Since the beginning of the presidency of Donald J. Trump, Americans have been undergoing a worrisome experiment in constitutional government.
The Founding Fathers designed the American Constitution precisely to deal with the possibility of someone like Donald Trump becoming President. They were deeply versed in the history of the Roman Republic and its fall, and were skeptical that democratic publics would always elect wise and qualified leaders. The complex system of checks and balances that constitute our system was designed to prevent Caesarism, that is, the excessive concentration of power in any one part of the government. Julius Caesar, we should remember, undermined the Republic precisely because he was popular and charismatic—the general who had conquered Gaul. The U.S. system of shared powers would guard against tyranny, even if it slowed down and reduced the chances of concerted action.
Donald Trump came into office having little sense of how the American system was supposed to work. He appears to have believed that he could run the U.S. government as he ran his own family business, that is, through a series of executive orders implemented by a small circle of trusted family advisers. Trump did not understand the primacy given to Congress by the Constitution, and the need to cultivate Congress if he was to get anything done. His understanding of the rule of law was limited to knowledge of how to use the law to promote his own interests, for example by forcing contractors to sue him if they were to receive the payment they were due. But the idea that the executive itself should be under the law was foreign to him. Hence his firing of the FBI’s James Comey for pursuing the investigation into his campaign’s ties with Russia, and his apparent belief that Attorney General Jeff Sessions should work to shield him from legal proceedings.
Like all of the new populist nationalists who have appeared around the world in recent years, Trump has sought to use his democratic legitimacy, such as it was, to discredit any institution that stood in the way of his personal power. This included the entire U.S. intelligence community (for not exonerating either Russia or himself of wrongdoing), the entire mainstream media (who he said were “enemies of the American people”), judges who stayed his immigration orders, and most recently members of his own Republican Party who had failed to implement his agenda. We sometimes speak of a “dictator’s handbook” that would-be authoritarian leaders follow. There is no handbook: individual leaders don’t start out wanting to be authoritarian; they simply want to accumulate personal power and be perceived as successful, and it comes naturally to them to attack those institutions that get in their way.
At this point, nine months into his presidency, the system of checks and balances appears to be working quite well: The courts continue resist the slapdash immigration orders drafted by the White House; the intelligence community’s views of Russia are largely accepted, even by the Republicans in Congress who have voted to constrain the President on this issue; and the “failing” mainstream media is doing better than ever by providing a counterweight to the Trump Administration. The big items on Trump’s agenda—repealing the Affordable Care Act, building a border wall, tax reform, and a huge infrastructure package—have not materialized due to Trump’s inability to bridge the deep divisions within the Republican majorities in both houses of Congress.
The biggest constraint on the Trump presidency has been, however, Trump’s own lack of experience and, frankly, psychological neediness. Institutional checks in a political system are not, after all, like physical barriers to action. They work only to the extent that the people who constitute the system agree to abide by them, and this in turn is a function of politics. Trump could have scored some big early successes if he were sufficiently popular. Had he started his presidency with a concerted effort to broaden his political base, for example by starting with a large infrastructure initiative, this might have happened. Ronald Reagan became a transformative President precisely because he was able to cut into the Democrats’ base, working with Democratic House leader Tip O’Neil to pass his tax cut agenda.
Instead, Trump did just the opposite. Rather than trying to win over some of those among the majority of Americans who did not vote for him, he retreated into strident rallies in red states which appealed only to the converted. The early months of his presidency saw him largely abandoning his populist agenda and embracing the Tea Party wing of his own party. Rather than starting with infrastructure, his first big legislative initiative was the repeal of Obamacare, something that threatened to take benefits away from those very working-class voters who were key supporters last November. As a result, his first-year popularity sank dramatically in the early months of his presidency to the lowest of any President in recent memory.
The reasons for this self-defeating behavior would appear to lie in the President’s own temperament and personality. Speaking to crowds of adoring supporters seems to fulfill a deep psychological need, even as it impedes his long-term agenda. If he is criticized, Trump’s first instinct is to punch back as hard as he can, regardless of whether this serves his long-term interests. The country was on the verge of forgetting about his ties to Russia when he fired James Comey last May; as a result, he saddled himself with a full-blown special prosecutor.
At the end of his first summer, Trump appears to have finally realized the dead end he was in. He has made a stunning pivot to cooperate with Democratic Party leaders Chuck Schumer and Nancy Pelosi on a short-term agreement to lift the debt ceiling, and on a possible bipartisan approach to congressional action on DACA (the Deferred Action for Childhood Arrivals policy, which would defer prosecution of children brought illegally to the United States). This bipartisanship threatened to break the logjam that crippled Obama’s ability to act after 2010, even as it has dismayed his conservative base.
It remains to be seen, however, how committed Trump is to such cooperation over the longer run, and how the Democrats will react. No sooner had he made this pivot that he returned to his old bad habits, attacking the NFL and undercutting his own Secretary of State. He has retreated from bipartisanship by loading any DACA legislation with conditions to satisfy his anti-immigrant base, like funding for the border wall. With so much behavior offensive to the Democrats under his belt, it is not clear he will be able to overcome the gulf of distrust he has created.
The effects of a longer-term Trumpian turn towards bipartisanship would have an important impact on the political system as a whole. I characterized the American system as a vetocracy, meaning, government by veto, where well-organized and richly endowed interest groups could block initiatives they didn’t like. I was happy enough that these veto points existed once Trump was elected and sought to implement his conservative agenda. But the spectacle of a country that cannot act even when a single party is in control of all the major branches of government is not a happy one. Persistent government paralysis is what breeds demands for a strongman leader, and played a major part in support for Trump himself as someone who could “drain the swamp.”
An example of this dysfunction is DACA itself. For the past two decades, a centrist coalition has existed that potentially would support comprehensive immigration reform. The basis of a compromise is straightforward: In return for stronger efforts to enforce existing immigration laws (with perhaps some tweaks to levels and qualifications for entry into the country), the 11 million undocumented aliens already in the country—and not just their children, as under DACA—would have to be given a path to citizenship. Such an outcome would be both just and realistic. But on both sides of this question, there are committed groups that cannot abide either “amnesty” or serious enforcement efforts like employer sanctions. As a result, the large mass of undocumented aliens remains in a limbo, fearful of deportation but aware that the country is unlikely to force all of them out.
DACA should have been the easiest part of this package to pass through Congress, since all but a few extremely hard-line anti-immigration advocates really want to eject children who did not come voluntarily and have grown up in the United States. But Congress has been unable to act on this due to vetocracy, and as a result President Obama sought to make DACA law through an executive order. The constitutionality of this move is highly questionable: prosecutorial discretion was never meant to apply to a class of people numbering in the many hundreds of thousands. If ever there was a question that should have been resolved by Congress, DACA was it; but Congress has been paralyzed on this and countless other issues. As in many Latin American presidential systems, deadlock in the legislature drove Obama to resort to unilateral executive action. So Trump was actually right both to support the substance of DACA while enjoining Congress to actually act on it.
The normal functioning of our check-and-balance system has been dependent on some degree of cooperation between the parties. It has seized up in recent years as the parties have become more polarized and ideological. There may be institutional remedies for this, like moving to an alternative vote or some other electoral system more friendly to third parties as Lee Drutman and Larry Diamond have been advocating. But in the absence of such large structural reforms, the only way to make the government work is to fashion a centrist coalition that cuts across party lines. If Donald Trump could accomplish this, he would lay the groundwork for an important presidency. Whether he is temperamentally capable of such a turn and savvy enough to see the opportunity in front of him is another question.