- While media attention remains fixed on Donald Trump, focusing too intently on the president obscures the profound role played by the institution of the presidency and the stress test it faces.
- The presidency was constitutionally created to be empowered, but is restrained by the legislative and judicial branches of government. It has accumulated greater powers over time, but institutional and normative checks have remained in place.
- Five factors determine the outward limits of a president’s power within this constitutional framework: the circumstances in which they came into and occupy office; the president’s political standing and popularity; the degree of friction between the different branches of government and between the states and national government; the president’s ability to control the bureaucracy; and the president himself.
- How these factors interact determines the shape and the impact of a president’s term.
- Donald Trump’s ability to reshape the office, probe the boundaries of American political discourse and transform America’s place in the world will be a product not just of his will, but also of the effectiveness of institutional constraints on presidential power.
- One year into his presidency, there are signs pointing to both the resilience of the American system and to the corrosive effect Trump’s actions have had on it.
- Trump, like all previous presidents but perhaps more so than most, will continue to meet bureaucratic friction — some of it endemic to bureaucracies, and some unique to his presidency.
- Because the president is ultimately less constrained in foreign policy than in domestic affairs, Trump’s presidency will continue to cause international concern by its very unpredictability.
- Trump’s unpredictable policies have created a credibility gap; the president is no longer seen as having the final word on foreign policy and national security, and is often bypassed.
Today, it seems pretty hard to escape Trump. From his constant tweets, to his repeated transgression of American political and cultural norms of behaviour, to his evident pleasure in provoking and distracting the American public, Trump’s antics seem to dominate every waking moment. In many ways, it is as if Trump, having reached the commanding heights of American politics and global power, has commandeered centre stage in a Shakespearean play, proclaimed that “all the world’s a stage”, and condemned the rest of the world to the role of the audience. And it is with a mixture of fascination, bewilderment and anxiety that the world waits to find out if this play is a history, comedy, or tragedy.
Focusing too intently upon Trump, however, obscures profound issues surrounding the American presidency. Assessing the likelihood of change and making sense of the present requires a broader understanding of the presidency as an institution. There is no way of knowing how long-lasting the effects of Trump’s presidency will be on the office and the norms that have long governed American democracy. In fact, one year in, there are signs that point in both directions — to both the resilience of the American system and to the corrosive effect Trump’s actions have had on it.1 For all the confusion, disruption, and chaos of Donald Trump’s term thus far, he will continue to possess the immense powers of the American presidency, while also being frustrated by its many constraints.
Presidential power: A short history
From America’s founding in the late 18th century, the framers of the US Constitution imagined the presidency as simultaneously powerful, constrained, and a work in progress. These seemingly contradictory impulses arose out of the historical experiences of rejecting monarchy in their war for independence and experiencing disunity and disorder in the period after independence. When the founding fathers drafted a constitution for the United States they did so consciously trying to steer a middle path between the abuses of royal tyranny and the chaos of weak central government. In practice, this meant the presidency is the head of the executive branch, but it is a co-equal branch of government with the legislature (Congress) and judiciary (federal courts). The president could not unilaterally enact legislation, interpret the constitution, appoint cabinet officials or dictate the government’s budget. Yet the president was still given more power than any other individual in government as the only elected officeholder accountable to the entire American populace. The checks and balances inherent to the constitution meant that the office of president was created to be empowered by the people, but restrained by the legislative and judicial branches of government and, like the Constitution itself, capable of changing as the times dictated.
The president according to the Constitution
The US Constitution is the supreme law of the United States, outlining the structure of the federal government, delineating the powers of the three separate branches of government and establishing the concept of federalism, which divides sovereignty between the federal and state governments. Article I posits the powers of the legislature; Article II the executive branch (the presidency); and Article III, the judiciary.
Article II of the US Constitution enumerates the role, power, and limitations on the American president. It does so in four sections, with the first defining the four-year term of office, the method of election, the necessary qualifications, compensation, and oath of office. The second section enumerates the president’s constitutionally prescribed roles as commander-in-chief of the military and head of the various executive departments, and gives him the power to grant pardons (except in the cases of impeachment), make treaties subject to the Senate’s approval, and nominate judges, ambassadors and officials.
The third article proscribes the president to inform Congress on the state of the Union, recommend policy for their consideration, and execute the laws; the fourth provides the circumstances for removal from office.
Subsequent constitutional amendments revised the indirect election procedures of the president through the Electoral College (12th Amendment), shifted the start and end dates of presidential terms (20th Amendment), limited to two the number of times a person can be elected president (22nd Amendment), and outlines succession procedure if the president dies, resigns, is removed from office, or is otherwise unable to discharge the powers of the presidency (25th Amendment).
The president, as outlined by the Constitution, was to play multiple roles in the American republic: commander-in-chief, head of state, and chief executive of the federal government.
As one scholar of the American presidency recently observed, “the enduring strength of the office comes from its original lack of definition”.3 This was because the Constitution merely sketched the roles and functions of the presidency, leaving open the interpretation of its powers. Most presidents have nonetheless held an expansive view of the power the Constitution afforded the executive branch. Nowhere is this more true than in the realm of national security. One of the founding fathers, Alexander Hamilton, argued that as “the circumstances that endanger the safety of nations are infinite… no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances”.4 The lack of clarity over the extent of executive power, however, left other founders concerned that this ambiguity could be abused. According to George Mason, a delegate to the 1787 Constitutional Convention and inspiration for America’s Bill of Rights, “if strong and extensive powers are vested in the executive and that executive consists only of one person, the government will of course degenerate into monarchy”.
Arguments over the appropriate size, scale, and scope of the executive branch, and indeed of the entire federal government, drove the ratification debate and much of American political history from that point forward. Theodore Roosevelt, who served as president from 1901-1909, posited that unless expressly prohibited by law or the Constitution, the president could “do anything that the needs of the nation demanded”.5 Such a view was as contested in the early 20th century as it is today. And it points to the necessity of examining the personalities that have shaped, and been shaped by, the presidency.
Theodore Roosevelt, who served as president from 1901-1909, posited that unless expressly prohibited by law or the Constitution, the president could “do anything that the needs of the nation demanded”.
Successive presidents redefined the presidency — its job description, its role, and its powers. America’s first president, George Washington, set precedents with everything he did. His aim was national stability, and he attempted to set the government’s general direction, establish a rough balance between the three branches of government, and restrain public passions where he could. Andrew Jackson, who served as America’s seventh president (1829-1837) broke the Washingtonian model of a disinterested, apolitical, and restrained president, riding to power on the back of a newly formed political party. In this view, the president, acting as the sole representative of the entire American public, was charged with protecting the national interest against manipulation by privileged elites, entitled to stock the federal bureaucracy with like-minded officials, and was required to fight against the other branches to carry out his program. Abraham Lincoln, America’s 16th president (1861-1865), remade American society through rhetoric and action, expanded executive power to an unprecedented degree, and transformed the role of commander-in-chief. Theodore Roosevelt (1901-1909) responded to the Industrial Revolution’s social disruptions by rejecting the idea of limited government, regulating business, using the “bully pulpit” of the presidency to promote social and labour reforms, and fashioning the Executive Order — a power unique to the president that remains under increasing scrutiny for its constitutionality — into a driver of policymaking. 6 He also actively worked to maintain a favourable balance of power in Asia and Europe, solidified America’s forward presence in the Pacific, and initiated the largest peacetime buildup of naval forces in American history.7
Modern presidents continued to redefine the scale, scope and power of the presidency. Franklin Roosevelt (1933-1945) not only reimagined the social contract with the creation of the modern welfare state, but also gave the White House a central role defining the legislative agenda, making the president both the originator and enforcer of policy. A master at communicating directly with the public through the radio, his “fireside chats” shaped the image of the president as caretaker of the American people. And, most significantly, Roosevelt brought President Woodrow Wilson’s (1913-1921) internationalist vision of collective security into practice by presiding over the birth of the United Nations, and successfully guiding the nation during World War II. Harry Truman (1945-1953), presided over the militarisation of the Cold War and subsequent creation of modern foreign policy and military establishments of the US government, including the National Security Council and Central Intelligence Agency. President Ronald Reagan (1981-1989) oversaw a massive arms build up and the end of the Cold War while working to diminish the role of the government in American life.
Of course, there have been plenty of examples of failure as well, and presidential power expanded in fits and starts. John Quincy Adams preceded Jackson, James Buchanan served ahead of Lincoln, and Herbert Hoover came before Franklin Roosevelt. And that says nothing about the long list of mediocre and forgettable presidents who were largely subordinate to a powerful Congress.8 But even such a partial list of transformative presidents suggests that the presidency is greatly shaped by particular occupants and their views.9
The extent, and limit, of presidential power
In addition to his or her official position as head of state, head of the federal government and commander-in-chief of the US military, the modern president also takes on the responsibilities of party leader, legislative director, appointer-in-chief, and chief spokesperson. This grants the president the power to set the tone and policy for their party, drive a legislative agenda and propose a budget, appoint thousands of federal employees and nominate hundreds of federal judges, and use the office to influence policy by persuading the public, Congress, and the executive branch itself.10
Yet for all his or her power, there are multiple constraints on the exercise of it. The Constitution checks presidential power by including two other co-equal branches of government — the legislative and judiciary. Further, the president is limited by the federalist structure of the government, which established dual sovereignty between 50 independent states and federal government. There are further constraints inside the executive branch, as different agencies and departments — ranging from State, to Defense, to Treasury to the various intelligence agencies — compete for resources and operate quasi-independently of each other.
The president is limited by the federalist structure of the government, which established dual sovereignty between 50 independent states and federal government.
In practice, five key factors have determined the outward limits of a president’s power within the constitutional framework: (1) the circumstances in which they came into and occupy office, (2) the president’s political standing and popularity, (3) the degree of friction between the different branches of government and between the state and national government, (4) the president’s ability to control the executive branch bureaucratic machinery, and (5) the president himself. How these factors interact determines the shape and the impact of a president’s term in office. While such evaluations are necessarily subjective, they nonetheless offer a useful set of criteria to evaluate presidencies and their subsequent legacies.
Throughout American history, the general rule has been that the more existential a threat seems, the more sweeping the powers afforded the president. Indeed, the most sweeping expansions of presidential power have come during war and economic crises. As Abraham Lincoln, possibly the most powerful president in US history, professed: “I claim not to have controlled events, but confess plainly that events have controlled me.”11 That is not to say that Lincoln had no control over his circumstances, but that the skilful manipulation of circumstance is what facilitates a president’s effective exercise of power. This is what Rahm Emmanuel, Barack Obama’s first chief of staff, meant when he reflected upon the financial crises and the major reforms that the Obama administration implemented, saying “you never want a serious crisis to go to waste… [as] crisis provides the opportunity for us to do things that you could not before”.12
It is only extraordinary circumstances that yield extraordinary powers, such as the suspension of habeas corpus during the Civil War, the curtailment of political dissent during World War I, and the internment of Japanese-Americans during World War II. Of course, circumstances are not just the product of unforeseen and momentous events. Whether a president is in sync or at cross-purposes to the prevailing national mood will dictate the amount of support or resistance a president encounters for their programs.13
The exercise of presidential power is also affected by the different stages of an administration’s tenure because its composition, policy inclinations, and relative power shift over time. Presidents often assume office with a fair amount of political momentum and are more likely to push major legislative items early, as was the case with Obamacare.14 While presidential campaigns typically promise a wholesale rejection of prior policies, an administration’s first year in power generally offers a mixed repudiation and selective, if quiet, embrace of the immediate past.15 Historically, the president’s party generally loses midterm congressional elections, as seen in the Bill Clinton, George W. Bush, and Obama administrations. 16 If a president is defeated during a re-election campaign he becomes a “lame duck” as foreign and domestic observers shift their focus to the incoming team.
But circumstance and prevailing national mood alone cannot explain a president’s ability to ‘get things done’. A president’s power, in the famous formulation of Harvard professor and White House advisor, Richard Neustadt, is “the power to persuade”. That power is based in large part on the perception of a president’s competence and popularity. Powerbrokers of all stripes — political, military, diplomatic, business and media — constantly calibrate their level of support or defiance of an administration based on their ongoing assessments of a president’s skill and willingness to act, and his standing with the general public.17
To Abraham Lincoln, public opinion served as the critical foundation of all politics and policy, because “he who moulds public sentiment... makes statutes and decisions possible or impossible to be executed”.
In practice, the higher the perception of a president’s prestige, the more support he will garner for his agenda; and the lower it falls, the more resistance it will generate.18 Popularity plays a role here. Lincoln, America’s most rhetorically gifted president, understood the importance of cultivating public opinion, arguing that “public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed”. To Lincoln, public opinion served as the critical foundation of all politics and policy, because “he who moulds public sentiment... makes statutes and decisions possible or impossible to be executed”.19
Where a president stands in public opinion can also set boundaries on the level of compliance he receives from members of his party in Congress, and sometimes those from the opposing party as well. This was evident in the bipartisan support that George W. Bush received for his massive national security expansion amid 90 per cent approval ratings following the attacks on September 11, 2001. Getting things done, of course, takes much more than popularity. A president can be popular but still be unable to persuade political actors to do what he wants. While ideology plays a role, these calculations are rooted in an assessment of whether their own interests are likely to be served by supporting the president.
Separation of powers
While it is a common belief that the three branches of the American government hold separate powers, in practice they hold overlapping and mutually dependent power, making it very challenging for a president to impose his will on the government for too long — or, at least not without the tacit consent of those other two institutions.
The built-in friction to the machinery of the US government is clearest in the realms of law, finance, and national security. The federal courts hold the power to declare the legality of a law or an administrative action. As Franklin Roosevelt found out when the Supreme Court declared much of his legislative agenda unconstitutional and as Trump learned when the federal courts repeatedly struck down his immigration ban, the judiciary can limit a president’s agenda.20 Yet, the judiciary and presidency are more co-dependent than exclusionary, as it often takes executive power to enforce the court’s decisions. Responding contemptuously to a decision contravening the White House’s policy of Indian Removal, Andrew Jackson was said to have declared that John Marshall, the chief justice of the Supreme Court at the time, “has made his decision; now let him enforce it”.21 This cuts the other way as well: Dwight Eisenhower’s decision to use federal troops to enforce the Supreme Court’s landmark 1954 ruling that declared segregation in public schools unconstitutional ensured compliance with the law.
Presidential power remains contested, and congressional restraints, timetables, and committee hearings influence an administration’s calculations on the timing and advisability of using military force.
If there are overlapping and competing sources of power regarding the enforcement of laws, this is even more true with the making of them. The president often serves as legislative leader, but it is Congress that enacts law. President John F. Kennedy lamented that while the president’s ability to veto congressional legislation made it “very easy to defeat a bill in the Congress. It is much more difficult to pass one”.22 The difficulty varies based on the partisan composition of the House and Senate, but even when a president’s own party controls Congress there is no guarantee that they will master the necessary political horse trading entailed with legislation. This is even more true in fiscal matters where the president proposes a budget but has to wrestle with Congress for passage. Congress jealously guards its possession of the “power of the purse”, and as Senator Lindsey Graham said this past March, “historically, presidential budgets do not fare well with Congress”.23
Indeed, while presidents typically wield more power in foreign policy than in domestic matters, the most conspicuous constraint on a president’s ability to conduct national security remains Congress’ budgetary and statutory authorities. In peacetime, Congress often caps the size of an administration’s defence budget, limiting the resources available to a president.24 In wartime, Congress has the ability, rarely exercised, to defund a war by refusing to appropriate the necessary budget.
This is more pronounced in the legal realm, where Congress is constitutionally empowered to declare war and has the ability to place limits on the presidential use of military force. Starting with President Truman and the Korean War, presidents have largely circumvented congressional authorisation. 25 Nevertheless, Congress has with mixed results attempted to curb presidential authority to commit US forces to armed conflict, most significantly with the 1973 War Powers Resolution. This committed the president to promptly notify Congress upon the commencement of military action and required the White House to seek authorisation for the use of military force if the forces remained engaged for more than 60 days. Additionally, Congress on occasion has acted to curb presidential use of covert action programs, particularly when such programs are seen as egregious abuses of presidential power. Although a variety of factors favour the executive branch in matters of national security, presidential power remains contested, and congressional restraints, timetables, and committee hearings influence an administration’s calculations on the timing and advisability of using military force.
The machinery of government
Presidential power is also contested within the executive branch itself as a president’s power depends on his ability to drive the machinery of the executive. Effectiveness stems from the competence of the cabinet officials appointed, the balance and locus of power within an administration, and the willingness of the bureaucracy to follow the president’s lead. Cabinet members, whether working as a “team of rivals” or as a cohesive group, advise the president and transmit the expertise, institutional knowledge, and preferences of their respective agencies and departments to the White House.26 Moreover, they have the institutional ability and bandwidth to reach into the bureaucracy to provide direction and enforce compliance. This has become most visible in the National Security Council, which has grown from 10 members at its inception in 1947 to nearly 400 by the end of the Obama administration. This growth has increased the president’s power to conduct foreign policy, develop a budget, and assess interagency coordination. While all White Houses attempt to centralise and coordinate policymaking to some degree, to have effect there must be decentralised execution, and bureaucratic buy-in.27
It is common to hear new administrations complain that a hostile bureaucracy is passively fighting their agenda, but the challenge is often more structural than it is personal or political. Memorably titled “Bureaucracy Does Its Thing”, Robert Komer’s 1972 study on the Vietnam War was a larger statement about the institutional constraints of policy execution.28 Komer argued that policymakers in the White House were stymied as much by their failure to grasp organisational minutiae, as they were by bureaucratic inefficiencies, overlapping authorities, and resistance to change. As information tends to flow vertically in Washington, the executive is frequently filled with semi-autonomous entities that wage constant turf wars over budgets and authorities. These feuds, however, are not just over resources or strategy; they also concern policy objectives themselves. In theory, the White House deconflicts and adjudicates these institutional differences. But this depends upon the bureaucratic skill of an administration and a White House, and especially of a president.
Nowhere is the dynamic between a president and his executive branch more critical than when it comes to his role as commander-in-chief, in possession of an arsenal of nuclear and conventional weapons. Yet, this unimaginable power is predicated on whether the chain of command follows a presidential order that they deem excessive or unbalanced. According to Jack Goldsmith, an expert on national security law, the answer is they would: “The president’s view, and whatever orders stem from that view… carry the day.”29
But, as Richard Nixon’s presidency illustrates, the historical record on this is mixed. In multiple instances, and due to his erratic behaviour, subordinates checked Nixon’s direct commands, either by slow-rolling their response, or simply ignoring them. When Nixon ordered a retaliatory nuclear strike against North Korea for shooting down a Navy reconnaissance plane, his Defense Secretary Melvin Laird successfully obstructed the process. When Nixon wanted to bomb the Damascus airport where a hijacked TWA flight was sitting, Kissinger decided “to give the president the opportunity to have second thoughts” and slowed the movement of aircraft carriers heading towards Syria. And in the days before Nixon’s resignation the chairman of the Joint Chiefs of Staff told his subordinates that if they received orders from the White House to use force, they should first confirm them with him or the secretary of defense.30 There is no way of knowing what would happen in a similar situation in the future, but these acts of bureaucratic obstruction point to the ability of a government to contain and, in certain instances, overrule a president.
A final determinant on presidential power is the president himself. Michelle Obama, speaking at the Democratic National Convention in 2012, declared that “being president doesn’t change who you are, it reveals who you are”.31 While easily dismissed as campaign rhetoric, such a sentiment captures something about presidential leadership that is impossible to quantify, but that matters enormously. A president’s resilience, firmness, willingness to take measured risk, attention to detail, and ability to tolerate and encourage disagreement, all play an enormous, perhaps decisive, role in determining the success of a presidency. Such a list — temperament, character, and judgement in short hand — does not reveal what a president will do in a given situation. It does however suggest the manner in which the occupant of the Oval Office approaches their tenure.32
The Trump stress test
Donald Trump is subjecting the presidency to a stress test, challenging the outer boundaries of democratic governance. In his demands for personal loyalty oaths over constitutional obligations, his tarnishing of the integrity of independent government institutions and his attacks on free speech and the independent media, the president, in the words of his son-in-law, is attempting to “bend, and possibly break, the office to his will”.33 Trump is not the first populist to seize control of the White House, as Andrew Jackson’s tumultuous eight-year term demonstrated.34 Nor is he the first president to bring the government to the brink of a constitutional crisis. But due to policies that remain both opaque and uncertain in many critical areas, actions and speech that continue to transgress the normal bounds of American political discourse, and lingering questions over how much more disruptive his presidency could become, Trump has heightened concerns about the long-term effect he is having on the presidency and the American system of checks and balances.
As every occupant of the White House discovers, it is the domestic and foreign circumstances under which they assume office that shapes their presidency. No matter the “American carnage” that Trump described in his inauguration address, Trump’s presidency did not start out with an existential crisis on the scale of the American Civil War, the Great Depression, the bombing of Pearl Harbor, or even the global financial crisis.35 A true international crisis, and perhaps a domestic terrorist event, might change that dynamic, yet present conditions do not permit such an outright suppression of civil liberties, as Trump has sought in regards to libel laws and free speech.36
While there is much Trump can do to question American global leadership, the jury is out as to whether circumstances make it clear that he has a mandate to do so. In fact, American support for its alliance and defence commitments actually seems to be increasing.37 During the 2016 campaign, 89 per cent of the overall public thought that maintaining existing alliances was very or somewhat effective at achieving American foreign policy goals. Among self-identified Trump supporters, those numbers dipped to 84 per cent — hardly an embrace of his isolationist position.38 More telling was the Chicago Council of Global Affairs October 2017 poll results. Not only was support for the alliance system and defence commitments holding 10 months into the Trump era, but it actually seemed to be increasing, with more Americans convinced that alliances are very effective.39 As this data underscored, “the US public is not buying [Trump’s] argument”.40 While premature to conclude that such initial reactions are tantamount to a wholesale rejection of Trump’s transactional view of American foreign policy, it would be an error to read Trump’s election as a wholesale rejection of America’s commitments to allies and presence in places such as the Asia-Pacific region and Europe. While Trump has the ability to challenge long-held assumptions of America’s place in the world, such challenges have already faced bipartisan resistance from the public and Congress.
Trump’s future political standing will also determine the level of support he receives for his agenda. Based on polls, special congressional elections, command of the public narrative and ability to deliver legislative victories, the results are mixed. His favourability ratings are historically low for this early in a presidency. Indeed, he is the only president that a majority of Americans disapprove of this soon after his inauguration, and he has the lowest net approval ratings in the history of presidential polling.41 Further, the combination of the president’s unfavourability ratings, mixed state election results, and the fact that significantly more Republicans are retiring from congressional seats in 2018 than normal, make this year’s midterm elections a particularly challenging political environment for Republicans. These factors will play an outsized role in whether Trump finds himself with an even friendlier and more pliant, or hostile and more antagonistic Congress.42
The combination of President Trump’s unfavourability ratings, mixed state election results, and the fact that significantly more Republicans are retiring from congressional seats in 2018 than normal, make this year’s midterm elections a particularly challenging political environment for Republicans.
How Trump’s message resonates with Americans, however, is just as relevant to his political fortunes. Nowhere has Trump’s message been louder than on Twitter. Trump realised faster than anyone else that his direct and unfiltered access to a global audience on a moment’s notice had upended the rules of mass communication and he could communicate, provoke, and distract pretty much constantly. Less clear, however, is whether the bully pulpit’s new medium is powerful, or just noisy. Trump’s tweets, for example, seemed to indicate that transgender individuals would no longer be allowed to serve in America’s armed forces, yet Defense Department policy has not shifted. While such tweets command attention, it is far from clear whether they herald policy shifts or just reflect his immediate and unfiltered reactions to events.43
Politically, Trump’s fortunes will be judged not just by what he says, but what he is able to accomplish. Here the record is mixed. The multiple attempts to repeal and replace Obamacare, build a border wall, develop an infrastructure strategy, or even pass a budget undercut the White House’s claims of Trump’s stellar legislative accomplishments and boasts that he has signed more bills “than any president, ever”.44 In truth, Trump signed fewer bills into law in his first year than any recent president.45 But his administration has delivered on multiple promises as well, including passing tax reform, rolling back business and environmental regulations, pulling out of the Trans-Pacific Partnership, withdrawing from the Paris climate deal, degrading ISIS, and enacting tougher immigration enforcement among other measures. As long as Trump finds some success for his agenda and is able to deliver to his core supporters — either through executive actions or congressional support — his political standing will not sink below a floor. But, until he has the ability to attract new supporters, his agenda will continue to face stiff political headwinds. History illustrates that if his popularity and accomplishments do not improve, he will likely face a primary challenger in 2020.
The separation of powers
Many have asked what Trump’s constant attacks on democratic norms, constitutional restraints, and morality portend, and questioned whether this means the end of democracy and the beginning of American autocracy and tyranny.46 For that to happen, the presidency would have to gain decisive control over the other branches of government and an ability to effectively drive the bureaucracy under its command. For the time being, while the institutional constraints on power are absolutely being tested, they have not cracked. The judiciary has upheld its independence and status as a co-equal branch of government, both striking down a number of the president’s executive orders on constitutional grounds — such as his hurried implementation of a travel ban on numerous Muslim-majority nations — while upholding other measures it found constitutional.
In a Republican-controlled Congress, Republicans have had limited success in achieving their agenda. Congressional Republicans can only claim two major accomplishments for 2017 — the passage of tax reform legislation and the confirmation of the Supreme Court justice Neil Gorsuch. House and Senate Republicans have failed to repeal and replace Obamacare despite repeated attempts; and the Senate vote to increase sanctions on Russia for its interference in the US election and other offences passed 98-2 despite the threat of a presidential veto.
Of the few Republican senators who have publicly criticised the president, none have insisted on transparency and accountability on the president’s personal financial affairs or with regards to the Russia investigation, while all have advanced his agenda and voted with him in almost complete lockstep.
At the same time, however, congressional Republicans seem willing to bend to Trump’s will in exchange for presidential support for various legislative priorities. This is most significant in the ongoing investigations into allegations of obstruction of justice, collusion with Russians during the presidential campaign, and the multiple ethics violations and charges of personal profit brought against Trump and his family. In all of these, congressional Republicans have not been willing to risk an overly public break, or to too aggressively investigate a Republican president — and have regularly sought to weaken, delay, and discredit the ongoing investigations. Of the few Republican senators who have publicly criticised the president, none have insisted on transparency and accountability on the president’s personal financial affairs or with regards to the Russia investigation, while all have advanced his agenda and voted with him in almost complete lockstep.
Because of the federated nature of the American polity, state governments also have the ability to circumscribe the president’s power. Just as President Obama found that state governors could refuse federal funding for mandatory public healthcare under Obamacare, Trump has had similar challenges from states and cities opposed to his policies. On issues surrounding climate change, immigration and voter fraud, the administration has faced opposition. For example, because of the market power of California — the world’s sixth largest economy — the administration might find its ability to roll back federal regulations on greenhouse gas emissions neutralised. Pledging to run a “countermovement”, California’s governor has strategised with other like-minded state and national leaders on how to set state standards, part of which involves pressuring business to abide by state-set standards.47
It is important to note that beyond institutional constraints, it is norms of behaviour that establish the boundaries of American democracy. These are, in one former presidential speechwriter’s words, “the unenforced and unenforceable standards of civility and respect” that keep leaders’ baser instincts in check.48 Indeed, the founding fathers imagined that the presidency would be filled with individuals “pre-eminent for ability and virtue” as a defence against “men of factious tempers, of local prejudices, or of sinister designs” who would “by intrigue, by corruption, or by other means” betray the public trust.49 Indeed, they believed personal restraint, particularly among the nation’s leaders, to be necessary for self-government. Nowhere is this more true than with the president, who in addition to commanding a fearsome arsenal is able, with his rhetoric, to incite unrest or sooth societal grievances. Here, Trump has had a direct and coarsening effect on political discourse — evident in his stirring ethnic and racial prejudices, encouraging police brutality, labelling the press as “enemies of the people”, as well as politicising previously non-partisan institutions like the CIA and FBI. It is this constant violation of political norms that ultimately will most challenge the institutions designed to safeguard American liberties.
The actions that Trump takes, and the responses of law enforcement officers and members of Congress, might be the ultimate test of how resilient democratic institutions and norms are, and how much they have deteriorated.
Central to the current stress test is whether or not Trump has abused the powers of the presidency in order to protect his own personal interests. This question raises discrete and broader points. Narrowly, it asks whether, in the midst of multiple investigations over obstruction of justice and conspiring with a foreign power to affect the 2016 election, the president has the ability to fire or pardon whomever he chooses — including himself — regardless of motive or intent. Trump’s personal lawyer has already suggested that the “president cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case”.50 This broaches the larger, and more consequential, point of how the president is bound by and held accountable to the law. The actions that Trump takes, and the responses of law enforcement officers and members of Congress, might be the ultimate test of how resilient democratic institutions and norms are, and how much they have deteriorated.
The machinery of government
Within the executive branch, the president holds much greater sway, but his ability to force his preferences on the government are hardly uncontested. Cabinet secretaries “serve at the pleasure of the president”, but they are not without power and status in their own right. Here, Trump may have something of a ‘James Mattis Problem’ in that Defense Secretary Mattis is not only more popular with Congress than President Trump, but is known to fundamentally disagree with the president on a number of policy areas. President Andrew Johnson’s 1868 impeachment centred on his dismissal of Secretary of War Edwin Stanton. The political dynamics in the aftermath of the Civil War are wholly different than today. But while such a dismissal is not unimaginable, Mattis' personal integrity as well as his standing with Congress, would constrain the president. Moreover, Trump’s cabinet, while loyal, does disagree with him in private, and has done so publicly to an unprecedented degree for modern administrations.51
Effective execution of the president’s agenda requires a federal government ready, willing, and able to carry it out. This is particularly pronounced in the realm of foreign policy where complicated issues require multiple actors coordinating resources and deconflicting authorities. As Stephen Sestanovich has noted, “to work, they depend on the resources, technical expertise, coordinated implementation, and support of the national-security bureaucracy”.52
While premature to conclude that the president has won or lost the debate on America’s role in the world — including its purpose, coherence, and prospects — Trump, according to Sestanovich, “is certainly losing control of it” because of his inability, or unwillingness, to adequately staff the government.53 While the pace of nominations has picked up, both the number of nominations and Senate confirmations of presidential appointments lags significantly behind his predecessors.54 It took nearly a year to nominate and confirm the Pentagon and State’s top officials for Asia. Many critical subordinate positions remain vacant and as recently as February 2018 the White House had no ambassadors in Canberra or Seoul. In the conduct of foreign policy, the administration’s lack of experience combined with its marginalisation of the State Department and other organs of national security mean that it has less ability to effectively carry out any strategy.
Restraint and Donald Trump are not words that are often paired. And with good reason. As a long-time Trump friend explained, “Donald Trump has spent his entire life a free agent; he has always done things his way”.55 As head of a family-run business, Trump did not have to deal with shareholders or a board of directors that could hold him accountable for his decisions. Always playing offence and never apologising served Trump well as a real estate mogul and reality TV celebrity, allowing him to ignore criticism, put his opponents on their heels, and influence, if not control, the narrative.56 It was Trump’s temperament and character that spawned the birth of the ‘Never-Trump Republicans’ who, like Peter Wehner, concluded that “he is unlikely to be contained by norms and customs, or even by laws and the Constitution. For Mr. Trump, nothing is sacred. The truth is malleable, instrumental, subjective”.57 While inconsistency can be a virtue, as it allows policy to adapt to changing conditions and new facts, unmoored to principle and untethered to fact, it provides a poor basis for leadership.
Trump’s unpredictable foreign policy
Even though the broad contours of Trump’s opinions on a number of issues — from the value of free trade and alliances to his sympathies towards authoritarian strongmen — have remained fairly consistent, the White House’s communication of his policy has been deliberately erratic.
The challenge is deeper, however, than communication. From repeatedly questioning security commitments, to flip-flopping policy positions, to undermining the efforts of his administration, the president suffers from a “credibility gap”. This is compounded by Trump’s penchant for speaking falsely on a regular basis. As a result, both at home and abroad (and even with long-standing allies) large majorities find Trump untrustworthy.
While some see more continuity than change in Trump’s foreign policy, the majority of outside observers have found it challenging to understand the intent of White House policy on most key issues from NAFTA and NATO, to Asia and the Middle East. To some degree, there will always be uncertainty after a presidential election about how much policy will actually change. This uncertainty is heightened when there is a transition from one party to another. It is heightened further when the president who takes office continues to make statements which are outside the bounds of normal foreign policy discourse and procedurally opaque. Trump, to be sure, wants to be less predictable than his predecessors and international opponents, declaring “we must, as a nation, be more unpredictable”.
There are countervailing forces at work against Trump’s penchant for unpredictability. Secretary Mattis, Chief of Staff John Kelly, National Security Advisor H.R. McMaster, and Secretary of State Rex Tillerson collectively are referred to as “the adults in the room”, and have attempted to give structure, organisation, and coherence to the administration’s foreign policy. [^62] But the president’s unpredictability continues to undermine such efforts, as his pronouncements on issues ranging from trade, to North Korea, have repeatedly and explicitly undercut his cabinet secretaries. The result has made it nearly impossible to understand what is a tweet and what, ultimately, is policy.
As Trump knows, from a negotiating perspective, and certainly when dealing with competitors, unpredictability carries some advantages and, judiciously applied, can provide leverage. But elevating unpredictability to a strategy has downsides. It has confused allies, promoted instability in critical trade relationships, elevated the risks of miscommunication in a crisis, and left the world questioning the credibility of American commitments. The actions required to demonstrate resolve and to signal deterrence have likely increased, as have the chances of unintentional escalation.
Some of this will be offset by more trusted cabinet members and the might of the American military, but no matter how many times US alliances are reaffirmed by senior officials, presidential unpredictability raises fears that America will not live up to its security guarantees. As a major US ally in Asia commented, “Washington, DC is now the epicenter of instability in the world”.[^64] Perhaps the most damaging result is that the president no longer is seen as having the final word on foreign policy and national security and is often bypassed. “I’ll tell you, honestly, for a foreigner, in the past we were used to going to the White House to get our work done,” Shivshankar Menon, India’s former foreign secretary and national security adviser to the prime minister recently stated.[^65] “Now we go to the corporations, to Congress, to the Pentagon, wherever.”
History tells us that the unpredictable nature of circumstances and individual leaders means the shape and power of the presidency is always evolving. Regardless of the president, some elements of the presidency are likely to endure as permanent features, and some old debates are likely to resurface.
What will stay the same
Different moments change the shape of the presidency. The challenges of the first year differ from those of the second, and those of a first term from a second term. Richard Nixon, Jimmy Carter and Bill Clinton’s tenures all furnish examples of presidents turning to foreign policy when frustrated at home, and when they are in legacy-building mode. Certain moments during a president’s tenure — generally at the outset, after re-election or after profound shocks such as 9/11 — are more conducive than others to producing or re-evaluating strategy.
While Trump’s election clearly indicated profound dissatisfaction with the American political process, it has not transformed the requirements of effective governance from process to fiat. Guiding legislation through Congress, negotiating with foreign leaders, and building coalitions at home and abroad are tasks that require time and skill. Because policy is as much about process and personnel as it is about pronouncement, future presidents will continue to find governing different than campaigning.
Likewise, it is a safe bet to conclude that the next, or even the next several, administrations will define themselves in opposition to Trump’s presidency. George W. Bush came into office with an ABC (Anything But Clinton) mentality, while Barack Obama most concisely defined his relatively restrained foreign policy strategy, “Don’t Do Stupid Shit”, to juxtapose it against the perceived sins of George W. Bush’s. That is obviously more true if a Democrat is the next occupant of the White House, but will probably hold even if a Republican succeeds Trump.
Finally, some have suggested that in response to Trump, and perhaps during this administration, the locus of power could shift back to the legislative branch. History, however, suggests that the president will continue to occupy the “bully pulpit” that sits at the centre of American political discourse. Congress can resist the president, as it did during the Nixon and Ford administrations in the 1970s, and it often becomes the centre of action during political impasses, as it was during Clinton’s impeachment in 1998 or during the budget showdowns of the Obama era. But it cannot take over foreign policy. As a result, the global focus will remain on the words of the president, the White House and the national security apparatus more than it does Congress.
What might change
Throughout American history there have been periodic calls to reform the presidency. Those proposed reforms have taken on different shapes depending on both the circumstances and the occupant of the office, and have alternatively called for scaling up its reach, stripping back its powers, and making it more manageable. In the aftermath of Trump, several of these debates and recommendations are likely to resurface.
First, it is almost inevitable that Americans will debate how the presidential election is conducted and whether the process should change. This discussion will revolve around three questions: Is there a better nomination process within the major parties; is it time to shift away from the Electoral College and towards a popular vote; and is there a better way to safeguard American elections from foreign interference?
The prolonged campaign season combined with the pace of individual state primaries tends to push candidates to cater to their party’s most dedicated base. The charges against the current system are that the nomination process produces candidates less attractive to the broad centre of American politics, bloodied by partisan ideological fights and therefore vulnerable in a general election, and more focused on smaller states, such as Iowa or New Hampshire, whose primaries occur earliest in the calendar. Unless these states voluntarily abandon their early primary dates, or the political parties mandate a streamlined and tightened nominating process, such changes are unlikely.
A second complaint that will reappear is whether to abolish the Electoral College. Given that Trump lost the popular vote by nearly three million votes to Hillary Clinton, but still was elected president due to the mathematics of the Electoral College, this charge has particular resonance even if most of the voices advocating for its abolition are Democrats. Trump is not the first president to assume office having lost the popular vote; in fact, he’s the fifth. The prospects of eliminating the Electoral College and replacing it with a popular vote, however, are slim. Not only would it require the passage of a constitutional amendment; but it would also privilege urban population centres over low-density rural areas, which would be politically unpalatable to a large number of American politicians.
Trump is not the first president to assume office having lost the popular vote; in fact, he’s the fifth. The prospects of eliminating the Electoral College and replacing it with a popular vote, however, are slim.
One set of reforms which will be called for will be to streamline the focus and ease the burdens of the office. In his recent survey of the presidency, Jeremi Suri concluded that “by the start of the twenty-first century, the inhuman demands of the office made it impossible to succeed as president”. 66 Proliferating responsibilities, accumulating demands, accelerating news cycles, and busier work schedules have left presidents at a disadvantage. The hectic pace has translated into a daily grind that has often left presidents reacting to events with the immediate crowding out the important, bereft of time for strategic thinking, and ultimately less well equipped to handle the extraordinary demands of the job.
Apart from the toll the office exacts, its frenetic pace translates into a constantly distracted chief executive. Most notorious here is Jimmy Carter, whose perfectionism and zealous attention to detail led him to read hundreds of pages of detailed briefings each week, check the accuracy of the budget’s arithmetic, and even personally assess all requests to use the White House tennis courts.67 Although this is an extreme example which Carter eventually moved away from, it led his chief speechwriter, James Fallows, to conclude that “if [the president] is distracted from the big choices by the torrent of petty details, the big choices will not get made”.68
To help future presidents strike a balance, particularly in the aftermath of a presidency that is viewed as impulsive and in need of institutional “guardrails”, debates about the bureaucratic structure within the executive branch and constraints on presidential action will resurface. The bureaucracy’s focus will be on institutional reform, but the questions will be multiple, ranging from streamlining decisionmaking, to eliminating petty burdens on the president, to shifting certain responsibilities away from the executive.
In national security matters, the discussion will centre on how to ensure the presidency is more focused on decision-making, how to decentralise execution to executive agencies, and how to ensure that strategic decisions are thoroughly vetted.69 This is especially true on command-and-control of the armed forces, where Trump’s presidency has revived talk among academics, legal experts, military officers and senators about what checks are in place to constrain a reckless or illegal order.70 Debate has already commenced on restructuring the National Security Council, but after Trump’s presidency there will be renewed examination of whether other branches of government, executive branch agencies and the military should have more ability to constrain a president.
After Trump’s presidency there will be renewed examination of whether other branches of government, executive branch agencies, and the military should have more ability to constrain a president
Crucially, as Trump has disrupted many norms within the national security community there will be further scrutiny on the constitutional norms surrounding the president’s role as commander-in-chief. President George W. Bush’s speechwriter David Frum has recently pointed out that the military and intelligence services have developed methods to cope with Trump “that circumvent the president’s role as commander-in-chief”.71 From divulging highly classified information to the Russian foreign minister and ambassador, to telling Philippine President Rodrigo Duterte the location of two US nuclear submarines, Trump has caused the national security community to recalibrate what information it shares and how promptly it responds to the president. Even for those who applaud efforts to ‘cage’ Trump, and certainly for those who do not, these actions have the potential to slowly erode the president’s role in the chain of command, degrade civilian-military relations, and challenge the principle of civilian control over the armed forces.
At some point, the Trump presidency will end — whether that comes in 2025, 2021, or sooner — and the nation will move on. While it is far too early to conclude what the sum total of Trump’s effect on the presidency will amount to, several observations can be made. At present, the balance of power between the branches of government continues to hold, but could tip if the 2018 midterm elections — where a third of the Senate and the entire House of Representatives will face re-election — either bring more hardcore Trump supporters to Washington, or tip Congress to the Democrats. Trump, however, will probably not preside over a major or permanent reorganisation of the US government in a way similar to Andrew Jackson, Franklin Roosevelt, or Ronald Reagan. Like all previous presidents, but perhaps more so than most, Trump will continually meet bureaucratic friction — some endemic to bureaucracies, and some unique to his presidency.
But while the separation of powers has the potential to constrain Trump domestically, it is much less able to restrain him internationally. While all American presidents are both empowered and constrained by the office, what is different in the Trump administration is the seeming instability emanating from the White House. This turbulence has, and will, continue to subject the integrity of America’s political system and position in the world to a stress test.