Drivers ed for presidents
They all learn quickly that they are not all powerful
Evidently having missed the topic during his college years, President Donald Trump has been getting a crash course on the nature of presidential power and the meaning of the Constitution’s separation of powers during the first five months of his presidency.
We frequently hear that the American president is the most powerful person in the world. There is a significant distinction, however, between being the most powerful person in the world and being the person holding the highest office in the most powerful country in the world. Mr. Trump is the latter.
Yes, over the course of the 20th century, the presidency became the first among equals among the three branches of our federal government without any significant constitutional amendment. The reason is two-fold.
First, the increased U.S. role in foreign affairs brought expanded opportunities for presidents to exercise their powers as chief diplomat and commander in chief.
Second, domestically, the increasingly national scope of our economy and the remarkable development of communications and transportation have made ours a less local and more national society. As the only elected official who could claim a national constituency, the president became the most important official in the federal government.
Nevertheless — just ask former presidents — the presidency is a much more limited office than we are often led to believe, and presidents’ attempts to escape those limitations are often what create their political and constitutional problems.
Contrary to the claim that the Constitution was adopted in order to limit the powers of the national government, our founders wrote it in order to increase those powers — with the important caveat that there would have to be a way to ensure that the national government did not abuse its increased powers. Foremost among those increased powers was the presidency and executive power itself, which did not exist under the prior Articles of Confederation.
Due to the separation of powers that our Constitution established, presidential power, in the famous words of historian Richard Neustadt almost 60 years ago, is not the power to command; it is the power to persuade. The reason is that, in dealing with Congress, the president has to work with people who do not owe him their jobs and are therefore not politically accountable to him.
The president and members of Congress are elected by different constituencies for different terms of office, and they are electorally accountable to those constituencies independently of each other. The federal judiciary, for its part, is not electorally accountable at all. This creates a system, in Neustadt’s words, of shared powers in separate institutions.
As James Madison wrote in Federalist 48, the separation of powers “does not require that the legislative, executive and judiciary departments should be wholly unconnected with each other.” Instead, he continued, “Unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.”
That is why there is a fundamental difference between running a business and running the government. One could argue that leadership always involves a persuasive element, but, generally speaking, a business organization has a hierarchical, top-down structure that allows for managers to say “You’re fired” to lower-level employees.
The president has no such power over members of Congress or the federal judiciary. Mr. Trump’s notable claim at the Republican National Convention last summer about the troubled state of our nation — “I alone can fix it” — betrays a failure to grasp this central feature of American government.
A helpful way to understand the blended character of our three-headed government is to recall the special nature of a drivers-education car. Imagine the driver, the instructor in the front passenger seat and a person or two in the back seat. The driver controls the steering wheel, the accelerator and the brake. But the instructor has a brake, as well. Then there are the back-seat drivers, who pipe up with their demands.
Understanding presidential power, therefore, requires that we recognize that while the president exercises the bulk of executive power in that he controls the steering wheel and the accelerator, both Congress and the judicial branch have a brake. The president cannot drive very far unless the other branches release their brakes, just as, more generally, any two branches have brakes on the third.
Beyond their obligations to their constituents, members of Congress have obligations to the Constitution, to their office and chamber — the House or the Senate — and to their political party. The only way the brakes will continue to work is if members of each chamber will rank loyalty to the Constitution and their own chamber over loyalty to their political party.
Otherwise, the car may crash.