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Sovereignty and the New Executive Authority$
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Claire Finkelstein and Michael Skerker

Print publication date: 2018

Print ISBN-13: 9780190922542

Published to Oxford Scholarship Online: November 2018

DOI: 10.1093/oso/9780190922542.001.0001

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The Imperial Presidency and the Rule of Law

The Imperial Presidency and the Rule of Law

(p.145) 8 The Imperial Presidency and the Rule of Law
Sovereignty and the New Executive Authority

Claire Finkelstein

Oxford University Press

The Presidency of Donald Trump poses a deepening challenge to democratic theory: How could a democracy designed so carely around rule of law governance be so lacking in resources against a president who seems determined to dismantle the rule of law? The country seems to be largely helpless in the face of Trump’s repeated challenges to the limits of executive authority and his rejection of both legal and customary constraints on presidential power. The challenge is perceived as so serious that some have charged we are in the process of instituting an “imperial presidency,” an accusation that at present seems compelling. The mistake, however, lies in thinking that this presents a new situation. The current expansion of executive authority did not start with the current administration. Since 9/11, there has been a steady augmentation of presidential power relative to the other two branches of government, with the result that the other branches have become steadily weaker relative to the executive branch. As the drama of the Trump presidency unfolds, we are additionally confronted with the impact of personal character traits on the rule of law. We struggle to disentangle the person of the president from the office of the presidency and to discern those aspects that are critical to the preservation of democratic values. This chapter will attempt to diagnose current challenges to the rule of law in light of both history and character, as well as to present recommendations for preserving rule of law values in a constitutional democracy.

Keywords:   Donald Trump, character, rule of law, constitutional democracy, imperial presidency

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