Waiting for Caesar and imperial action
Ross Douthat says when presidents and members of Congress fail to communicate, the executive branch tries government by fiat, and fails.
In the eight years of the Obama presidency, there were three cycles of policymaking. First came the attempt to pass an ambitious liberal agenda through a Democratic-controlled Congress, which ended with the Republican House takeover in 2010. Then came the attempt to strike bargains, grand and otherwise, with John Boehner and congressional Republicans, which petered out early in Barack Obama’s second term. And finally came the imperial phase, in which activists appealed to the president to claim powers that he had previously abjured, and override or sidestep congressional gridlock on immigration, climate policy and health care through the power of the presidential pen.
Under Donald Trump the imperial phase might arrive much sooner. The possibility for further ambitious conservative legislation seems to have died away already; it’s hard to imagine Trump successfully making deals with Democrats if his party loses the House in November, and so two years may stretch ahead of us in which literally nothing passes Congress except the necessary budget deals.
In the last few weeks we’ve had a preview of how pro-Trump voices will fill that vacuum — with appeals that mirror the appeals of liberal activists in the late Obama years. Dear Mr. President, don’t you realize that you have the power to do [thing that most people assume the president doesn’t have the power to do]? Dear Mr. President, fortune favors the bold. Dear Mr. President, just act.
For instance, two weeks ago Michael Anton, erstwhile national security staffer and “Flight 93 Election” essayist, took to the Washington Post with the claim that birthright citizenship isn’t required by the 14th Amendment — and that therefore the president himself, through his constitutional powers, can end jus solivia executive fiat.
Meanwhile, cheered on by supply-siders, Trump is considering using a power that previous Republican administrations felt the president did not possess to cut investment taxes sharply by indexing capital gains calculation to inflation.
I wrote a lot, sometimes shrilly, about liberal Caesarism in the late Obama years, and the ideas being urged on Trump would represent the right-wing version of that tendency. For observers in the market for authoritarian scenarios, they also point to the surest path to a real constitutional crisis in our staggering republic: an aggressive president who first claims new powers to fill the void where Congress used to work, and then defies the other branches, the courts especially, when they attempt to check his ambitions.
These kind of collisions are common in other presidential systems, especially Latin American governments that imitated our constitutional arrangements. And the drift of American institutions lately — the celebrity status of the presidency and the increasing powers claimed by presidents of both parties, the abdication and ineffectiveness of Congress, the tendency for policy disputes to be negotiated between the White House and the Supreme Court — is arguably creating some preconditions for a Latin American-style breakdown.
But at the same time, the legacy of Obama’s foray into Caesarism offers some reasons to think that our system will limp along without a crisis for a while. That’s because one of the essential preconditions for such a crisis would be a feeling, in an ambitious White House, that going the full Caesar on some disputed issue would make them dramatically more popular. And in our environment of stark polarization, equally balanced parties and presidents who struggle to keep their approval ratings above water once the policymaking starts, it’s hard to chart a course from constitutional aggression to clear political success.
Certainly that was the case with the Obama White House. It wasn’t just that Obama’s more imperial forays on immigration were quickly tied up in the courts. It was that the imperial Obama was a politically unsuccessful Obama, whose party lost the Senate and then the White House during its imperial phase — ushering in a Republican presidency that set about unilaterally reversing much of its predecessor’s unilateralism, from DACA to the Paris and Iran deals.
In the same way but more so given his worse-than-Obama poll numbers, it’s very hard to see how the imperial forays being urged on Trump by immigration restrictionists or supply-siders would make him more popular, or less likely to suffer a repudiation at the polls. (Maybe the capital gains cut would juice the economy enough to compensate for the awful optics of yet another tax cut weighted to the rich ... but those of us who aren’t sworn to the supplyside catechism should be doubtful.)
By contrast, in countries where an imperial presidency transitions to an authoritarian one, the transition often happens precisely because the imperial president has strong popular support. The original Caesar was dangerous because he was beloved, and a country like Venezuela is where it is today because Hugo Chávez was able to win thumping-big electoral victories throughout his constitutional aggressions, on a scale that no recent U.S. president has been able to achieve or sustain.
So long as that kind of popularity eludes our chief executives, their unilateralism is more likely to be a driver of dysfunction — encouraging wild swings from presidency to presidency, impeding policy certainty and follow-through — than a greased slope to presidential tyranny.
For that to change you would need a different correlation of forces than our polarized landscape currently produces — with a significantly more popular president pushing against a clearly unpopular Supreme Court or Congress, under conditions (a terror campaign, an economic crash) where the stakes in the big policy debates seem more immediate and dire.
That’s hardly unimaginable, but it isn’t likely to happen under Trump. An imperial presidency that alternately aggresses on behalf of liberal and conservative interest groups will continue to erode constraints on presidential power. But for the Republic to take the next step into outright crisis probably requires something else — not just a demagogue stamped by partisanship and polarization, but a Caesar who promises to be the leader who transcends them.