Donald Trump and Executive-Branch Discretion

Ann Coulter expressed a disdain for populism in her book “Demonic” (“My name is Legion, for we are many.”). She often contrasts the French and American revolutions, as mob rule versus rule of law. Coulter argues those who hand their fate to the mob take a wolf by the ears, and often end up in the guillotine.

Mob rule will always be popular because that is almost its definition, whatever is popular. For this reason, executive-branch discretion is often dressed up as democracy. The idea is if an executive-branch official is doing something wrong, the majority has the force to replace him with someone else. This is direct democracy, rather than rule of law.

The clearest recent expression of this was in Grants Pass v. Johnson: “A handful of federal judges cannot begin to match the collective wisdom the American people possess in deciding how best to handle a pressing social question like homelessness… The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.”

The correct reason for executive-branch discretion has never been because it is virtuous or because the mob is wise. It is because there is not any more virtuous actor to replace it with. The reason the President is immune to assassinate his rivals, is not because the judicial branch is not allowed to select against assassination. It is because the judicial branch being allowed to select the actions of the executive branch would not prevent assassination, it would just make the judicial branch the executive branch, and tangle up who gets to assassinate whom.

When the Supreme Court rejected its jurisdiction to compel an executive-branch officer to take an action in Marbury v. Madison, it was rooted in the idea that making the judicial branch also the executive branch, would not improve the behavior of the executive branch. Both judges and presidents are awful evil people, as is the 51% majority, and the only way to mitigate it is to divide up power as much as possible.

Donald Trump has recently complained that he has been prosecuted not because he broke the law, but because it is the political will of the majority of constituents of the prosecutor. Trump has been in politics for more than eight years. Nowhere in that time has Trump advocated dividing up power, creating more checks and balances whether in federal courts or wherever, to prevent the executive branch proving any unpopular person guilty.

Rather Trump himself advocates for the same process he opposes, executive-branch discretion to pander to the will of the mob. As Coulter said, those who advocate for rule by the irrational mob channeled through the executive branch as Trump does, will themselves end up on the guillotine.