One of the many extraordinary things about the presidential campaign that just ended was Donald Trump’s disdain for the rule of law, the idea that everyone is accountable to the law and no person, not even the president, can set aside the law or subordinate it to a political agenda.

Trump promised to bring back torture and order the killing of terrorists’ family members, at one point declaring that the military would have to carry out his orders even if they recognized it would mean violating criminal law. He threatened to turn federal law enforcement into a mechanism for settling political scores. He suggested that he would unilaterally decide when to order the use of military force, in defiance of the constitutional requirement that Congress approve military action unless the United States faces a sudden attack that leaves no time for legislative authorization. He presented himself as a “strong man” who would “deport more than 10 million people currently living in the United States, bar Muslims…from entering the country, shut down mosques, and perhaps set up a national database to track Muslims.”



Even members of Trump’s own party recognized that Trump’s rhetoric suggested his presidency could threaten the rule of law. However, Republican leaders in Congress said that they would act as a check on Trump’s power in office. Senate majority leader Mitch McConnell noted that a President Trump would have legal advisers and “others who point out that there’s certain things you can and can’t do.” Senator John McCain argued that the American system of constitutional democracy is designed to ensure no one has unlimited power, observing that “We have a Congress. We have the Supreme Court.”

Read more: This disturbing presidential election shows that democracy needs help

How President-elect Donald Trump could impact the economy

In theory, McCain is correct. The Constitution does create a system of checks and balances designed to prevent a concentration of power in the hands of any one person or branch of government. Congress has significant powers available to it, especially when it comes to national security—including the power to declare war, ratify treaties, regulate trade with foreign countries, define violations of international law, and raise and support armies and navies. On paper, presidents have very little room to act unilaterally in the name of national security, at least outside of the emergency context.

But these constitutional safeguards are not self-executing. They depend on members of each branch of government holding the other branches accountable and setting limits on power.

Congress is best positioned to act as a check on presidential national security power, in large part because of its own constitutional sources of power in this area. In practice, however, Congress has often abdicated its constitutional responsibility to set limits on presidential power, passively deferring to presidents who push past constitutional boundaries. This is a pattern that has applied without regard to party. Congress controlled has acquiesced to assertions of power by both Republican and Democratic presidents, from Harry Truman’s decision to unilaterally go to war in Korea to Ronald Reagan’s unilateral action in Libya and Bill Clinton’s decision to order airstrikes in Bosnia.



Recent history ought to make us question whether Sen. McCain and other Republicans and Congress will, in fact, set meaningful limits on President Trump’s power. Consider the Obama administration. Republican critics assailed President Barack Obama as a dictator and sought to rein in his domestic actions, including the president’s decision to defer deportation of certain undocumented immigrants. But on the national security side, they were often deferential. In 2011, when the Obama administration unilaterally ordered military action against the Gaddafi regime in Libya, Congress passively acquiesced. In 2014, when the Obama administration ordered the use of military force against ISIS, Congress declined to weigh in.

If Republicans allowed a Democratic president such broad discretion, it seems possible they would take a similar approach when it comes to a Trump administration. Yet there are some hopeful precedents. For example, in 2013 members of Congress successfully forced President Obama to seek legislative approval before ordering military action against the Assad regime in Syria.

When members of Congress have the will to act, the Constitution provides them with the tools necessary to ensure presidents do not exercise unchecked plenary power. The question that remains to be answered is whether Republican members of Congress will decide to play their constitutional role when it comes to setting limits on President Trump’s national security power.

Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. His latest book,Power Without Constraint: The Post 9/11 Presidency and National Security, was published in May 2016 by the University of Wisconsin Press.