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The civic education of the Trump presidency. A thread. 1/
My grad school advisor loved to say SCOTUS confirmations, impeachments, and other high-profile constitutional events were good, b/c they educated the public on how our system works.
The entire Trump presidency, to date, has been a similar civic education. Let’s tour 3 lessons.
The entire Trump presidency, to date, has been a similar civic education. Let’s tour 3 lessons.
Lesson #1. We have statutorily created a very powerful presidency, perhaps a lot more powerful than anyone intended.
In comparison to other presidential system, the U.S. presidency is weak; there’s no unilateral authority to appoint ministers or judges, no absolute veto, no way for POTUS to force votes in the legislature on his agenda, and ministries answer jointly to POTUS and the legislature.
For the first 150 years of our nation, the presidency remained relatively weak, as its base constitutional powers were most of what a POTUS had to work with. There was some patronage, some administration, and of course the war/foreign policy power, but not much else.
Since the 1930’s, however, Congress has increasingly empowered the presidency through statutory grants of power, and corresponding responsibilities/expectation. The modern presidency is now indisputably at the center of the government, relied on by everyone to be the driver.
The president now presides over a massive administrative state, built upon statutory authority that gives the executive wide latitude to achieve policy mandates through regulatory discretion provided under law.
What Trump has laid bare, however, is that many of those statutory powers relied on norms of reasonableness to constrain the executive; cut to their textual core, they were grants of much more power than Congress intended.
For sure, this is *NOT* just a Trump thing. All modern presidents have stretched statutory law (think Obama with TARP or DACA) and sought to maximize the governing discretion of the executive.
Trump has accelerated this—most notably via the National Emergency Act to shift MilCon approps to border wall construction and the use of a variety of Trade Acts to implement ever shifting tariffs rates.
Trump’s contribution here isn’t novel—POTUS have previously used statutes in ways no one expected (again, think TARP)—but his expansion of POTUS power in activist trade policy and, more importantly, appropriations, is a major jolt of executive power.
Congress, of course, has failsafes, notably the ability to end national emergencies. But in the post-legislative veto age, these have mostly proved ineffective except as informal tools of embarrassing POTUS.
Lesson #2. Presidential power requires skill. POTUS doesn’t own the executive branch.
Sitting within this statutorily powerful but constitutionally weak presidency, Trump has proven a weak POTUS, less able to influence public policy than other presidents. I’ve written about this roughly 14 dozen times in the last 2 years.
Whatever Trumpism was as a policy matter, it was eaten alive by Washington. The GOP captured Trump, not the other way around.
nytimes.com/2019/02/01/opi…
nytimes.com/2019/02/01/opi…
But legislation is one thing. Absent presidential skill, what a president really loses is control over the executive branch. Secretaries ignore him. Staffers roll him. Civil servants resist his policy ideas.
nytimes.com/2018/03/01/opi…
nytimes.com/2018/03/01/opi…
Even today, it’s entirely plausible that Trump’s Ukraine schemes failed because his would-be bureaucratic henchmen simply decided to ignore his commands.
The core lesson here is the opposite of what many of us were taught in high school: the president is not sitting atop the executive branch like the owner of a small business, able to implement his desires on a whim.
Instead, the president needs to skillfully fight for influence with other actors seeking to direct the executive branch: Congress, cabinet secretaries and other political who have their own ideas, civil servants who implement programs, lobbyists, etc.
Powerful presidents struggle with this stuff—even skillful use of personnel and/or strategic centralization of things at the WH require enormous effort and bureaucratic knowledge. Trump has none of that, so he is routinely defeated, outflanked, or ignored. Starting with WH staff.
Lesson #3. Separation of powers requires conflict. It’s not a constitutional crisis for Congress and the president to be locked in a serious power struggle.
You can like or dislike the Madisonian system. But you can’t look around, see gridlock and huge fights between Congress and POTUS and decide that the constitution is broken. Those are signs of the constitution *working as intended.*
Does that make it inherently the best system of the 21st century? Of course not. But our system can’t function as intended if it isn’t allowed to address politics in a confrontational manner. Expecting that consensus will rule and seeking to avoid all conflict is fruitless.
You might like other systems better. Maybe a parliamentary system is better, with its mostly-unified governments and depressed conflict between elections. But trying to graft that onto our system right now by disparaging political actors who want to fight isn’t going to work.
Power is so ground up in the U.S., no one can hope to unilaterally rule. And incentives for cooperation are weak. And so you get fights between a myriad of political actors, all taking place in a public sphere where they can be evaluated by other elites and by the public.
When Congress and the president are locked in a fight over subpoenas or executive privilege or impeachment, that’s the Constituiton working: political actors using the tools at their disposal to try escalate the stakes to win a public fight. Embrace it.
And please do not call it a constitutional crisis. Instead, think of yourself as an actor in the game. Whatever becomes of Trump in this impeachment battle will have long-term effects on the balance of power between POTUS and Congress. You are a player who can help decide.
The public sphere participation of citizens is the lynchpin of the confrontational system; if you only think about your participation in the constitutional system as via the electoral system, or maybe lobbying for legislation, you aren’t seeing the bigger picture.
The public will adjudicate the impeachment fight as much as the representatives will. /end
