Before hurricanes took over the news cycle, two other stories
absorbed the country's attention — President Donald Trump's chest-thumping
exchange with Kim Jong Un, and his decision to end Deferred Action for
Childhood Arrivals (DACA). In an odd way, these issues are alike.
Let us begin with the potential nuclear conflict. Asked by a
reporter during a trip to church whether he would attack North Korea, the
president replied, "We'll see." As though he just hadn't made up his
mind yet.
Trump is not the first president to act as though he has the
power to start a war. But he doesn't. Article I of the Constitution says,
"The Congress shall have power ... to declare war."
The framers did this on purpose. Because the burdens of war
(death and taxes) are felt by the people, the Constitution requires their
representatives to approve the undertaking.
We had a painful reminder of this in another presidential
venture, the Vietnam War. When it was over, Congress passed the War Powers
Resolution, which insists on congressional approval whenever the president
commits armed forces to real or imminent hostilities.
Consider now the decision to end DACA. Most of the media, and
both Republican and Democratic leaders in Congress, urged the president to
extend the program.
But Article I of the Constitution says this too is the job of
Congress, not the president: "The Congress shall have power ... to
establish an uniform rule of naturalization." It's the president's job,
according to Article II, to "take care that the laws be faithfully
executed," not to suspend their operation, or make his own.
We're all tempted to ignore these rules when the president is a
member of our own party, or wants an outcome we favor. In 2010, when he was
first asked to make a unilateral change in the immigration laws, President
Barack Obama said, "I am not king. I can't do these things just by
myself." But by 2012, he had grown impatient with Congress and suspended
the law for childhood arrivals.
Five years later, I found myself rooting for his successor to
extend DACA. It seems both merciful and just to protect young people who were
brought here by their parents, went to school, served in the military, held
jobs, obeyed the laws and love America. What does it matter who makes the rule,
so long as the rule is just?
It does matter. The president is not some Plantagenet monarch
whose will or whim governs the nation. The kings of England historically had
such power. John Locke described it thus: "This power to act according to
discretion for the public good, without the prescription of the law and
sometimes even against it, is that which is called 'prerogative.'"
If he got up in the morning and felt like it, the king could
suspend the laws, levy taxes, take the nation to war. If we give our president
prerogative powers, he too will exercise them on Kim Jong Un as well as DACA.
The constitutional history of England is a slow march away from
this style of government. The Glorious Revolution made the king subservient to
Parliament and limited his prerogative to suspend the laws. The American
Revolution gave us a Constitution that dispensed with the notion of prerogative
power altogether.
Congress can make DACA permanent, and it should. For too long,
its members have preferred controversy over compromise, refusing to do what
most Americans want in order to please their bases.
Urging the president to exercise prerogative power gives Congress
a happy outcome without the attendant responsibility. But it hands back to the
executive a responsibility that it took centuries to take away from him.
Garvey is president of The Catholic University of America
in Washington.