Trump and the Limits of Presidential Power

COMMENTARY The Constitution

Trump and the Limits of Presidential Power

May 8th, 2017 2 min read
COMMENTARY BY
Theodore R. Bromund, Ph.D.

Senior Research Fellow in Anglo-American Relations

Ted Bromund studies Anglo-American relations, U.S. relations with Europe and the EU, and the U.S.’s leadership role in the world.
Presidents are understandably unwilling to admit that their battles with Congress aren’t the result of a bug in the design of the Constitution. They’re the result of a feature. iStock

Key Takeaways

A good many presidents since Woodrow Wilson have argued — or asserted — that the Constitution is a problem.

Checks and balances are only archaic if you believe that, at some point after 1789, men became angels.

The federal government was supposed to be powerful but limited. The Constitutional order was created to defend those limits.

Last week, President Donald Trump blamed the Constitution for making his life hard. As he put it, “It’s an archaic system. . . . It’s really a bad thing for the country.” He’s not the first president with that complaint, and, sadly, he won’t be the last.

In fact, a good many presidents since Woodrow Wilson have argued — or asserted — that the Constitution is a problem. Wilson was the original progressive, unhappy with the whole idea of the separation of powers. Franklin Delano Roosevelt wanted to pack the Supreme Court.

And infamously, in 2014, President Barack Obama said, “I’m also going to act on my own if Congress is deadlocked. I’ve got a pen to take executive actions where Congress won’t.”

Obama had an excuse — presidents always have an excuse. Obama’s was that Republicans weren’t doing what he wanted them to do. Curiously, that was also Trump’s line, even though Republicans nominally have unified control of the White House and Congress.

Presidents are understandably unwilling to admit that their battles with Congress aren’t the result of a bug in the design of the Constitution. They’re the result of a feature. Checks and balances are only archaic if you believe that, at some point after 1789, men became angels.

At bottom, what presidents want is power — the power to do what they want to do. If you take that too far, there’s a word for it: tyranny. And that is precisely what the Founders wanted to prevent. They were far more worried about what an over-mighty executive might do than they were about the laws a recalcitrant Congress wouldn’t pass.

Of course, they didn’t simply want a weak executive. In foreign policy, they wanted a strong one. Even today, presidents tend to move from domestic policy (Obamacare, for example) to foreign policy (the Iran nuclear deal) as they realize how constrained they are at home.

But ultimately, there’s a reason Congress is on top of Capitol Hill, looking down on Washington: The House of Representatives is closest to the people. The Senate, by contrast, was supposed to be selected by the state legislatures (changed in 1913 by the 17th Amendment), and the president by the Electoral College. All branches are important, but ultimately, the people rule.

Nothing reaffirms the Founders’ wisdom more that the fact that presidents complain so much about the Constitution: If it gave them the power they want, it would be worthless. The fact that presidents since 1789 have regularly signed bills into law shows the error of their complaints.

Yet in a curious way, Trump has a point — not about the Constitution, but the system that surrounds it. We are a society bound by precedent and the past. And over time, that system — created not by the Constitution, but by what we have done with it, and to it — has become more and more constraining.

Much of this system is not, in the proper sense, law at all. It is never voted upon. Instead, it consists of rules made by administrators, drawing on powers unwisely — often unconditionally — delegated to presidents by Congress.

This is a particular problem for conservatives. The federal government was supposed to be powerful but limited. The Constitutional order was created to defend those limits. But its walls were breached by the inrush of Wilson’s progressivism. 

As Trump’s complaints testify, the constraints of that order endure — but now, perversely, they make it harder to restore its limits. The American operating system now defaults not to limited government, but to big government.

And ultimately, this is a problem for the entire United States. It’s like the slow settling of silt in a young lake. Eventually, the silt — the rules, the precedents, and the interests that benefit from them — chokes the lake. The young lake becomes an old one. That will happen to us, if we let it.

The Constitution isn’t bad for the country. It’s the way we’ve traduced the Constitutional order that poses the peril

This piece originally appeared in Newsday