MICHEL MARTIN, HOST:
We wanted to spend some time talking about presidential power. How much should a president have? In recent weeks, there has been a lot of focus on how this president wields authority, and not just what he boasts about but what he actually does. The question arises again because of recent actions taken by the Justice Department to remove a high-profile prosecutor who has been investigating the president's allies and to withdraw a guilty plea entered by another.
But the question has arisen long before this president, so we've called somebody who has previously raised objection to the expansion of presidential authority. We're talking about the former vice presidential candidate and Virginia Senator Tim Kaine. Senator Kaine is a Democrat and has been a leading voice raising objections about executive authority under both the Obama and Trump administrations. And he is with us now.
Senator Kaine, welcome back. Thank you for joining us.
TIM KAINE: Good to be back with you, Michel. Thanks.
MARTIN: Well, the particular reason we called you is obviously the president's moves through the Justice Department, I would say, the Justice Department removing this prosecutor in the Southern District of New York, the president backing him up on that. And this has raised questions about whether this - the Justice Department has been politicized. But, as you certainly know, the concern has been that this president has been wielding executive authority in a manner that just was not intended by the founders. And this is just seen as yet another example of that.
And there have also been a number of high-profile court decisions this week that raise these questions as well. So the first question I have is, how long-standing is your concern about this? And it is not limited to the Trump administration.
KAINE: Oh, not at all. In fact, there are areas where I think President Trump is grabbing congressional power that really doesn't rightfully belong to the president, but he's doing it in ways that Democratic and Republican presidents have done it. And then there are some things that he's doing that are very unique, that he's done that nobody else would have even thought about doing.
In the former, President Trump asserts, as did President Obama, President Bush and many presidents, that they can take the nation to war without the vote of Congress, even, though Article 1 clearly says you need a vote of Congress to initiate war. And then a second power that many presidents have taken with congressional approval is the power to do trade wars and impose tariffs. Under the Constitution, trade is for Congress, not the president.
In both of these areas, though, I blame Congress more than the president. I think the presidents take these powers, but Congress has basically just allowed them to. And I've been trying since I got to Congress in 2013 in the Senate - I've been trying to get Congress to reclaim some of these powers.
MARTIN: Well, you have succeeded as, you know, few have in this current, you know, polarized era in getting some Republican support to express objections, specifically when - in areas of military action, where you feel that the president has overreached. But those have been very rare occurrences. I mean, why do you...
MARTIN: ...Think that is?
KAINE: Well, I think war is one that really causes people to look in the mirror - you know, the prospect of another war in the Middle East. The two times I've used a procedure under the War Powers Resolution to try to rein in the president, one dealing with the U.S. participation in the civil war in Yemen, and second, the prospect of another war in the Middle East against Iran, I do think Republicans are, like, you know, war's a big deal. And I'll get eight to 10 Republicans to join with Democrats to try to put checks against the president.
But in many other areas, as you point out, the president is taking money out of the defense budget to use for a border wall. We can't get Republicans to say, hold on a second - Congress is the appropriator. The president often won't allow witnesses to come and testify before congressional hearings. The president is doing some very, very dangerous things, in my view, that are even out of character with what any other president has done.
MARTIN: The courts have objected - I mean, at the Supreme Court, President Trump's authority was challenged when the court ruled to extend, at least for now, the Deferred Action for Childhood Arrivals program, which allows people brought to the U.S. without authorization as children to stay and work in the United States.
And the president - and the U.S. Court of Appeals for the Ninth Circuit just on Friday ruled that the administration's use of Pentagon funds to build a wall along the U.S.-Mexico border is illegal. So two instances in which the courts have stepped in - I mean, do you interpret that as a sign that the third coequal branch of the government is trying to reassert authority?
KAINE: I believe so, although it's a mixed sign. You know, the border wall case, the Ninth Circuit said the president couldn't take funds from the military to use for a non-military emergency. The Fifth Circuit, though, has held the opposite. But, Michel, even if the courts - the Article 3 branch is exercising its prerogative, the Congress shouldn't be allowed to abdicate its responsibility. This - you know, I want a Congress that fully occupies Article 1 and a president who fully occupies Article 2 and courts that, you know, do what they need to do.
But I sometimes worry if I go to colleagues on the Armed Services Committee, Republican colleagues, and say, wait. We just appropriated this money for the Pentagon. You don't want to let this president just take it willy-nilly away to use it for something else. I think if they say, well, we'll let the courts figure it out - no, we need to figure it out.
I - in some ways, while I'm critical of presidents for taking on these powers that aren't really theirs, I'm more critical of Congress. When Congress abdicates, we just allowed this to happen. And Congress has been abdicating, and frankly, it's been a bipartisan problem for too long.
MARTIN: If a Democrat takes office next year, isn't there going to be pressure from Democrats to take aggressive moves to counteract things that this administration has done?
KAINE: Yeah. You would certainly be right to worry about some situational ethics where the people complaining on my side about President Trump would suddenly turn a blind eye to a Democratic president doing some stuff. And look. When I was raising real concerns about President Obama's decision to unilaterally engage in military activity, Democrats in my own Senate caucus were basically yelling at me and telling me to knock it off.
However, here is something I see. The Democratic nominee who I believe will be president is Joe Biden. He was in the Senate for 30 years. This is a guy who really understands the Article 1 branch. Now, he's going to want to be a full Article 2 president for sure. And he'll want to use executive orders, as presidents have, legitimately. But I do think that a Vice President Biden will have a completely different attitude if he's president - he'll have a completely different attitude toward the role of the article on branch than President Trump does.
MARTIN: That was Senator Tim Kaine. He's a Democrat from Virginia. Senator Kaine, thanks so much for talking to us once again.
KAINE: Yeah, Michel - so glad to do it. Look forward to talking soon.
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