More On: Constitution
Whether consciously or by reacting to his own political incentives, Trump has become a stouter defender of our original governing document than his critics. Donald Trump’s tweet last week that the possibility of mail-in voter fraud might justify postponing the November elections renewed claims that his presidency is a threat to the Constitution. Conservative commentator …
Whether consciously or by reacting to his own political incentives, Trump has become a stouter defender of our original governing document than his critics.
Donald Trump’s tweet last week that the possibility of mail-in voter fraud might justify postponing the November elections renewed claims that his presidency is a threat to the Constitution. Conservative commentator Henry Olsen, often a stout defender of the administration, wrote in his Washington Post column that the tweet “is the single most anti-democratic statement any sitting president has ever made.” Steven Calabresi, a conservative Northwestern law professor and co-founder of the Federalist Society, declared in the New York Times that “this latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again.”
The Constitution clearly gives the power to set the election date to Congress, the manner of holding it to the states (with the right of override by Congress), and leaves the president out of the electoral count. Even if Trump wanted to delay the election, he has no power to do so. His term in office ends automatically on January 20, 2021, and whoever wins the November elections begins the new term on the next day. It may be politically unwise for Trump, because he is president, to suggest moving the election date, but it does not implicate any constitutional concerns.
Nevertheless, these latest criticisms play upon a broader theme that has animated Trump’s opponents and led to the most serious challenges to his presidency. Speaker Nancy Pelosi, for example, claimed during the impeachment fight that Congress had to remove Trump for his dictatorial actions. “If we allow one president — any president, no matter who she or he may be — to go down this path,” she said, “we are saying goodbye to the republic and hello to a president-king.”
At the same time, however, Trump’s critics have attacked him for the very opposite: a lack of executive energy. They demand that Trump should have done more to fight the COVID-19 pandemic by, for example, imposing a national mask mandate, shutting down the entire economy, and personally spearheading efforts to develop a vaccine. Pointing to the mounting death toll, Democratic challenger and former vice president Joe Biden declared in July that “it seems like our wartime president has surrendered — waved the white flag and left the battlefield.”
As the Democratic and Republican parties open their nominating conventions this month, and the presidential campaigns begin in earnest, they will ask the American people to choose between these two competing realities. Is Trump a dictator or a cypher? Has Trump rumbled like a populist bull through the constitutional china shop, or did he fail in his executive responsibilities by not effectively seizing the energy and dynamism inherent in the presidency?
The answer is neither. Trump represents something new, but not in the way his critics imagine and fear. He has not played the role of standard populists, who usually seek to remove constitutional barriers to their reform agendas. Instead, he has become, by the end of his four years, an unexpected constitutional traditionalist who has relied on theories of executive power held by his predecessors — even (gasp) Barack Obama and George W. Bush — to defend the rights of his office. He has fought off the efforts of so-described progressives, who have wanted to revolutionize our constitutional order by vesting ever more power in a permanent bureaucracy with virtually limitless authority but without democratic accountability. Whether consciously or by reacting to his own political incentives (which the Constitution itself creates), Trump has become a stouter defender of our original governing document than his critics.
Trump has not brandished any novel assaults on the Constitution — his opponents have. Well-respected conservatives, such as NR’s editors and leading senators, have criticized Trump’s invocation of emergency powers to build a border wall or impose sanctions, though in those cases — as I have argued on this website — the president had ample authority granted by Congress in those situations.
In any case, the extreme attacks by progressive far exceeds the more moderate claims of conservatives against Trump’s exercise of presidential power. Take the controversy over the presence of federal officials, even troops, in response to the disorder in some American cities. Trump’s critics raised doubts about civilian control of the military and the president’s authority over law enforcement. They claimed that “unidentified agents in camouflage snatching leftists off the streets without warrants” in Portland amounted to “Trump’s occupation of American cities.” A New York Times columnist asked: “Can we call it fascism yet?”
All the rhetorical excess ignored the federal government’s right to defend federal buildings and personnel. Article II of the Constitution also imposes on the president the duty to see that the laws are faithfully executed, which allows him to send federal personnel and resources to arrest and prosecute those in the rioting who break federal criminal laws. Under the Insurrection Act, the president can even send in U.S. troops if state and local authorities cannot maintain order and the rights of residents fall under threat. Because of the overheated rhetoric and exaggerated constitutional claims, critics leave Trump the defender of the president’s traditional constitutional role as commander-in-chief and recipient of Congress’s delegation of emergency powers.
Progressives have unwittingly engineered similar results across the constitutional landscape. Even though Trump lost the popular vote in the 2016 election, he legitimately won the presidency under the rules of the Electoral College, which grants each state votes based on their number of members of the House and Senate (thereby favoring smaller states and, because states award all of its electoral votes to the winner, slightly muting the popular vote). Progressives responded by seeking to abolish the Constitution’s two-centuries-old method for presidential selection. Representative Alexandria Ocasio-Cortez claimed the Electoral College is “a shadow of slavery’s power on America today that undermines our nation as a democratic republic.” In spring 2019, Democratic senators Brian Schatz, Dick Durbin, Dianne Feinstein, and Kirsten Gillibrand even introduced a constitutional amendment to abolish the Electoral College. Progressive intellectual leaders and retiring Representative John Dingell, the longest-serving member of the House, want to abolish the Senate too while they are at it. When it comes to defending our Constitution and its existing institutions, progressives eagerly cede the field to Trump.
Democrats would do even more damage to the constitutional order if they were to win this November. During the primaries, they launched proposals for a Medicare-for-All health-care system that would abolish private insurance, a Green New Deal that would escalate Washington’s control over the economy, federal wealth or sales taxes that violate the income-tax amendment, and the takeover of state and local areas of governance ranging from criminal justice to consumer contracts to property. Trump could protect the Constitution merely by winning the 2020 election (again through the Electoral College), governing with the Senate, and simply stopping progressive efforts to vest even more new powers in a permanent, unaccountable bureaucracy.
But Trump’s defense of the constitutional order has gone beyond simply blocking bad ideas. His battle for the Constitution took three basic forms. First, and most importantly, he fought off Robert Mueller’s special-counsel investigation and impeachment. Both challenged the president’s authority to govern the executive branch and to fulfill his constitutional duty to enforce the law.
Trump didn’t win acquittal based on innocence, however, but because the Constitution gave him a built-in advantage. With 53 Republicans holding the Senate majority, the House had to persuade 20 Republicans to vote to convict. They convinced only one, Senator Mitt Romney (R., Utah). The Founders didn’t impose the two-thirds vote requirement in the Senate to protect Trump. They did it to defend the institution of the presidency. The Framers rejected a parliamentary system in which Congress selects a prime minister who both leads the legislative majority and heads the executive branch. Their great experiment with a separation of powers required a presidency independently chosen by the people and vested with its own unique powers and responsibilities. The Framers feared that impeachment and removal by simple majority vote would render the president dependent on Congress, and thus deprive it of the energy, speed, and decisiveness needed for good government. The two-thirds vote requirement ensured that Democrats could not remove Trump due to partisanship, or even policy disputes. The Constitution became Trump’s great shield, and in winning the impeachment battle, Trump repaid the favor by reinforcing the independence of the executive.
Second, Trump defended traditional executive primacy in foreign affairs and war. Trump has used his executive control over foreign affairs to achieve what may prove to be his most lasting effect on American policy — shifting America’s strategic focus onto China and away from the Middle East. He has used power given to him by Congress to ratchet up economic sanctions on Beijing, and exercised his constitutional powers to terminate arms-control agreements that restrained the U.S. but not China. Trump used his power as commander-in-chief to contain Tehran, as in the drone killing of Iranian general Qasem Soleimani, while reducing U.S. troop levels in Syria, Iraq, and Afghanistan. Congressional opponents sought to block Trump by narrowing his war powers and control over foreign affairs, but so far with little result. While Congress may seek to advance different policies through spending or legislation, the Constitution designed the executive branch specifically so that it could quickly and effectively protect national security and pursue our interests abroad.
Third, Trump appointed a Supreme Court that could return the Constitution to its original understanding on questions ranging from federalism to individual liberties. He nominated Neil Gorsuch and Brett Kavanaugh, conservative judges with eminent qualifications, to the Supreme Court, and has filled more than a quarter of the lower courts with young, bright, conservative intellects. Liberals rightly worry that these appointments augur a sea change in constitutional law that could threaten the vast administrative state, the creeping control of Washington, D.C., over everyday life, and even Roe v. Wade’s protections for abortion. Progressives responded by attacking the Supreme Court. During the Democratic presidential primaries, senators Elizabeth Warren and Kamala Harris and Mayor Pete Buttigieg, among others, called for expanding the Supreme Court from nine to 15 justices so that the next Democratic president could pack it with liberals. Democrats have attacked the personal records of judicial nominees and have even threatened to impeach Kavanaugh for sexual-harassment claims that the Senate fully aired during his confirmation. All of these attacks leave Trump in the position of defending the Supreme Court and the institution of judicial independence.
These battles over presidential power and the Constitution provide an important insight into the political and constitutional change of the Trump years. Political analysts have observed that Trump represents a realignment in American politics, with Republicans coming to represent a populist nationalism suspicious of globalization, foreign entanglements, and immigration, while Democrats evolve away from their working-class constituents to represent the cosmopolitan, educated elites in coastal cities and suburbs. But the deeper change that Trump’s election may have triggered is a revolution in the nature of government. At certain periods in our history, government can become ossified and overgrown with rules and bureaucracy that have separated from the wishes of the people. Jefferson, Jackson, Lincoln, FDR, and Reagan led popular movements that swept away old political orders and replaced them with new, spartan forms of government more responsive to the political times.
Trump’s presidency may signal a similar seismic shift in government, one that extends far beyond his own personal political interests or his low polling. Today’s federal government can trace its lineage directly to the New Deal. Large, expert federal bureaucracies exercising broad powers delegated by Congress continue to govern an economy and society that have evolved far from the world of the 1930s–1960s. Even as America races into a post-industrial society, where information has become the foundation of the most valuable goods and services, it continues to govern itself with forms suited for continent-spanning GMs and IBMs and their matching labor unions. A more spartan government, controlled by a Constitution of limited powers, may well prove more nimble and effective in the new 21st-century world than the government of the New Deal. Even while he recalls America to the society of the past, Trump may have shaken up the political system enough to allow it to adapt to the new economy of social media, networks, and AI. Presidential power provides the critical leverage to spark such significant government change, and it may be Trump’s most unlikely legacy to have preserved the constitutional authorities of his office that make such reform possible.