President Donald Trump has sometimes used the executive powers of the American presidency with ruthless aplomb. In an administration not conspicuously adept at working the machinery of government, he has effectively circumvented it. He has moved money appropriated by Congress to unauthorized purposes, paid no heed to proscriptions against emoluments, peopled the government with acting department heads unconfirmed by the Senate. He has revealed how many perceived constraints on the presidency are normative rather than statutory or constitutional—thereby dramatically increasing the powers of the executive branch.
Yet in the first real crisis to befall his presidency, Trump is utilizing virtually none of the powers of his office. Rather than bring the slippery inventiveness his team used when building the border wall or enacting the travel ban, he’s settled for ineffectual bluster. In an ironic turn, Trump is now acting much more like the kind of tightly constrained executive the authors of the Constitution had in mind. The United States could use a vigorous president right now—if not necessarily the imperial president whom historian Arthur Schlesinger Jr. famously described—but the incumbent has suddenly retreated at the worst possible time.
This passivity, this failure of creative administration, is not at all what the president’s critics feared. They feared executive overreach—and with some justification. The only American presidents with the temerity to argue that the president’s actions are by definition legal have been Richard Nixon and Donald Trump. Even Andrew Jackson argued only that the Supreme Court had no ability to enforce its decisions, not that it had no basis to judge.
President Trump’s failures during the COVID-19 pandemic have been legion, but they have not been the result of executive overreach. In fact, he has been incredibly slow to use those powers available to a president. He has not organized governors or international efforts or driven legislation, all traditional presidential actions during crises. When Surgeon General Jerome Adams, a political novice, tells the public that “these guidelines are a national stay-at-home order,” he sounds more like an imperial president than Trump does.
It’s mysterious that the president wouldn’t take a more activist role, since executive actions redound to presidential credit. Alexander Hamilton argued in “Federalist No. 70” that “energy in the executive is a leading character in the definition of good government.” Crises expand executive power; in such moments, presidents typically assume that they should do more—and the public usually agrees. That is why biographers and historians tend to focus disproportionately on wars and other calamities. Trump is showing no such inclination to take charge. He summarized his reaction at the White House lectern: “Governors are supposed to be doing a lot of this work.” So timid has been the president’s action that the head of the U.S. Conference of Mayors complained, “This situation is insane. It’s insane. Can you imagine in World War II everybody trying to outbid each other for what they need? We need to have one person, one operation that facilitates this whole thing.”
Except during national emergencies, the more common complaint is that the White House is too strong relative to the other branches. Fear of a presidency burgeoning beyond its constitutionally prescribed role took root in the Nixon years, with Schlesinger, a historian of the Kennedy era, coining the phrase “imperial presidency” and capturing the anxiety of the times. Schlesinger worried that America’s persistent involvement overseas permitted the president to leapfrog over the Founders’ central preoccupation, which was circumscribing the arbitrary exercise of executive power.
America’s Founders expected Congress to be the dominant branch of government, and established separation of powers to allow the president and the courts as checks on Congress. Schlesinger, too, argued that a more activist Congress is the constitutional port of first resort—that is, the place where those seeking to change public policy should begin their efforts. After Watergate, Congress enacted legislation constraining the executive branch so effectively that Nixon’s successor, Gerald Ford, complained that the United States risked an “imperiled presidency.”
Yet the power of the president still grew and grew. Early last year—which is to say, long before impeachment happened or the coronavirus occurred—the scholars Kevin Kruse and Julian Zelizer argued that Trump, because of consistently low approval ratings, was “a shockingly weak president.” Nevertheless, they contended, because of the expansive emergency powers available to any American president, “Mr. Trump has illustrated that even a feeble commander in chief can impose his will on the nation if he lacks any sense of restraint or respect for political norms and guardrails.” Three important scholars of the presidency recently concluded that “the balance of power on foreign policy isn’t shifting back toward the legislative branch.”
But that was before the pandemic, during which the president has proved manifestly unwilling to use the executive powers of the presidency. Nor have the president’s men capitalized on the opportunity of a crisis to expand executive power. Quite the contrary: The president is forgoing what powers the office does have in order to avoid responsibility for outcomes. Alexander Hamilton and James Madison did not see that coming. Into the vacuum this un-imperial president has left, desperate governors from states hard-hit—including Jay Inslee of Washington, Gavin Newsom of California, Phil Murphy of New Jersey, and Andrew Cuomo of New York—are rushing, and to good effect. The Founding Fathers would admire that, because the devolution of power from the president is how the American political system was designed to work. Departments have wide latitude to take administrative action without presidential authorization. Congress has the ability to check the president, as do the courts. And state governors’ independence provides the laboratory of leadership and policy experimentation on which the federal government draws.
Of course, governors can’t engage in deficit spending, waive federal regulations, invoke the Defense Production Act, or enlist the Federal Emergency Management Agency to distribute needed supplies. In practice, Congress is sloppy and often solves the wrong problem. The courts work slowly and redress only specific grievances. The system the Constitution dictates is not as efficient as a unitary executive directing action. It wasn’t designed to be efficient. It was designed, though, to prevent exactly the kind of aggregation and abuse of power that President Trump’s critics fear him capable of.
Still, devolution is easier to defend when states aren’t competing with one another and the federal government for a limited supply of ventilators. The imperial presidency should lose power over time—just not abandon it abruptly when hundreds of thousands of lives are at risk.
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