Fighting the Last President

Greg Weiner is Provost and Vice President for Academic Affairs at Assumption University. He is also a Visiting Scholar at the American Enterprise Institute. He is a regular contributor for The Constitutionalist.

Editorial boards, like generals, fight the last war. The Boston Globe’s did in a recent six-part editorial series called “Future-Proofing the Presidency.” Admirably intended as a series of proposals to prevent future presidents from debasing the White House like Donald Trump did, the legal mechanisms and norms on which it relies seem conspicuously designed for one purpose: to prevent a billionaire carnival barker from being elected to or abusing the Oval Office.

That is the case more broadly for attitudes toward Trump. Many of his critics are concerned less with protecting the office than with protecting against the man. That reversal between the occupant and the office was one of the chief maladies of Trumpism. It should not be repeated. If the office is to be future-proofed, the object of reform should be exactly that: the office, not any individual who might occupy it.

Doing otherwise miscasts the extent to which Trump was sui generis. We should learn from what happened on his watch, but the man—as opposed to the style of politics, which should not be dignified as a “theory”—was a unique phenomenon. Had Hillary Clinton not taken the upper Midwest for granted, he would not have slipped through.

Might Trump return to office again? Perhaps. But the constitutional order and the norms surrounding the presidential office should not be shaped solely to impede him. The next wave of Trumpism, which remains dangerous, belongs to demagogues like Senators Josh Hawley and Ted Cruz who are creatures of politics rather than show business.

What will impede them are not precision-guided constitutional missiles but rather a diminution of our obsession with the presidential office. Excess power attracts showboats and lowlifes. An office with significant but defined—and dignified—authority is less likely to.

In that, those concerned about Trump’s venality, nepotism and abuse of office, misdiagnose the root malady: the power of the executive, which has become boundless and undefined, and the utter collapse of countervailing power from Congress. It is thus ironic that the proposed Constitution recently published by Democracy: A Journal of Ideas seems acutely concerned with Trump in some cases—such as an apparent suggestion that Congress could remove some executive officers from presidential jurisdiction, or the specification that the president cannot pardon himself or herself—but would also vest the office with an extraordinary and sweeping range of emergency powers. (On this proposal, our blogging colleague Jeffrey K. Tulis’ eloquent dissent on a range of matters is well worth reading, especially his analysis of rights.)

Donald Trump was not the first celebrity president, nor the first imperial one. His immediate predecessor was beheld with near-messianic rapture. Barack Obama’s opinions were sought on everything from foreign policy to college basketball to Kanye West. Presidential power has been growing for decades, and it surged under George W. Bush overseas and Obama at home.

That was not the kind of office Hamilton had in mind when he wrote in Federalist 68 that the process of presidential election “affords a moral certainty, that the office of President will never fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications.” The office inevitably shapes not only its occupant but also its aspirants. The Framers future-proofed the presidency by limiting its powers and counterposing Congress’ to them.

It is doubtless true that Congress has failed in this duty. Ideas for goosing it to rein in the presidency merit consideration. The editors of The Globe, for example, call for tighter anti-corruption and anti-nepotism laws as well as constitutional reform of the pardon power and enhancements of transparency like disclosure of presidential tax returns. They also endorse more stringent Congressional oversight, including enhancement of the legislature’s subpoena power, and strengthened protections for whistleblowers.

The Globe also notes that “Congress is supposed to be the main check on the presidency” but that the impeachment power is too “blunt” and “ineffective” to do that job. The power is not ineffective, but The Globe is correct that those who wield it have been. As to its bluntness, the impeachment power exists not for frequent but rather for conceivable use. Like most punishments, it is meant to serve as a deterrent. If impeachment becomes unthinkable, its deterrent power is diffused. (The Democracy Constitution’s specification that impeachment is not civil or criminal in nature is a better approach for reviving it.)

More broadly, these reforms—some of which are surely good ideas, others of which are probably not, and all of which deserve a careful reading—do not future-proof the presidency. They future-proof it against Donald Trump.

That is good and well—extreme cases can reveal underlying faults in the regime—but the next abuser of the presidential office is not likely to arrive striding beneath a golden combover and sitting atop primetime ratings. Moreover, the fact that Trump abused the office crudely and for personal gain should not detract us from the larger problem of presidents abusing their office in the name of the public good. That is the danger against which the Framers fortified the presidency by counterposing Congress to it. A constitutionally motivated Congress should be as alert to abuses of executive orders to accomplish good things as it is to presidents who hire their-sons-in-law and daughters.

Most important, to future-proof the presidency against tyrants, the office must be shorn of tyrannical powers. A surgical operation against Donald Trump may be worthwhile. As a matter of constitutional reform, the presidency has bigger problems.

None of this is to assert anything approaching equivalence between Trump and his recent predecessors. Bush abused his war powers to sink the nation into two decades, and counting, of conflict. Obama abused executive action to accomplish his objectives on health care and immigration. But neither debased the office or incited insurrection. If our most urgent priority is future-proofing the executive office against treasonous presidents who pervert elections, the office has bigger problems than one man.

So do we. Any reform must be attentive to the superintending responsibility of voters. Otherwise reformers leave the impression the whole problem is Donald Trump and the entire solution is legal mechanics. But Madison said neither laws nor constitutions could save a people willing to elect usurpers. Perhaps, after perusing The Globe’s worthy series and other proposals for reform, we might spend some time looking in a mirror as well.

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