Rebuilding from Ashes
It may not feel like it right now, but you got lucky with Trump.
Let me be clear, this is not a defence of Trump, I’m not saying he was good, or even that he was better than people suppose – the Trump Presidency was a total catastrophe, and the fact it happened at all is a dire indictment of the Republican Party and the US’s constitutional system. No, by lucky I mean that I’m not sure people appreciate how much worse it could have been.
Trump is lazy, stupid, incurious, and has basically no understanding of the machinery of government. These were easily his best qualities as President. Because of his lack of knowledge he didn’t understand how to use his power to his advantage, and his laziness prevented him from following through on some of his more unhinged ideas. For the first half of his term (until he purged all the old stalwarts and replaced them with sycophants), a lot of his staff would just not do things he asked of them on the (often correct) assumption that he wouldn’t follow-up. These are not necessary characteristics for someone like Trump though. Imagine a candidate with Trump’s ability to build a cult following and manipulate the media, but with the governmental knowledge and cunning of Mitch McConnel. Imagine a Trump that didn’t need to issue the Muslim ban multiple times to get it past the courts. Imagine a Trump that could get the citizenship question on the Census because he could make a plausible case for it to the Supreme Court. Imagine a Trump that, instead of denying the prospect of Russian election interference, used it as a reason to increase government oversight over elections, news and social media – and used that oversight to skew public information flows in his favour. In other words, imagine a Trump that was actually the 11-dimensional political strategist the media insisted on treating him as. Could your republic survive such a leader? I doubt that it could in its current state.
Trump is not what is wrong with your country, he is a symptom. Your system of government has lung cancer and Trump is a fit of coughing up blood. It’s good that you’re not coughing up blood anymore, but you still have a serious problem. And while the Democratic Party will doubtless want to focus on its policy programme (and fair enough), I strongly suggest it also looks at some significant constitutional reform.
I think the core of your government’s issues stem from the weakness of the legislature. Trump was able to do so much damage because your President is given vast power with minimal limitations. The Constitution gives the President total control over the executive branch, which might not have been a problem in 1780 when that basically just meant the military and the Post Office, but the rise of the administrative state has given the modern federal government massive control over American economy and society and all that power is vested in one person. Here are some ideas that I think would help a lot in restoring the Presidency to balance.
It’s clear that the Founding Fathers considered impeachment a key check on Presidential overreach, but in practice it simply doesn’t work. The British Parliament could resist the King because the King belonged to no party. But Presidents are partisan, which inherently undermines the ability of the legislature to check the President. Congress is divided by party and by house. No party wants to sanction a President of their party, and so one party has to decisively hold both houses for impeachment to be a credible threat.
This would be less of a problem if there were any other major ways to hold a sitting President accountable, but there really aren’t. The entire apparatus of governmental accountability from Inspectors General to the Federal Bureau of Investigation and Department of Justice explicitly work for the President and are required to follow their instructions. Relying on people to hold their boss accountable for bad behaviour is inherently flawed. Even if they’re willing to resist the incentives to let misdeeds slide, when the person you’re investigating can order you to stop, and you legally have to obey, that severely complicates matters. Few things about the Muller investigation struck me as more pathetic than a special prosecutor saying they legally can’t prosecute the person they were set to investigate.
The only solution I can see is to create agencies that can check the President even if the President chooses not to cooperate. In New Zealand this is done by Parliament granting an agency independence from Cabinet direction in some specific cases, such as Section 16(2) of the Policing Act 2008. The Act specifically instructs the Commissioner of Police to ignore orders from Ministers (which includes the Prime Minister) to investigate or prosecute (or refrain from investigating or prosecuting) anyone. It also stops Ministers from rewarding or punishing police officers directly, thereby insulating police from pressure to yield to political direction. Inland Revenue, Statistics New Zealand, The Electoral Commission and the Reserve Bank have similar provisions in their legislation so as to keep the essential apparatus of government free from undue political influence and the perception of undue political influence.
This solution might not work in your context though, due to the legal theory of the Unitary Executive. New Zealand has no such concept — here Parliament is sovereign and what it says goes. The executive and judiciary only have as much power as Parliament wants them to have. But in the US, the Supreme Court could overrule independent mandates on the theory they encroach into the executive’s authority. As such a better solution might be to use the same approach we use for Audit New Zealand – making it a legislative agency instead of an executive one. If the Inspectors General worked for Congress instead of the President, it would be a lot harder to stop them from reporting on executive misconduct. And it need not stop there. I suggest that Congress establishes its own police force and prosecutor’s office. Its jurisdiction would be the official conduct of federal government employees and it would report to the houses of Congress instead of the President. This would allow the legislature to investigate, arrest and even indict officials, even a President, without the cooperation of the executive branch. Ideally, you’d also restrict the President’s pardon power but that would be tricky without a constitutional amendment.
A lot of the reason the Presidency and Judiciary get so much popular attention right now is that they are the only branches of government still operating. The legislature passes few laws or budgets or does much of anything except occasionally confirming Presidential appointments. Nature abhors a vacuum, and so does politics.
The big thing I would target here is the senate filibuster rule. In practice all it does is make it even harder for the legislature to act. The result of this deadlock is that the President assumes ever more power to “adjust” laws by executive order, leaving the courts to rule on the validity of the adjustments. Letting the Senate reach decisions on a simple majority would at least increase the ability of the legislature to legislate.
The legislature also needs to claim back power it has yielded to the President. Ending authorisations of force and states of emergency, or at least stripping them back to only the specific things the legislature is happy to proceed with, would remind the President, and the public, that spending and war are legislative prerogatives, not executive ones and if the President wants to initiate force or spend funds, they need the legislature’s permission to do that.
If people start to see the legislature acting to solve problems, I believe people would come to appreciate the leadership role it can and should have.
I also think there’s a more fundamental issue with the Presidency. The President is elected by the entire country, the only office to be so elected. This gives it a kind of legitimacy that congress lacks. Woodrow Wilson noted this exact thing, though while for him it was an opportunity, I see it as a problem. Ideally, I would eliminate popular elections for the Presidency entirely, making it a legislature-elected office like the Prime Minister is here. Failing that, voters need to understand that the President is not the one “in charge” of the US government. By default, a lot of symbolic leadership roles have fallen to the President over time, but that doesn’t mean they have to.
Consider the State of the Union address. The constitutional purpose of this is for the President to report to Congress on the US’s situation. It has become a pageant where the President outlines their policy agenda while being applauded (it should come as no surprise that it was Woodrow Wilson that started this tradition). I suggest flipping the tradition on its head. Withdraw the invite for the President to speak at the State of the Union — a written report will suffice. Instead, have an event where the Majority Speaker of each house reacts to the report, using it as an opportunity to outline their policy agenda.
The ceremonial aspects of the Presidency are an important part of being a ruler. Trump’s inability to perform the basic ceremonial functions of the President, and the precedent-breaking nature of COIVD, makes this an opportunity to start setting new rules.
The things I’m suggesting would be difficult to do. Nearly all of them will require getting the support of the Republicans, though perhaps Mitch McConnel could be persuaded in some cases, after all, greater Presidential accountability would give him tools to use against Biden. Biden himself might also be an obstacle, no President will welcome greater scrutiny of their office, but the Democrats need to persevere.
Other ideas are even less likely to be possible — anything requiring a constitutional amendment is probably a non-starter. But if these ideas don’t work out, you will need to think of something else. Because the US’s constitutional structure is in a very poor state right now, and I doubt is can handle much more than a Trump-level assault.