The judiciary restrains the U.S. President’s exercise of power

Donald Trump’s rise to power has roused concerns over how freely he can put his intentions into practice. Docent of North American studies in the University of Oulu, Ari Helo, answers questions on the U.S. President’s power and its limits.


The deconstructive political dialogue in the United States is not something Trump has creates, says Ari Helo. “Democrats share the blame, as they have mocked their opponents for decades as hard as value conservatives have mocked them. President Obama, too, said openly derogatory comments on both Putin and Trump.”

How large are the prerogative powers of the U.S. President?

”They are quite large. The president has much of the power of a prime minister in the European system: legislative proposals usually come from the president’s office, and he has a say in the drafting of the federal budget. The president also signs the laws prepared by the Congress, and he can slow down the legislation work of the Congress with his veto right.”

”These days the problem is rather that the Congress cannot make laws because the Democrats and Republicans are far apart, and a minority in the Congress can usually prevent changes in the law. This has led to the country being run with presidential decrees. Decrees are not mentioned in the constitution, but they have been used since George Washington. They give the executive power the right to clarify by decrees how officials should practice executive power and operative laws.”

”As the commander in chief of the armed forces, the president has the power to start limited military operations around the world without the approval of the Congress in advance. He also appoints Supreme Court justices for life, which is an influential privilege in politics.”

How can the president’s use of power be restricted?

”The judiciary has the best chances for that, because it can start inspecting laws and courses of action, if there is reason to suspect they are non-constitutional. Law courts are independent in the United States, and they monitor the legality of authoritative actions.” 

”Court cases against Trump have already started over his decrees on turning back people from certain Muslim countries. Many more lawsuits against the actions of the Trump administration are to be expected.”

”Restrictive legislative actions take time because the bicameral Congress is in disagreement, and because the federation is a huge administrative system. Also, the President’s government does not need the approval of the Congress, but it is an independent advisory cabinet of the President.”

What loopholes does the system leave for president’s arbitrariness?

”American history has examples of creative use of power. President Franklin D. Roosevelt, for example, decreed laws restricting businesses, and law courts declared many of them unconstitutional, but the president and the Congress quickly made new, similar laws, and therefore the new practice remained before appeals in different courts produced judgements agreeable to the opposition. There are many ways to impose administrative decrees and prohibitions, but their finality is always deniable.”

”Political researchers have also emphasized the President’s media power. He is seen not only as the holder of executive power, but also as the face of the country all over the world, and his influence is mainly communications power.”

Could Donald Trump increase presidential prerogatives towards autocracy?

”No he cannot. Changing the constitution of the United States requires not only the acceptance by the Congress, but also the ratification by all states. If the president exceeds his authority, he can always be impeached. In that case, the Senate acts as court of justice under the President of the Supreme Court. This threat is real to Trump. Even though the Senate has a Republican majority, he has a large opposition even there.”

”The constitution is built on the so-called mixed administration, where legislative, executive and judicial power control each other. Legislation produces obstacles to misuse of executive power, the president for his part controls legislators, and they are especially controlled by the Supreme Court, which can investigate the constitutionality of any law. One may ask, though, if courts were strict enough in guarding privacy in regard to Patriot Act and other spying laws.”

”Trump’s hot temper should also be considered. Members of his cabinet are team players for a man who only plays his own game. It would be no wonder if such a team breaks up amid constant quarrelling.”

How well do you expect Trump to succeed in his intentions, such as overturning Obama’s health care reform?

”He is already doing this. However, the system is so complex that it is a question of crumbling the public health care system piece by piece. He might also dismiss a large number of federal officials, which he would do to please his voters who hate federal bureaucracy.”

How about cutting UN funding or withdrawing from climate commitments?

”This will probably be a success with the republican-controlled Congress, because republicans do not generally believe in UN’s authority, and they are mostly climate sceptics.”

What will come of the customs, import restrictions and the regenerative infrastructure projects which Trump has been sketching?

”There may be temporary restrictions on trade, but they do not fit terribly well with the long term economic strategy of Trump or the Republicans. In the United States there are hopes for the economy to improve both domestically and abroad, because American companies, too, need export markets.”

”The infrastructure projects have raised more enthusiasm than Trump’s talk has given cause for, as he has only referred to these kinds of options in passing. Another question is whether Republicans intend to get a new huge debt for the federation to carry out projects, as they themselves have prevented the Democrats from doing anything for the infrastructure.”

Text: Jarno Mällinen

Last updated: 3.2.2017