Mr. No-Government President Discovers the Government

Posted in: Constitutional Law

President Donald Trump will keep historians and psychologists busy for decades as they plumb the depths to figure out how someone as untrustworthy, rude, and unprincipled was elected president of the most powerful country in the world and then stayed in power (for however long that happens). Then there are the fascinating questions regarding how his adult daughter can defend his “positive” attitudes toward women despite all evidence to the contrary. Lots of academic fodder.

But we have to live in the present, and so we have the challenge of coming to grips with the history unfolding right before us. What you are watching is the beautiful, though very messy American constitutional structure come to life. That is just what the Framers wanted in such times. The Constitution to them was a machine. Each element has its assigned job. No one element can succeed alone. The other pieces check the operation of the one piece and vice versa. They did not expect the precision of a watch but they did hope that this construct would tend toward the public good and away from individual self-dealing.

See, they believed that every individual who holds power will be tempted to abuse it, and that government structures must operate at cross-purposes to check each other. That principle is alive in three spheres: (1) the separation of powers between the three federal branches, (2) the separation of power between the federal government and the states, and (3) the separation of power between church and state. They knew, and they were absolutely correct, that power unchecked is dangerous and combinations of power are dangerous to the people and the common good.

Trump entered the White House with a minority of the American vote. Thus, he carried no mandate but he marched into the Oval Office as though he were the country’s savior who was brought to Washington to unilaterally and immediately dismantle as much government as he possibly could. His campaign said he wanted to “drain the swamp,” but it became quickly apparent he actually wants to dismantle the federal government, except for the military.

He composed a cabinet of “anti-________” people. Each cabinet pick was selected not to carry on the policies that are the culmination of our history but rather to tear down the department. The one department to be enriched and where fully qualified people were appointed for the purpose of its flourishing is the Department of Defense.

With the swipe of a pen, he rolled back regulation after regulation trying to make the Departments of Education and Energy and the EPA disappear. In any other system, this man would be a despot. But he’s in our system where he does not exist alone. For every executive order he issues, Congress has the power to enact a law that modifies his latest move. Moreover, Congress has no obligation to follow his lead, which it will not on the EPA. Everywhere he looks to unilaterally conform public policy to his extremist tendencies, he is learning that hurdles have been intentionally constructed.

Among the three federal branches, the courts were the first to come out of the mist and remind us that, yes, even a president as cocksure as this one is limited by the Constitution, federal law, and plain old facts. The Constitution, which the courts enforce, has been a sticking point for him. The first travel ban and then the second are held up in court, as well as his sanctuary city funding threat. For a while it seemed the only Senators with the guts to play their appointed role of foil rather than servant to the president were Senators John McCain and Lindsey Graham, but they have now been joined with others who have finally figured out that history will judge them by their own actions, and that Congress is a check on the president, not his personal tool for self-aggrandizement. His American Health Care Act proposal (to replace the Affordable Care Act) could not be passed despite his arm-twisting and the White House bowling alley.

But the separation of powers is not limited to the push and pull between federal branches. We also have seen the states rise up against the new federal demands he has imposed on them, whether it be changes to the ACA and Medicare or threats over immigrant sanctuary policies.

These structural limitations do not favor one party over another, but rather are tools in the hands of either side in any given era.

There is deep irony in this Republican president wielding the Executive Branch like a teenager in a Corvette, because Republicans have railed against the size of the administrative state and the power of the president for decades. Now they have a president of their own who has aggressively embraced the power of the presidency as he pursues measures some Republicans have sought for ages. Despite this display of machismo in the Oval Office, there is largely silence from the Republicans right now on the evils of an imperial presidency.

When a conservative (though now in hindsight moderate) Supreme Court revived the federalism doctrine in the 1990s by modestly increasing states rights and correspondingly modestly limiting Congress’s power over the states, many liberals argued that federalism is inherently conservative. For example, in many law schools, the sky was falling when United States v. Lopez was decided. As this era proves, they were wrong, wrong, wrong. Federalism is what makes it possible for the party out of political power in Washington to pursue its agenda. The states standing up against the president and his policies are a prime example of the system working as it should.

Finally, there is also the separation of power between government and the people. As I discussed here, we have the power of judgment, criticism, and communication, which we must never give up. That judgment is reflected in recent polls, which shine a harsh light on the overreaching of a president who imagined a mandate he did not have.

All in all, this odd and often shocking president is where he should be: a cog in the wheel of public policy, not a solo pilot. While it hasn’t happened in the first 100 days, with all elements of the system pushing against each other as they are, there is reason to believe that something good could come out of this presidency for the United States and not just one Donald J. Trump.

5 responses to “Mr. No-Government President Discovers the Government”

  1. Nataly Trump says:

    First you want to make fun and vote for Trump (not my husband) and after you are crying. What’s wrong with you, people?

  2. Frank Willa says:

    Professor, thank you for your review of the first 100 days. I do hope that you are correct in that the Republicans in congress will exercise their independent role as a co-equal branch of government and act as a check on this most unlikely of presidents. My take on how he came to power is the story of the conservative wave that has dominated our national scene since January 20, 1981, when another unlikely president took office. Although that administration is praised by the beltway media in spite of the result that after 8 years nearly half of Americans had a lower standard of living and the national debt had quadrupled; and given credit for economic expansion that was simply the coming of age of the baby boom that was foretold in the 1960s, and the decline of the U.S.S.R. that was the product of policy from the 1940s onward, especially the Carter build up of Naval forces that had the Soviets tried to match would have collapsed their economy, it began the dominance of the conservative propaganda. It is this shaping and cultivation of a significant portion of the population with notions of a distorted and oversimplified narrative that brought Trump to office. Recall, that the beltway media did not dismiss the ” birther” fabrication as beyond rational, but let it run until a significant portion of the population believes it even today. So, here we are with these conservative notions ingrained in our public discourse, to which there is no factual basis, but sound good to those that have heard them for many years. There also are the notions that those with little or no knowledge and even less sound judgement can evaluate complex issues that really require expertise of graduate education and years of experience; such that a bricklayer or welder can dismiss what a PhD. in Economics says. It is true that many in our economy have been left behind, but it is the result of ” Reaganomics “, not the pro government policies of liberals. They have chosen more of the same, not the antidote.

  3. Brett says:

    What a disgusting, disrespectful article! Why personal attacks? Apparently Ms. Hamilton doesn’t have any substance on her side to try to rely upon. And was Ms. Hamilton making the same comments towards Barack Obama’s extensive use of executive orders? And no, the President is not trying to dismantle government and government agencies. I worked at EPA for six years and can tell you that the waste in federal government is extensive and that is exactly what Mr. Trump has targeted. A degree in rocket science is not required to Ms. Hamilton may wish to examine facts for a change. And to advocate that states disregard federal law is shocking (and to do so to harbor criminals is disgusting). Violation of the law, contrary to Ms. Hamilton’s strange statement, is certainly not “the system working as it should”, it is quite the opposite. Also, Mr. Trump is not an imperial president, as Ms. Hamilton states; indeed, her article contradicts itself when she states that he is allegedly dismantling the government. He of course is not, as I stated above, he is trying to reign in a too-often out-of-control government that is consuming large amounts of hard-working peoples’ incomes and creating such extreme dangers as the Obama administration’s spying on a presidential candidate. It is also odd for a liberal to now effectively embrace the Tenth Amendment, when the last eight years for liberals it was all about the federal government’s power. Also, the rulings against the temporary immigrant travel ban from seven and then six nations were certainly not constitutionally based, despite Ms. Hamilton’s desires; they were political decisions that shockingly ignored the applicable statute (which is very clearly drafted), duly enacted by Congress (8 U.S.C. 1182(f)), that allows a president to restrict entry into the United States for national security reasons (here, the infiltration of terrorists into the United States, of which Ms. Hamilton apparently has no concern).

  4. Victor Grunden says:

    It is interesting that this article never mentioned that President Trump followed a person who sought to fundamentally transform America. And when Congress that represents the people countered his fundamental transformation he just used his pen, phone and civil disobedience to get his way. This behavior has been seen before. Those of us that served in the military during the draft days were shown a series of 7 films entitled “Why We Fight”. Film 1 showed how a representative government was overthrown. There was always an excuse to shut down the representative part of the government. Then under some misinterpretation and pretext of the law a sympathetic court would endorse the executive’s actions. The judges claiming that economic damage is superior to safety and security concerns is a stretch no matter how you look at it. Secondly, many of the taxpayers in those states support the colleges and universities with their tax dollars yet many of their children are unable to attend those institutions of higher learning because of money and diversity. Most taxpayers are unaware that 20% and more of the students attending these schools are not from America. That increases the physical costs of buildings as well as staff. So the Court greatly exceeded it’s authority while Congress in it’s usual compliant foot dragging way to irrelevancy did nothing. Much as the Japanese Diet, German Reichstag and Italian Parliamento were made irrelevant before WWII by Hirohito, Hitler and Mussolini. That series of films is also very informational about the role street riots play in the transformation(elimination)of representative government. It’s on YouTube for now but if they take it down it can still be found in the archives and is well done by Frank Capra. It seem to me that Trump was very much in tune with the film makers. Maybe they were wrong too.

  5. Nightowl223 says:

    I sincerely hope this writer is not just being optimistic. Me, I’m not very optimistic that we will get out of this presidency with anything like the strong protections for workers, women, children, the elderly, the disabled, or veterans we have now. We don’t even have decent protections for minorities, and he’s intent on destroying those, too!