President Trump has never been a picture of legal rectitude — this is, after all, a man who boasted during his campaign that he could shoot someone on Fifth Avenue without losing voters — but the Republican National Convention last week struck many viewers as an especially spectacular display of lawlessness.
“Trump’s aides said he enjoyed the frustration and anger he caused by holding a political event on the South Lawn of the White House, shattering conventional norms and raising questions about ethics law violations,” my colleagues reported. “He relished the fact that no one could do anything to stop him.”
One need not be a capital-d Democrat to discern a problem here: When a president no longer feels obliged to obey the rule of law, it suggests the office itself has outgrown existing mechanisms of accountability. If the presidency is too powerful, what can be done to rein it in? Could the answer actually be to vest it with more power? Or should we just do away with it entirely?
The rise of ‘the imperial presidency’
In 1973, when the Watergate scandal was enveloping Washington, the historian Arthur M. Schlesinger Jr. famously declared that executive power had spiraled out of control. “The imperial presidency, created by wars abroad, has made a bold bid for power at home,” he wrote in The Atlantic. “If this transformation is carried through, the President, instead of being accountable every day to Congress and public opinion, will be accountable every four years to the electorate. Between elections, the President will be accountable only through impeachment and will govern, as much as he can, by decree.”
Misgivings about executive overreach hit a high-water mark during Richard Nixon’s presidency, but they did not begin with him. As Tina Dupuy has documented in USA Today, they had also flared during Andrew Johnson’s impeachment. After his acquittal, a group of concerned citizens drafted a petition arguing that the framers of the Constitution had erred in designing the presidency, which they condemned as an elected kingship. In the wake of Nixon’s resignation more than a century later, Congress enacted a slate of reforms meant to constrain the chief executive, the historians Kevin M. Kruse and Julian E. Zelizer wrote in The Times last year.
Nonetheless, new powers continued to accrue to the office under threat of national security crises, both real and imagined. In response to the Sept. 11 attacks, for example, Congress authorized a vast expansion of the national security system under George W. Bush that his successors would inherit. Some of the president’s powers we know about; others remain almost entirely secret from the public.
As executive power has grown, political polarization has increased and intensified partisan gridlock in Congress. That, in turn, has put more pressure on the president to circumvent Congress through what is known as constitutional hardball: uses of the law that fall within the bounds of the Constitution but are nonetheless felt to violate its spirit. “The main dynamic for Democrats has centered around party leaders supporting presidents who use executive action, through regulatory orders and rule making, to deal with urgent policy problems that congressional Republicans oppose,” Kruse and Zelizer explained, and “Republicans have done much in the same vein.” Both the DACA program and the Iran nuclear deal, as well as the Trump administration’s efforts to abrogate them, were products of this dynamic.
What’s to stop the president from going beyond constitutional hardball and actually violating the law? As Trump has shown, less than you might expect. Insulating the office from accountability are forces both structural and contingent, among them the Senate’s high threshold for impeachment, increasing overrepresentation of white rural areas and a longstanding norm against indicting a sitting president.
How to weaken the presidency
If Congress members wanted to strip the presidency of some of its powers, they could begin by finding out and making public what they are. In 1975, the Senate created the temporary Church Committee to investigate American intelligence agencies for engaging in unethical activities, including attempts to assassinate foreign leaders and spy on Martin Luther King Jr. “No matter who occupies the office, the American people have a right to know what extraordinary powers presidents believe they have,” writes Gary Hart, one of the Church Committee’s last surviving members, in The Times. “It is time for a new select committee to study these powers and their potential for abuse, and advise Congress on the ways in which it might, at a minimum, establish stringent oversight.”
When it comes to war-making, though, many of the president’s powers are used in plain view of the American people. In 2014, the Times editorial board wrote about the abuses of the Authorization for Use of Military Force, which Congress enacted in 2001. Under that law, President Bush was able to justify the invasion of Iraq, warrantless surveillance of American citizens, and the secret kidnapping, imprisonment and torture of hundreds of people without trial, much as President Barack Obama was able to justify the use of drone strikes against suspected terrorists, including American citizens, without judicial review. And of course, since 1945, the president has retained absolute authority to destroy human civilization via nuclear war.
Yet even within the existing legal structure, some checks on the presidency lie unused. The Times columnist Michelle Goldberg has noted that nothing but convention has stopped the House of Representatives from responding to the Trump administration’s defiance of congressional subpoenas with “inherent contempt,” a power last exercised in the 1930s that allows the body to enforce its own orders through fines and arrests. Many legal scholars have argued that the same is true of the entrenched aversion to indicting the president for ordinary crimes.
The case for strengthening the presidency
What if the problem with the presidency isn’t that it’s too powerful, but that it’s too weak? In Boston Review, the political scientists William Howell and Terry M. Moe interpret the success of Trump’s anti-establishment, populist campaign as a symptom of profound dysfunctions rooted in the Constitution itself. Congress, they argue, is wired to be ineffective; over the past 50 years, it has proved incapable of addressing the socioeconomic disruption caused by globalization, technological innovation, immigration and the precipitous decline in worker power.
In this view, the reflexive desire among Democrats to limit President Trump’s power is shortsighted: If his predecessors had wielded enough power to solve the nation’s problems, they argue, he might never have been elected in the first place. Even with unified control of both the presidency and Congress through 2019, Republicans were unable to deliver on many of the Trump campaign’s promises. “Elections are supposed to matter — whether the losers happen to like the outcomes or not,” Howell and Moe write. “An effective government won’t always do what we want. But it will facilitate problem solving. And in so doing, it will protect our democracy. A presidency that is selectively more powerful is the key to making that happen.”
Since the Reagan administration, the idea that the president should have broad, independent power over the executive branch has been championed most forcefully by conservatives, including Attorney General William Barr. But unlike the staunchest proponents of “unitary executive” theory, Howell and Moe argue that expansions to executive power would need to be balanced by anti-corruption reforms, limitations of presidential authority over law enforcement and intelligence agencies, and the elimination of the pardon power.
The case for abolishing the presidency
Several months before Schlesinger warned of the imperial presidency, his fellow historian Barbara Tuchman took to the pages of The Times to call for the office’s radical transformation. The job, she argued, had simply become too powerful and too difficult for one person to manage. She proposed instead a “true cabinet government” by a directorate of six people, to be nominated by each party and elected as a slate for a single six‐year term with a rotating, yearlong chairmanship.
Schlesinger, for his part, found the solution unsatisfying: Dispersing presidential powers would blur accountability, he argued, not enforce it. Better yet, he suggested, why not do away with the presidential system entirely in favor of a parliamentary one?
Parliamentary democracies are generally less prone to gridlock because the executive and legislative branches are fused, as Diane Francis explains in The American Interest. The prime minister is simply another member of parliament who has the backing of a majority; if the prime minister loses the majority, the prime minister is replaced by another member who has it, and if no one has it, the public elects a new parliament.
Most democracies use such a system, including Francis’s native Canada. “The American model is rooted in conflict and division whereas the Canadian one, due to the need to hold a majority together in order to govern, leads to consensus and compromise,” she writes. “Canada’s transparency, efficiency and the ability to rid itself of dysfunctional leaders through snap elections is preferable to Washington’s endless, chronic gridlock.”
Our presidential system is one reason Matthew Yglesias predicted five years ago that American democracy might be doomed to break down. As of 1990, no other presidential democracy in the world had managed a century and a half of functional government besides Chile — until it collapsed in the 1970s, with American help.
“If we seem to be unsustainably lurching from crisis to crisis, it’s because we are unsustainably lurching from crisis to crisis,” he wrote. “The best we can hope for is that when the crisis does come, Americans will have the wisdom to do for ourselves what we did in the past for Germany and Japan and put a better system in place.”
