Reprising Reconstruction

Ross Douthat, in a recent piece in the New York Times, repeated the often-floated thesis that our worst fears about Trump’s authoritarian instincts have not been realized because Trump is not only incompetent but also because he “is interested in power only as a means of getting attention”. Douthat adds, “But once you leave the sphere of petty corruption for the sphere of policymaking, Trump clearly lacks both the facility and the interest level required to find opportunity in crisis”. This idea that Trump is purely focused on personal and petty grift is also echoed in David Frum’s latest book which Carlos Lozado reviewed, writing, “Frum concludes that Trump hasn’t been all that good at corruption, much as he is not all that good at lots of things. ‘No question, Trump extracted dishonest millions from the presidency,’ Frum acknowledges. But his schemes were often small-time hustles”.

But focusing on the fact that Trump was only interested in pursuing and exercising power for his own personal aggrandizement and that of his sycophantic cronies rather than for specific policy outcomes seriously understates the potentially permanent damage that he has inflicted on our democratic institutions. Even Douthat admits, “Incompetent he surely is, but in areas that involve his self-preservation (like the firing of inconvenient inspectors general) he still finds a way to wield his powers even when norms stand in his way”. This rather underestimates Trump’s so-far successful endeavor to make himself personally immune from any effective oversight. As David Graham warns, “In context, the war on inspectors general is the third and final front in Trump’s war on any kind of check on the executive branch. In the past few months alone, the White House has argued that Congress doesn’t have the right to oversee the executive branch. It has sought to convince courts that matters of oversight shouldn’t be decided by the judicial branch, either. And in going after inspectors general, an accountability mechanism embedded in the executive branch, it is staking a simple but sweeping claim: No one has the right to check the executive outside of quadrennial elections”.

Today, there are increasing worries that even quadrennial elections will be able to restrain Trump. The New York Times just ran a story about the myriad of groups “who have been gaming out various doomsday options for the 2020 presidential election…fearful that he [Trump] might try to disrupt the campaign before, during and after Election Day”. As Norm Ornstein, a participant in one of these groups, notes, “We hope there are safeguards in place…Let’s face it, those safeguards ought to include the Senate of the United States and the Justice Department. There’s reason to be nervous”. What’s remarkable and frightening about the story is that it outlines no strategy for dealing with a disruption to the 2020 election other than relying on the DOJ, the Senate, and the courts, all three of which have shown themselves to be either outright accomplices in Trump’s rejection of oversight or unwilling to do anything about it.

While Douthat marvels at the President’s inability or unwillingness to consolidate power for political ends, the ideologues in the Republican party have surely managed to do it for him. Plutocrats have managed to buy advantageous policies with large campaign donations. Stephen Miller has led a successful shutdown of immigration to this country, continually defying the law and the courts with actions on the southern border, and now further aided by the pandemic. The Trump tax cuts will be perhaps the largest transfer of wealth from the poor to the rich in modern American history. Mitch McConnell has managed to pack the federal courts with partisan hacks who will be on the bench for the next two generations. That seems like a pretty heady list of major accomplishments that will significantly impact the country for the foreseeable future and one that helps keep Trump’s base largely intact. So when he talks about Trump’s lack of political goals, it is more likely that Douthat means Trump has not used the power he has accrued to pursue the political ends that Douthat favors.

Trump may be the peak expression of the imperial presidency that was largely created in the postwar period, culminating in the theory of the unitary executive that became more prominent in the post-Watergate era. In reality, all three branches of our government have centralized their power in the postwar period, primarily a result of the increasing complexity of government and the political polarization of the more recent period.

Contrary to our current understanding, the founders originally envisioned the Speaker of the House more along the lines of the Speaker in the British House of Commons, acting primarily as a parliamentarian. That is the primary reason that the Speaker does not even need to be a member of the House and, in fact, the Speaker did not even have the full right to vote in the House until the 1850s. Over time, the Speaker came to largely control when bills would be brought to the floor with a vote, giving the job the enormous power it has now.

However, until the reforms of the Watergate era, it could be argued that the Speaker was actually not the most powerful member of the House. That title was usually bestowed on the chairman of the Ways and Means Committee, which not only oversaw any tax bill that originated in the House but whose members also determined the chairs of other House committees. Cross the chairman of Ways and Means and you could have a long career as a legislative back-bencher. The Gingrich revolution consolidated even more power in the Speaker, ending assignment of chairs by seniority and imposing six year term limits on each chair, a system that still exists under Pelosi today. The Speaker’s extraordinary power also provides the position with enormous fundraising potential, a windfall that only further enhances the Speaker’s abilities of persuasion with recalcitrant members.

Similarly, the power of the Senate Majority leader resides solely on precedent and custom. In fact, the position is not even mentioned in the Constitution. The majority leader’s power only derives from a precedent set in 1937 by the Vice President acting in his role as the President of the Senate who made a ruling that, “in the event that several senators seek recognition simultaneously, priority of recognition shall be accorded to the majority leader and minority leader, the majority [bill] manager and the minority [bill] manager, in that order”. This right of preferential recognition is what gives the majority leader the power to control the legislative agenda and the amendment process. Remarkably, this procedure also gives the minority leader more power than the other 98 Senators, including those of the majority party. Mitch McConnell’s claim that “I’m the one who decides what we take to the floor” rests solely on the majority of his fellow Senators willing to allow this custom to continue. Like Pelosi, the power of the Majority Leader provides the officeholder with enormous fundraising capabilities, allowing them to keep rebellious members of their own party in line.

Even Republicans have chafed against McConnell’s dictatorial leadership, with Senator Kennedy of Louisiana complaining, “I think it sucks…All I hear is, ‘Well, it’s not done that way,’ Kennedy said of his call for a more robust debate of ideas on the Senate floor. ‘Well, the way we’ve been doing it for a long time sucks’”. In the Trump era, legislative hearings and debate bear no resemblance what Amber Phillips describes as a “fantasized version of the way Congress works”. In fact, they barely exist at all. Instead, bills are simply presented to the members with barely enough time to read the bill, much less understand its unintended impacts, before they are required to vote. For example, the actual version of the Trump tax bill that passed the Senate contained hand-written changes to the printed text.

With the ascension of Gorsuch and Kavanaugh, the Supreme Court has also sought to expand its own reach, often intervening in cases before the matter has even been decided in district court and bypassing the Court of Appeals entirely, as illustrated in the census case. The Court has also been receptive to the Trump administration’s continual and unprecedented emergency requests to stay lower court’s decisions, granting well over half of the 27 applications over the last three years. In the prior 16 years, only eight such requests were even made of the Court. As Ian Millhiser writes, “The Trump administration, in other words, is behaving as if the Court is its personal concierge service — and the Republican-controlled Supreme Court is doing little to disabuse the administration of this idea…Some of the justices, in other words, do not simply appear willing to ignore the Court’s ordinary procedures when the Trump administration seeks extraordinary relief. They also may be applying one legal regime to regulations they disapprove of, and another, more permissive, legal regime to the Trump administration”.

Meanwhile, conservatives in the lower federal courts are becoming more openly political in their decisions. In their absurd decision invalidating the entire ACA simply because of the reduction of the individual mandate penalty to zero, two appeals court justices in the Fifth Circuit approvingly cited a claim that “entire law was enacted as part of a fraud on the American people, designed to ultimately lead to a federal, single-payer healthcare system”. In the DC Court of Appeals, Trump appointee Neomi Rao has argued both that it was “inappropriate for the Court to assist or interfere with impeachment proceedings” when the House sought the unredacted Mueller report as part of the impeachment process and also that Congressional inquiry involving the President “may be pursued only through impeachment”. As Ashwin Phatak summarizes, the catch-22 of both these concurrent views would “place Trump above any congressional oversight and further insulate the executive branch from an important check by the judicial branch”.

In response to constitutional law scholars pooh-poohing Trump’s threat to override governors who refuse to declare houses of worship essential services, constitutional law scholar Christopher Sprigman tweeted, “The constitution is just a piece of paper. And the culture of lawfulness that gives it force is so badly frayed-including among fed’l judges-that just about anything is possible…Haven’t we seen that already? It may be that the last people who will catch on to the fact that our constitutional culture has broken down are the people who have dedicated their professional lives to understanding it”.

The question for America going forward is how to stitch this badly frayed “culture of lawfulness” back together under present conditions. Douthat may be relieved or distressed that Trump has not consolidated his power for certain political ends but recovering our democracy from the damage the President has created will ironically require a politician and a party to do just that.

Each one of Trump’s unchecked abuses is a precedent for the future, sitting there like a ticking time bomb, waiting for a future president to invoke, for better or for worse. Nixon’s expansion of the Vietnam War into Cambodia was largely considered illegal at the time. The Johnson administration had found no legal basis for such an expansion and Nixon’s relied on an ex post facto legal opinion made up out of whole cloth. Yet forty years later, according to Thomas Meaney, “the Obama Administration’s lawyers used the precedent of Nixon and Kissinger’s incursions into Cambodia as part of their argument to establish the legal basis for drone killings of American terrorist suspects who were outside the battlefield of Afghanistan”.

Ironically, Biden, assuming he wins in November, or whomever eventually replaces Trump, will be forced to engage in the same abuses as Trump in order to rectify Trump’s abuses and restore our democracy. Biden has pledged never to fire Inspectors General but he can’t be expected to let the partisan hacks that Trump has installed in those positions remain there. No, he will have to fire them and then probably set up some sort of independent board that will replace them.

In addition, we can not tolerate a repeat of 2008 where the criminals who caused the greatest financial collapse since the Great Depression not only walked away scot free, but walked away with millions. The crimes of the Trump administration must be prosecuted. But that too looks remarkably like Trump’s threat to prosecute his political opponents simply put into action.

Certainly, the next President should still make use of the power of executive orders. But, as the DACA recipients have seen, those orders provide no long term solution to the problem at hand. Executive orders are no substitute for real legislation. Most progressives, myself included, believe that the filibuster must be abolished if the Senate is to become a functioning institution again. But, even here, history should give us pause. In the face of unprecedented Republican obstruction, Harry Reid eliminated the filibuster for lower court judgeships. But all that did was empower Trump and McConnell after 2016, allowing them to fill the court with often unqualified partisans. With the current bias of the Electoral College and the small state bias of the Senate, eliminating the filibuster is more likely to further empower Republicans in the future. Eliminating the filibuster, then, without some electoral reform is likely to backfire and the only electoral reform that addresses both problems with the Electoral College and the Senate is the addition of new states, with DC and Puerto Rico the most likely candidates. But that would be seen as an enormous power grab, potentially further fueling GOP dreams of secession in eastern Washington and portions of Texas.

Similar problems exist when it comes to the courts. Democrats ended up hamstringing Obama’s judicial nominees when they re-instituted the blue slip rule in 2007. That, along with the filibuster, allowed the GOP to block many of Obama’s judicial nominees for his entire term. But when Trump was elected in 2016 and the GOP controlled the Senate, the Republicans summarily dropped the blue slip rule entirely, preventing Democrats from blocking even those nominees rated unqualified. Of course, Democrats can’t be expected to re-institute the blue slip rule again but rather need to be just as ruthless in getting their appointees confirmed while ensuring those nominees are actually qualified for the positions they will hold. How should Democrats deal with Merrick Garland’s stolen seat that deprived the liberals their first majority on the Court since the Warren era of the 1950s and 1960s. How to deal with a situation where Biden wins but the GOP holds the Senate and Ginsburg and/or Breyer need to be replaced. How to deal with a partisan district court judge in Texas slapping a nationwide injunction on an agency’s action, as happened with Obama’s overtime rules. Expanding the federal courts would certainly seem justified if for no other reason than the inordinate amount of time it takes cases to be completed, sometimes as long as half a decade or more in civil cases. But that too would be depicted as a Trumpian abuse of power.

When it comes to partisan gerrymandering, Democrats run the risk of again surrendering unilaterally by installing independent redistricting commissions in the states they control. Instead, David Frum has recently argued that Democrats should engage in what amounts to gerrymandering blackmail after the 2020 election. Frum proposes that if Democrats control North Carolina and Wisconsin when it comes time for redistricting in 2021, they create two maps — one an impartial and fair map and the other heavily gerrymandered for Democrats’ advantage. With those two maps in hand, then challenge Republican states like Texas, Georgia, and perhaps Ohio to create their own fair maps, with the explicit threat that, if they don’t, then Democrats will also implement their gerrymandered redistricting.

Donald Trump has abused the national security/national emergency powers of the president in unique ways — the Muslim ban; imposing tariffs; sending the military to the southern border; reallocating congressionally authorized funds to build his border wall; abusing the classification process to either attack his opponents or hide information from the public; and selling arms to Saudi Arabia over specific Congressional objections. With this in mind, progressives almost jokingly proffered the idea that a Democratic president could use such a national security exception to institute Medicare for All or the Green New Deal. But the economic and health crises that we currently face actually call for the use of national emergency powers that Trump has so far refused to use, except to force meatpackers back into an unsafe work environment.

Lincoln is considered the greatest American president. Yet Lincoln vastly expanded executive power through a broad interpretation of his war powers. He suspended the writ of habeas corpus and instituted military trials for civilians. He created the country’s first domestic spying organization, the Provost Marshal General’s Bureau. The Emancipation Proclamation had no real constitutional grounding and relied solely on Lincoln’s war powers as Commander in Chief. In short, Lincoln used almost autocratic powers in a quest “to create a more perfect union”.

And yet, the next President could be facing a crisis unlike anything we have seen in the history of this country, a crisis of democracy, an economic depression, and a pandemic all at the same time. Like Lincoln, the next president will be facing a country in which a large but distinct minority of the country no longer believes in the democratic principles that hold our country together and the past decade or more has clearly shown that these people will not be persuaded to change. They now make up the core of the Republican party. Through a quirk in history and the flaws in our Constitution, this minority also holds outsized political power compared to its numbers. Like FDR, the next president will be facing an historic economic calamity requiring expansive government intervention that will require upending current economic and political shibboleths.

Both Lincoln and FDR broadly expanded executive power in order to deal with the crises they were facing. Both tested the limits of their power, and sometimes exceeded them, in an attempt to save our democracy. Trump’s abuses have already expanded the range of executive power, which can be used for good or ill. Ironically, it will be up to the next president to use those powers in order to create the environment where our democratic system can finally restrain and diminish the concentration of power we have seen in all our constitutional branches, including those of the president himself. In other words, it will require the next president to do what Douthat says Trump has not, to wield the extraordinary executive powers that Trumpism has created, but in the pursuit of political policies that will allow for the restoration of our democracy.

Originally published at on May 27, 2020.


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