was covered by Congress’ 2001 authorization targeting individuals responsible for the Sept. 11 attacks and its 2002 authorization of the use of force against Iraq.</p>
<h2>Congress’ end of the bargain</h2>
<p>Congress, for its part, has contributed to the lack of constitutional clarity concerning some military operations by declining to vote on whether to authorize them. For <a href="https://fas.org/sgp/crs/natsec/R43760.pdf">three years</a>, legislation has been pending before Congress that would provide direct authorization for the use of force against IS. Yet, congressional leaders have not brought this legislation to the floor of the House or Senate. In such contexts, the argument for a president acting unilaterally becomes all the more reasonable.</p>
<p>In the end, the United States will be best served if the president is granted discretion to deploy the military without congressional approval when quick action is needed to address a grave security threat or imminent humanitarian disaster. But Congress should weigh in directly on any deployments that might be long-lasting and carry major costs. By following this model, American leaders would stay true to the basic vision of the founders, while recognizing important distinctions among military operations in their urgency, importance and risks.</p><img src="https://counter.theconversation.com/content/75959/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jordan Tama does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Are Trump’s missile strikes against Syria constitutional? An expert on Congress and foreign policy provides a brief history of how the separation of war powers has blurred over time.Jordan Tama, Assistant Professor of International Relations, American University School of International ServiceLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/725642017-02-16T20:33:58Z2017-02-16T20:33:58ZFive lessons Trump could learn from Lincoln<figure><img src="https://images.theconversation.com/files/157196/original/image-20170216-32702-110xmzq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lincoln in 1858; Trump in his official White House portrait, 2017.</span> <span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Abraham_Lincoln#/media/File:Abraham_Lincoln_by_Byers,_1858_-_crop.jpg/https://en.wikipedia.org/wiki/Donald_Trump#/media/File:Donald_Trump_official_portrait.jpg">Abraham Byers/unknown</a></span></figcaption></figure><p>How will Donald Trump observe Presidents Day? </p>
<p>Will he have the inclination or take the time to read about or reflect on the qualities of our greatest leaders? </p>
<p>Given how busy Trump is issuing executive orders, fighting with the judiciary, managing the scandal surrounding the dismissal of his national security advisor, becoming acquainted with world leaders and tweeting, the answer is probably no. </p>
<p>As a historian who has studied presidential leadership for decades, perhaps I can save him some time by suggesting a few things he might learn from the first Republican president, Abraham Lincoln.</p>
<h2>Lesson 1: Grow a thick skin</h2>
<p>Lincoln was more reviled than <a href="http://savasbeatie.com/books/LINCOLN_book.htm">any American president</a>. The <a href="https://www.uncpress.org/book/9781469620152/a-dangerous-stir-/">opposition press</a> described him as a “fungus from the corrupt womb of bigotry and fanaticism,” a “worse tyrant and more inhuman butcher than has existed from the days of Nero” and “a <a href="http://www.simonandschuster.com/books/Lincoln-and-the-Power-of-the-Press/Harold-Holzer/9781439192726">vulgar village politician</a> without any experience worth mentioning.” Even Lincoln’s now-classic Gettysburg Address <a href="https://www.questia.com/library/119420915/abraham-lincoln-a-press-portrait-his-life-and-times">was derided</a> as a display of “ignorant rudeness.”</p>
<p>These attacks stung, but Lincoln refused to take the bait. “No man resolved to make the most of himself, can spare time for personal contention,” <a href="http://quod.lib.umich.edu/l/lincoln/lincoln6/1:1116?rgn=div1;singlegenre=All;sort=occur;subview=detail;type=simple;view=fulltext;q1=a+dog">he wrote</a>. “Still less can he afford to take all the consequences, including … the loss of self-control.” Lincoln realized that getting into the gutter would diminish his stature, distract the public from important issues and burn crucial political bridges. “A man has no time to spend half his life in quarrels,” <a href="http://www.mrlincolnswhitehouse.org/residents-visitors/visitors-from-congress/visitors-congress-henry-winter-davis-1817-1866/">he advised a political ally</a>. “If any man ceases to attack me I never remember the past against him.”</p>
<p>If Trump doesn’t dial back his attacks – which so far have included invectives against Meryl Streep, Alec Baldwin, Madonna, John Lewis, Charles Schumer, John McCain, Lindsey Graham, a growing list of federal judges and the CIA – he will appear more petulant than presidential.</p>
<h2>Lesson 2: Engage your critics strategically</h2>
<p>Lincoln occasionally responded to critics – but always civilly, always strategically. </p>
<p>When, in 1862, Republican editor Horace Greeley charged that Lincoln’s unwillingness to end slavery sabotaged the Union war effort, Lincoln replied in a public letter. He had already decided to issue the Emancipation Proclamation, but gave the impression that he was agnostic on the matter. With respect to slavery, Lincoln told Greeley, his policies would be dictated by what best served the Union cause. By tying his position to preserving the Union, Lincoln laid groundwork for making his ultimate decision more palatable to the many Unionists – in the North and the border states – who supported slavery. He did so without insulting Greeley and other abolitionists and concluded his letter by <a href="http://quod.lib.umich.edu/l/lincoln/lincoln5/1:848?rgn=div1;singlegenre=All;sort=occur;subview=detail;type=simple;view=fulltext;q1=I+have+here+stated+my+purpose">emphasizing common ground</a>: “I have here stated my purpose according to my view of official duty; and I intend no modification of my oft-expressed personal wish that all men every where could be free.”</p>
<p>Trump has yet to absorb the lesson that in the world of presidential communications, less is more – especially when the less is carefully crafted, strategic and cultivates those whose support is needed. For Trump, that means the majority of Americans <a href="http://www.cnn.com/election/results/president">who didn’t vote for him</a> and who have given him the lowest approval ratings of any incoming president <a href="http://www.newsweek.com/trump-executive-orders-majority-disapproval-poll-551873">in modern times</a>.</p>
<h2>Lesson 3: Be informed and ask questions</h2>
<p>Aside from a brief stint as a militia volunteer in the 1830s, Lincoln had no military experience. Nevertheless, he was a war president and helped to develop the grand strategy that crushed the Confederacy. </p>
<p>How did he do it? By reading extensively on military strategy and tactics and meeting frequently with his secretary of war and generals, asking them questions and discussing military operations. <a href="http://quod.lib.umich.edu/cgi/t/text/text-idx?c=acls;idno=heb01656">He spent countless hours</a> in the War Department telegraph room, reading and sometimes responding to telegrams from the front, and often visiting armies in the field. While he gave the generals wide latitude, he remained curious, focused, well-informed and critical to the Union’s military success.</p>
<p>To develop effective policies on the issues he cares about, Trump must become better-informed. He should demand briefings on key issues from a variety of experts (especially those who oppose him), read them thoroughly and ask questions. Rather than <a href="https://www.washingtonpost.com/news/powerpost/wp/2017/01/10/trump-wants-lawmakers-to-replace-obamacare-very-quickly-after-repeal/?utm_term=.3e5a1866f5ae">glibly promise</a> that Republicans will quickly repeal and replace the Affordable Care Act with a plan that expands coverage, lowers costs and increases choice, he should learn about the complexities of health care and the inevitable trade-offs involved in replacing the ACA. Raising hopes only <a href="http://www.npr.org/sections/health-shots/2017/02/06/513718166/trump-congressional-gop-back-off-from-immediate-obamacare-repeal">to dash them in fairly short order</a> is neither good leadership nor good politics.</p>
<h2>Lesson 4: Adapt, change and grow</h2>
<p>Consider Lincoln’s position on slavery, race and citizenship. Lincoln opposed slavery, but he established restoration of the Union – not emancipation – as the Union’s war aim. </p>
<p>When he became president, Lincoln knew few African-Americans, probably saw them as inferior to whites and occasionally told racist jokes. As president, he listened to and learned from abolitionists who were among his most outspoken critics. They included radical Republican Sen. Charles Sumner and African-American abolitionist Frederick Douglass, whom Lincoln collared after his Second Inaugural Address to ask his opinion of the speech. Critics of slavery helped Lincoln understand how emancipation and enlistment of black troops would undermine the rebellion, leading him to embrace emancipation and reframe the Union’s war aims to include liberty as well as Union. Abolitionists also helped him understand that African-American citizenship was essential to make the war’s promise of “a new birth of freedom” a reality. In a speech delivered three days before his death, Lincoln embraced the radical position that blacks who had served in the military or were literate should have <a href="http://books.wwnorton.com/books/The-Fiery-Trial/">the right to vote</a>.</p>
<p>Trump comes to office with an understanding of issues that reflects his campaign rhetoric. He cannot hope to leave this country better than he found it unless he listens to critics as well as supporters on a wide range of issues. Let’s start with terrorism. He may have proposed a <a href="http://www.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/">Muslim ban</a> during the campaign, but now’s the time to develop a nuanced view of Islam at home and abroad and listen to <a href="https://www.washingtonpost.com/world/national-security/jihadist-groups-hail-trumps-travel-ban-as-a-victory/2017/01/29/50908986-e66d-11e6-b82f-687d6e6a3e7c_story.html?utm_term=.02b7de954e61">national security experts</a> who understand the <a href="http://www.npr.org/2017/01/31/512592776/will-trumps-refugee-order-reduce-terror-threats-in-the-u-s">perils of targeting Muslims</a>.</p>
<h2>Lesson 5: Use words carefully</h2>
<p>Lincoln had less than a year of formal education, yet he was among our most literate presidents. A voracious and eclectic reader, he appreciated the beauty and power of language and used his understanding to become a formidable writer. In the age of the telegraph, presidents communicated with the nation through the written word – speeches, open letters and state papers published in the press. </p>
<p>Lincoln worked hard to become a writer. As president, his precision and eloquence enabled him to make the case for the Union and the unimaginable sacrifices its preservation required. Lincoln defined the war as a “people’s contest,” a struggle to vindicate the efficacy of America’s founding principle – the right of people to govern themselves. His formulation of the principle evolved from the 1830s through his presidential addresses and achieved its most powerful expression in the Gettysburg Address. Skillfully weaving together emancipation and self government, <a href="http://quod.lib.umich.edu/l/lincoln/lincoln7/1:40?rgn=div1;singlegenre=All;sort=occur;subview=detail;type=simple;view=fulltext;q1=four+score">he explained to a war-weary public</a> that their sacrifices would forge “a new birth of freedom” that assured that America’s founding principle – “government of the people, by the people, for the people” – would “not perish from the Earth.”</p>
<p>While Trump enjoyed vastly more formal education than Lincoln, he is neither <a href="https://newrepublic.com/minutes/133566/donald-trump-doesnt-read-books">a reader</a> nor a writer. He connects with supporters who find his barroom-like riffs <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/01/27/this-former-senator-totally-gets-president-trumps-appeal/?utm_term=.9bbb70389c53">“authentic” and honest</a>. But as a candidate who lost the popular vote decisively, he must reach beyond his base to succeed. To do so, he must use language more precisely and persuasively. Should he continue to issue poorly crafted policy statements – such as his executive orders banning entry to the U.S. by residents of seven predominantly Muslim nations – he will spend his time <a href="https://www.washingtonpost.com/national/health-science/trump-gives-no-sign-of-backing-down-from-travel-ban/2017/01/29/4ffe900a-e620-11e6-b82f-687d6e6a3e7c_story.html?hpid=hp_hp-top-table-main_banledeall-917am%3Ahomepage%2Fstory&utm_term=.3b2a7c502969">walking back his positions</a>, <a href="http://www.politico.com/story/2017/02/3-key-trump-mistakes-that-led-to-travel-ban-court-defeat-234884">defending ill-conceived actions in court</a> and <a href="http://www.politico.com/story/2017/01/trump-refugee-republicans-234326">undermining confidence in his competence</a>. If he continues to appeal to fear and narrow self-interest rather than forge a vision rooted in shared values and aspirations – as did Lincoln, FDR and Reagan – his presidency will fail and the country will suffer. Here again he should listen to Lincoln, who appealed to “the better angels of our nature” in the face of secession and imminent war.</p>
<p>If Trump wants a reset that will help him – and the country – succeed, there is no better guide than POTUS 16.</p><img src="https://counter.theconversation.com/content/72564/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Donald Nieman receives funding from the National Endowment for the Humanities and the American Council of Learned Societies.</span></em></p>The most hated president in US history could teach our new leader a few things.Donald Nieman, Executive Vice President for Academic Affairs and Provost, Binghamton University, State University of New YorkLicensed as Creative Commons – attribution, no derivatives.