FROM POLITICO | OCTOBER 24, 2017
And why that’s great news for American democracy.
It’s fashionable these days to compare our present to the Gilded Age: rising inequality, labor struggling while capital thrives, an astonishingly wealthy and concentrated elite appearing to amass an inordinate amount of power. But a stark difference between our era and the last decades of the 19th century is the nature of the American presidency. The novelist Thomas Wolfe memorialized the chief executives who occupied the White House in those years—Garfield, Arthur, Harrison and Hayes—as “the four lost men,” presidents whose footfall is barely remembered.
And indeed, they were forgotten, and, in many ways, weak, presidents. That began to change, rather dramatically, with the rise of Theodore Roosevelt, who revived the office through sheer force of personality and will, and the onset of two world wars that demanded a strong executive. Aside from a brief retreat in the 1920s (Warren Harding, anyone?) and a congressional surge in the late 1970s after Nixon and Watergate, the scope and breadth of presidential power grew relentlessly in the 20th century and into the 21st.
Then came Donald Trump.
Judging from the amount of attention paid to his every pronouncement, Trump stands at the apex of more than a century of accreting presidential power. Routinely, though hyperbolically, referred to as “the most powerful man in the world” by virtue of his office, Trump has become the singular focal point of American politics and, arguably, American life. Though precise measurements are a challenge, no one man—with the possible brief exceptions of Richard Nixon in the months leading up to his resignation in 1974 and Bill Clinton during the height of impeachment scandal in 1998—has so dominated the national discussion.
And yet, judging from what is actually happening rather than by what is being said, the net effect of the first year of the Trump presidency has not been to augment the considerable powers of the president but to decrease them. Trump may have inherited an executive office at the height of its historical powers, but if he continues on the present path, he will leave office with those powers much diminished. And while the means will have been messy and unpleasant to witness, the result will be to restore a modicum of balance to the American republic and to a federal government that has seen an executive branch become far too powerful, to the detriment of our democracy and prosperity.
The presidency was never meant to be this mighty. America’s government was established with three branches, meant to exercise distinct powers in separate areas. The Constitution establishes the lines between those, and offers some guidelines about how powers overlap. Given that most of the Constitution is spent delineating the powers of the legislative branch, it’s clear the Founding Fathers saw Congress as the most important, and indeed, that argument has been going on for many years. It is inarguable that by design, the executive branch was meant to have constrained powers relative to kings and tyrants who had ruled societies from time immemorial.
Though it’s a mistake to festishize the intent of framers who lived in a world rather different from our own, the powers of the executive increased over the centuries in a way that certainly violates the spirit of the Constitution if not the letter. The fracturing of Congress in the past decades into hardened squabbling camps has combined with near-permanent foreign conflict, a ballooning military establishment and the post-New Deal regulatory state to transform the executive branch into the first among equals of the federal government. When it comes to war or domestic surveillance or regulatory policy, Congress hardly even has the expertise to exercise its own authority, let alone the will. (Note the recent complaints from senators who had no idea that the United States has hundreds of troops in Niger.) The Founding Fathers would hardly recognize this colossus as their own invention.
The irony of Trump is that his autocratic and expansive ambitions for the presidency are weakening the office instead of strengthening it. Courts were active during both the Obama and Bush administrations in response to perceived presidential overreach ranging from privacy in the face of metadata sweeps to expansive interpretations of environmental regulations. But courts have acted even more swiftly to halt Trump over his repeated attempts to ban designated travelers. His slew of executive orders is designed mostly to undo regulations, which may be welcome or not,but which nonetheless has the effect of decreasing the very power that he seems to crave; the federal government is nowhere more involved in the minutiae of citizens’ lives than in implementing and enforcing the thousands of regulations that have been issued in the past few decades. In a related vein, determined to unwind what he sees as the excesses of past administrations, Trump has refused to make hundreds of political appointments, the net effect of which is to hobble not just understaffed agencies but his own ability—and that of the executive branch as a whole—to implement policies and directives to his liking.
Recent weeks have seen the theater of presidential power on full display. First, Trump roundly denounced the nuclear deal concluded by President Barack Obama and the international community with Iran, refused to recertify it, and called on Congress to revise it. Then, the administration halted its $7 billion in Obamacare subsidies that closed some of the payment gap for lower-income families. That prompted not only lawsuits from 18 state attorneys general, Democrat and Republican, with possible injunctions to follow but also spurred two dozen senators in both parties to sign on for a bipartisan fix to the Affordable Care Act.
Those moves follow the administration’s decision, announced by Attorney General Jeff Sessions, not to continue with Obama’s 2014 program on deferring immigration enforcement for 800,000 people brought illegally to the United States as children. In making that decision, which came with a six-month delay, Trump subsequently called on Congress “to legalize DACA.”
The reaction to each of these decisions was heated and partisan. Opponents denounced the administration for all manner of transgressions; supporters cheered that Trump was swamp-draining and America-great-making. The morality and motives were debated and probed, all within the context of Trump’s use or abuse of the powers of the presidency.
Yet each of those moves drastically undermined the implied authority of the executive branch. Rather than asserting, as President George W. Bush and Obama had done, that the presidency had this or that power, Trump simply announced that the executive branch would no longer exercise powers that had been creatively extended under the prior administrations and demanded that Congress solve the problems it should have solved all along.
It is not entirely clear whether Trump, who seems to delight in playing the part of the decider in chief, fully grasps that he is devolving presidential powers rather than seizing them. But it is happening nonetheless.
And the president seems poised to stumble into another diminishment of his own authority, as he moves to fulfill a campaign promise: taking the United States out of “bad trade deals,” such as the North American Free Trade Agreement. Trump has long warned that he might have to pull the United States out of the pact, and his trade representative, Robert Lighthizer, took such a hard stance on raising the quota of U.S.-made parts in automobiles as well as other issues that the recent talks among Mexico, Canada and the U.S. were suspended until early next year.
This would seem another area of firm exercise of presidential might. Yet, not only is it unclear that the American president could unilaterally terminate the agreement, it is increasingly clear that Congress may not allow him to. Had Trump acted precipitously, and just announced a withdrawal from NAFTA, Congress and those opposed to withdrawing would have had to scramble to use the courts to force a halt to any dismemberment of the agreement. But now, bipartisan talks are well underway in Congress to head off executive action before it even happens.
Should there be a major domestic terror attack or an outbreak of war on the Korean Peninsula, it is highly likely that Trump will greatly expand the authority of the presidency—just as Franklin D. Roosevelt did in World War II, and Bush did after 9/11. Absent that, however, Trump is wielding the considerable powers of his office in order to … decrease the considerable powers of his office.
And in the long run, that is a remarkably good thing. Issues such as immigration law, trade policy and its relation to domestic jobs and wages, and to what degree and in what way health care is a right should be the purview of the legislative branch—the part of the federal government most directly connected to the democratic wishes of American citizens. Yes, Congress is chaotic and often incapable, but its failing cannot and should not have been the predicate for the unhealthy extension of presidential reach. That way lies, if not tyranny, then certainly a level of control by the executive that is barely democratic, less accountable and potentially serving only its own interests for more power—with little regard for collective prosperity, freedom and genuine security, economic above all.
Trump, in fact, is exposing why the executive branch is not the best way to make major policy: Its edicts and orders can be undone by the next president or by Congress quite easily. Only legislation can embed through law changes that we collectively undertake. In a nation of laws, that is the only tenable way. The presidency is ultimately the rule of man (or, someday, woman); the country’s saving grace is to be a nation of laws. How odd that a man such as Trump, whose knowledge and respect for law appears thin at best, may be the agent of change reversing the federal government’s long tilt toward the presidency. But how fitting that a man who seems to so love power may be the one to strip the presidency of much of it. And how much better we will be as a result.