Rebuilding from Ashes
Image Credit: U.S. National Archives and Records Administration, Public Domain
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.
Accountability
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.
Functionality
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.
Legitimacy
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.
Practicality
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.
I might quibble with a few things, but overall I pretty much agree with this post and your suggestions–as well as your recognition that a lot of these reforms will be difficult to implement.
I actually don’t think agency independence would necessarily run up against the problems you foresee. If it’s the result of a duly enacted law, even a strong “unitary executive” theorist would probably have to agree with it. Or not–I’m no constitutional expert.
If constitutional amendments were on the table–and as you point out, they’re almost a non-starter–I’d recommend the following:
#1. Authorize the legislative veto.
#2. Allow the senate to dismiss cabinet-level (and all non-civil service) executive personnel for lack of confidence.Report
Well the Congress is supposed to be the check and balance to either house, or the President, getting out of line. They need to be reminded that they have been elected (hired) to represent their constituents; not their personal agenda or their party bosses. The problem isn’t a lack of already existing apparatus; but that we have allowed them to become career politicians who serve themselves and not their constituents.Report
If one wants to get of influential committees or gain from senority, then an elected rep needs to go along. Thomas Massie has zero influence in Congress because he does not play along with Republican Leadership.
The Democrats are even more wedded to seniority than the Republicans. Giving the Speaker of the House all of the power that the committee chairman used to have is a mistake.Report
Supposedly the President of the U.S. has over 200 direct reports. Overseeing 200 individuals is impossible in addition to managing the staff of the White House. The executive branch needs to be realigned so that less than 12 individuals answer directly to the President and everyone else works of one of those dozen or so. Also, the duplication between the Executive Office of the White House versus the Cabinet Departments needs to end. There is no reason for the Executive Office to have its own foreign policy or security staff.
Also, maybe the President needs multiple Chiefs of Staff such as national security, domestic, and administration.Report
Trump was a bullet dodged.
If we impeach Trump, Impeach Jared, and Impeach… oh, Josh Hawley, I guess. Then that might be a good message to send to the insurrectionists and that’s that.
But having dodged the bullet, we’re still in a place where the shooter is still there and there may be more bullets in the gun.
I said a million times back in 2015/2016 that Trump didn’t scare me. The guy who comes *AFTER* Trump? He scares me. (This doesn’t necessarily mean “The Republican Nominee Come 2024”. I mean, theoretically, it could be Rubio or something and I could see someone asking “You weren’t afraid of Trump, are you going to be terrified of *RUBIO*?” and that’s not what I’m saying.)
Trump is a symptom of a disease. He’s an indicator of things bubbling.
The Technocratic Elite vs. Populist thing hasn’t gone away. If someone who knows how stuff works picks up Trumpism, we’re going to have a huge problem… especially if the person who picks it up has better mastery of aesthetics.
Maybe Trump was lightning in a bottle. He was charismatic and funny and knew, instinctually, how to wrestle a media narrative (the only two things he couldn’t make go away were impeachment and Covid).
Maybe Trumpism cannot be led by someone who is not lazy, not stupid, and not incurious. That’s something I’d tell myself, if I wanted to stop thinking about it, I guess.Report
As it’s been said upthread…..
Congress ceded a lot of responsibility by drafting vague laws and telling the administration to “figure it out”. Stop doing that and do your job. I have little hope they will, so, this is what you get.Report
Indeed. When I was a member of the state legislative budget staff, one of my “unofficial” jobs was to discourage members from making permanent appropriations, since that ceded power to the executive branch. I wrote passionate staff opinions that whatever matter the bill was about, it did not rise to the necessity of making the appropriation permanent. Exceptions were items where failure to appropriate on time put us crosswise with the feds, which invariably had expensive consequences.
OTOH, I contend that it is not possible for an elected legislative body to write the sufficiently detailed policy needed for a moderately large modern country. Eg, Congress cannot manage the details of spectrum allocation so that satellites can send data to Earth without interfering with each other to the point that none of the data gets through.
Even worse when there are two chambers, elected on different schedules, possibly controlled by different factions, having to agree on the details.Report
“OTOH, I contend that it is not possible for an elected legislative body to write the sufficiently detailed policy needed for a moderately large modern country. Eg, Congress cannot manage the details of spectrum allocation so that satellites can send data to Earth without interfering with each other to the point that none of the data gets through.”
That’s true, but I’m not generally talking about that level of detail. I’m talking about taking a lot of the interpretation the admin needs to do. Somewhere between having Congress figure out how manage spectrum and telling the bureaucrats to “go regulate that”
Of course, it would be good for Congress to periodically review administration decisions and send updated laws when they see issues. One example I recall from back in the day was IIRC the Corp of Engineers ruling some guy’s farm pond was a “wetland” and subject to it’s jurisdiction or some such.Report
Fair. I certainly agree about Congress reviewing periodically. Congress faced up to the fact that SO2 emissions didn’t fit well under the then-current definitions and allowed remedies in the Clean Air Act, and passed the 1990 Amendments to same. They have been unwilling to face up to the fact that greenhouse gases don’t fit well under the now-current CAA and they need to do something about it. Heck, they won’t even agree that greenhouse gases are a problem.Report
SO fun fact – most of the authorizing statutes Congress passes to tell us wayward feds what to do have sunset clauses. Meaning if Congress doesn’t do something to reauthorize them they supposedly go away. In actuality Congress only reauthorizes about 1/3rd of what’s up in any year, and federal agencies keep going under the prior statutes because actually stopping stuff generally gets us in trouble with the appropriators.Report
So if someone were to sue an agency regarding their adherence to a provision that had sunsetted…?Report
Depends on thee agency, the provision, and how the statute dealt with standing. For instance – you as an American Citizen have statutory authority to sue any federal agency for its action (or lack there of) under the Endangered Species Act because the ESA grants anyone standing. You as an American citizen CANNOT sue any federal agency for decision under the National Environmental Policy Act, as NEPA grants no one standing. But if you can show “traditional” legal standing, you can sue for NEPA decisions via the Administrative Procedures Act where your claim has to allege arbitrary and capricious decision making.
All of that presupposes that the agency hasn’t been declared sovereignly immune, which is a gift Congress gives some agencies in some statutes.Report
Corporations could probably write that spectrum allocation policy. They could probably write it fairly well. Have a somewhat Senior Congressperson explain to the corporations “we’ll need a reasonable band for Military and a different reasonable band for Government and another reasonable band for Something Else That I’m Not Going To Tell You.”
And everybody’s happy except for hobbyists, I guess.Report
Because corporations do such a good job now on the rest of their self governance.
SMDHReport
I’m not suggesting that they do it because it would be good if they did.
I’m suggesting that they are already doing it now and they’re being careful to do it in such a way that doesn’t piss off Uncle Sam.Report
I disagree. I know I wrote “allocation” but it’s much more complex than that these days. The communication plan for any particular satellite will include orbit, frequency, time, position, beam tightness, location of ground station, and perhaps more. The ITU is the coordinating international agency and so far as I know all the other countries that need to be coordinated with use government agencies.
IIRC, SpaceX’s Starlink communications proposal ran to hundreds of pages because of the real-time problem of coordinating thousands of satellites and (potentially) tens of millions of US ground stations along with everything else that’s up there. It’s a hard enough problem that US Starlink ground antennas will point north. One of the reasons that SpaceX needs so many satellites for the service is that the ground antennas will point at a very limited strip of sky.Report
Is it that it cannot be done, even in theory?
Or is it merely The Mother Of All Coordination Problems?Report
It’s… complicated. The FCC manages all aspects of orbital policy for the US. From basic policy to detailed analysis of each license application to all of the international coordination. One of the first problems a private equivalent would have is that a lot of stuff goes through the ITU, and the ITU won’t deal with anyone except state actors. Which is, from long-ago experience, a pain in the ass. Private companies can do a bang-up job on working out the standard, but God only knows what the FCC might do to it before they take it the ITU.Report
How is this not what happens now via lobbying and revolving door regulators? Or are you being sarcastic?Report
A good analysis, but any technical recommendations for how to avoid this in future always run into the same problem which you refer to in the last two paragraphs; Namely, that any reform will require the support of some portion of that 40% of the American electorate who voted enthusiastically for this wretched mess.
Trump was in fact a bullet dodged, a warning sign, a symptom. He wasn’t a rogue individual acting against the interests of the overwhelming majority. He legitimately represented the desires of a very large minority of the citizens.
That is the problem to be addressed. How does a democracy survive when about a third of the citizens would happily subjugate the other two thirds?Report
A lot of people don’t want to deal with this problem because it is something of a problem without a solution. Democracies have been struggling with the issue since Ancient Athens, what do you do with the anti-democrats in the system. People also don’t want to deal with the fact that family and friends might be authoritarian anti-democrats too. It is a very troubling thought.Report
This is the danger of calling a Constitutional Convention, that 1/3rd will get a voice and a vote and are guaranteed to put something in there that will be bad.Report
Good analysis on the merits, governance and policy side of things James. The 800 lb. gorilla, of course, remains mostly unaddressed- that being the politics of the matter.
If Joe and his party were fundamentally and primarily concerned about the principles of good limited government to the exclusion of all else they would pass a series of laws reining in the Presidency and devolving power back to the legislature and independent actors. In theory, at least, the GOP would cooperate with this and then use the new devolution to immobilize the Democrats and Biden from cleaning up the many voter visible messes Trump has left on Biden’s desk in whatever scarce time they had remaining. Then in the next couple elections the Democrats would be swept out of power by angry voters and the GOP with unified control would resolve matters to their liking.
No doubt good government nerds and political history obsessives would speak highly of how the Democratic Party saved Democracy just as current poli-sci and history nerds observe that Carter was actually the productive beginning of the taming of stagflation and overregulation. But for the other 99.9999% of people it’d be the Republican Administration that came after the Dems were landslided out that’d take the credit for fixing things and saving the country. It’s a valorous thing in abstract but man oh man it’s a tall ask politically.Report
That is the rub yes, what President wants to make their job harder or less pleasant?Report
I agree with Chip and North. This is a good analysis on theory and with reasonable solutions but the fact is that the GOP does not actually care about things like limited government and the deficit unless Democrats are in power. Plus our punditry elite is addicted to the filibuster as some kind of grand tradition but mainly because it keeps their taxes down.Report
Making fixing the problems with Congress a partisan issue will ensure the failure of reform. Claiming that reform can only occur if the U.S. is a one party state ensures failure.Report
The Republicans have it within their power to ensure that fixing the problems with Congress does not become a partisan issue.
Will they take it, or fail yet again and be in disarray?Report
We see this in how McConnell is taking the filibuster to new levels and using it to prevent the Democratic Party from taking control of the Senate. This has literally never been done before and is going to require fast and hard partisan action to teach McConnell a lesson.Report
Giving the Democrats a massive partisan win is not fixing the problem or avoiding the partisanship. It is just a demand that Republicans surrender and let the U.S. become a one party state.Report
“We mustn’t allow a Democrat win! Why must this be a partisan issue?”Report
Reforming of Congress requires more than saying that Republicans are bad. Two think tanks: Rstreet for the Republicans and New America for the Democrats have been looking at the subject for over a year.
Most people keep thinking of Congress as a one or possibly two large organizations. In reality, Congress is 535 independent business who have an overlay of a few organizations. Yet, even the Capital Police’s failures show that no one really manages the security of Congress.
Fixing Congress will take more than blaming others. It will take both sides willing to give up some power and maybe going back to older methods while also adopting better management methods.Report
As I like to remind people, when we had a chance too, after World War II, with unimaginable amounts of power, where we basically wrote Germany and Japan’s Constitution for them, notice we didn’t export the Electoral College, an all-powerful Senate, etc.
Our current Constitution is like trying to run any game on the “minimum requirements” – sure, it might work officially , but it’s going to be messy and a lot of trouble.Report
We only get away without having special election monitors because of the antiquity of our Constitution and that we are the 500 pound gorilla in the room. Nobody is powerful enough to tell us to reform now.Report