A lot of headlines of the moment use phrases like this: "Trump Tests US Constitutional Order,” or “Fear of Constitutional Crisis.” The stories, unsurprisingly, are largely written from a left-wing perspective concerned about executive overreach, even to the point of subverting the Constitution. The implied solution is that Democrats need to stand up to executive power and find some way of limiting the president’s powers and actions.
In a sense, this is a good implication of the basic system of checks and balances set up over 200 years ago to cause “ambition … to counteract ambition,” as James Madison put it in Federalist 51. But there is a problem lurking here. Right now, and for the few decades, that executive power has grown and grown, partisans essentially want a partisan check on things the out-party president is doing, but they are not interested in an institutional check on the powers of the presidency itself. Frankly, this strategy is not going to work.
Now that Trump is president, Democrats have found enormous wells of resistance to executive power. But where were they when President Joe Biden was engaged in executive overreach? Many essentially ignored Biden’s constitutionally questionable actions such as attempting to suspend student loans, disregarding Supreme Court rulings on rent control, or using a heavy hand with freedom of speech on social media to support his own priorities. At times, Democrats would actually urge Biden to literally ignore court decisions and just plow through checks and balances.
At the time, Republicans could speak passionately about ways in which Biden was subverting the Constitution or pushing executive power beyond the bounds of reason and toward a “constitutional crisis.” But these days, Republicans have little interest in containing presidential power. Instead, they are much more worried about President Donald Trump’s power being limited in any way.
Superficially, this all looks like checks and balances. Partisans are checking the other side, so politics is working.
Well, not really.
We do not have a Constitution set up to make partisan checks really viable unless the party wins an overwhelming majority in Congress. And more importantly, the partisan checks of the moment are fraudulent.
First, the Constitution envisioned Congress checking the president’s power and asserting its own power, or for the Supreme Court to check the president. Similarly, presidents are supposed to push back on bad ideas that emerge from Congress. Our partisan leaders could certainly participate in that process, but it is a process about institutional power and not about partisan wins.
What is really getting lost at this moment is that it is not possible to create an institutional check when you only care about executive overreach from the other side. Democrats who cannot be stirred to wonder if Biden really has the power to simply appropriate billions for student loan forgiveness did not leave themselves in a strong position to object to Trump’s overreach today.
As columnist Bret Stephens noted this week in the New York Times, “some of what Trump is doing is simply a turbocharged version of what his liberal predecessors did while the mainstream press remained mostly mum. Remember Barack Obama’s threats of unilateral executive action through his phone and his pen? Or Joe Biden’s almost open flouting of the Supreme Court with his student loan forgiveness schemes?”
Republicans will one day (perhaps in four years?) be in a similar position when President Gavin Newsom (or someone like him) declares that he is able to reshape all of welfare policy and government spending without any congressional input.
As long as partisans are only interested in opposing presidents of the other party, there will never be an effective check on the presidency. And the likely consequence is that presidential power will slowly grow larger and more powerful. The president of 2050 will have powers that Biden and Trump might literally drool over.
No one really intends this. There is no secret clubhouse meeting where Democrats and Republicans get together to tell stories about how they are empowering presidents of every party (well, to my knowledge this doesn’t exist, though it sounds like fun). But the two parties are still slowly producing that effect by making sure that there is never an effective coalition to institutionally check the president.
Each party will claim that they oppose excessive executive action. But they take no clear actions to limit the institution either because Madisonian compromise is simply too high a price to pay or because they need to preserve executive power for that moment when their party is in power.
Those in Congress could choose today to reach out to the other side and see how a coalition could be built to effectively constrain all presidents, not just presidents you do not like. I’m not holding my breath for this, but there have been moments in American history when it happened. FDR accumulated a lot of power, but when he tried to bully the Supreme Court, Democrats got together with like-minded Republicans and stopped him. In their turn, Republicans checked Nixon once they realized what he had done.
Of course, if one of the parties actually could produce a really large coalition this might not even be necessary. 300 Democrats controlling the House of Representatives or 58 Democrats in charge of the Senate could do a lot to rein in the Republican president, as could Republicans with similar numbers rein in a president of the other party. However, both parties have made it clear over the past 30 years that they are not seriously planning on these types of majorities. No party has won a large and durable majority in more than a generation. And if we wait for this to happen before limiting presidential power it probably never will happen.
What can the rest of us do? We can hope the courts will take effective steps to address executive actions, focused on the law and Constitution. And the public has the right to seek actions from its representatives in Congress.
When Democrats scream about Trump’s abuses, they ought to be asked (and ask themselves) why they were not interested in limiting Biden.
Republicans right now should also get questions about why it is a good idea to let Trump do whatever he wants. Who will Democrats deport in 2029? How will they bully institutions like law firms, conservative media, or conservative schools? Why is that acceptable? Republicans will respond that such things are unlikely and that people should push back on such things if they ever happen. Still, they will have helped set the precedent that presidents should be able to do whatever they want.
Partisans reading this are thinking that the real question is which side’s sins are worse? They want us focused on which party to choose, not the question of executive power itself. And as long as we stay focused on which party is worse, executive power will slowly grow and grow and grow.
No one will intend for presidents to have massive levels of power. But they will have it all the same, and they will have it because a partisan check on presidents was destined to be ineffective. Those who only want that kind of check should just admit that they are not really that interested in any check at all.
Jeremy C. Pope is a Professor & Constitutional Government Fellow at the Wheatley Institute, Brigham Young University.