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The executive branch is making a lot of people nervous lately. On April 13, President Trump ordered missile strikes in Syria without congressional authorization. He’s reputedly looking into the finances of the US Postal Service because of its deal with Amazon, a company Trump has attacked on Twitter a bunch of times. A few weeks ago, he dismissed FBI Deputy Director Andrew McCabe. Rumors are circulating that Deputy Attorney General Rod Rosenstein will be fired soon (or perhaps special counsel Robert Mueller himself). Rex Tillerson was dismissed as secretary of state last month, and possibly notified of it by Twitter (or worse). There have probably been a few scandals while I was writing this.
Among some analysts, it’s been a popular move to suggest that Trump fits into a group of world leaders who have recently risen to power on promises to curb the power of elites and their pesky institutions. The impact of these populist leaders in Eastern European democracies has included the curbing of press freedom and formal constitutional changes that strip courts of their powers. In Western Europe, right-wing populist movements have stoked nationalist sentiment in order to undermine institutions; the unexpected Brexit vote in 2016 is an example of this.
Despite this context and the apparent strongman tactics in the White House, the brewing crisis in the US is one of legitimacy rather than power. This isn’t to say that Trump hasn’t used presidential power in highly unorthodox and problematic ways — the language that comes out of the White House reflects a profound lack of understanding of constitutional government. It’s pretty standard for presidents to be more responsive to their supporters and to the needs of politically pivotal groups (see, for example, The Particularistic President, which illustrates this phenomenon looking at a wide range of data). But Trump has been more transparent about these aims, with actions and language that suggest he means to punish political opponents.
Speaking of transparency, the executive branch has taken some steps to limit public access to records and information. It’s sometimes lost in the “cover-up was worse than the crime” narrative, but when the House Judiciary Committee brought up articles of impeachment for Richard Nixon, one of them focused heavily on his use of state power to track and punish his political opponents. The heart of abuse of power isn’t that the president has expanded the power of the executive branch; it’s that he’s used his position atop the branch that carries out laws for reasons that are unacceptable in a liberal democracy.
When we look at presidential history, though, we see many broad and dramatic expansions of executive power. Barack Obama’s actions in Libya were widely criticized as unconstitutional, as were some of his unilateral actions on other policy issues. George W. Bush and his staff invoked an entire theory of presidential power to justify their actions in the war on terror. The way Harry Truman entered the Korean War expanded presidential war powers, a trend continued by nearly all of his successors in some way.
Numerous presidents — ones who frequently top the rankings — broke into areas of domestic policy where presidents hadn’t gone before. Andrew Jackson’s use of the veto as a policy instrument, Theodore Roosevelt’s involvement in mediating the 1902 coal strike, Woodrow Wilson’s hands-on approach to legislation, and basically FDR’s entire domestic presidency were all examples of expanding presidential authority on the grounds that it was necessary to ensure the health of the country in some way. And all drew criticism for those expansions and for their policy positions.
But in the long run, presidents are often rewarded for these kinds of institutional boundary violations. In other words, presidential power expands in ways that are often useful but unchecked to varying degrees.
Trump hasn’t offered a new constitutional doctrine or argued for stretching the “take care” clause. He has used regulatory power to alter policy, including trying to kill the Affordable Care Act and severely curtail environmental protections.
Making policy — especially consequential and controversial policy — out of the executive branch is not ideal, nor is it new. The idea that the president could be a more responsive than the constitutional system, with its veto points and its parochial Congress, is what informed the whole idea of the progressive presidency.
Under different conditions, too much policymaking in the executive branch alongside a gridlocked Congress might be cause for a reckoning over the lawmaking process. Most analysts agree that congressional paralysis and dysfunction is behind some of the executive expansion. But it’s not necessarily a crisis, at least not one of the same magnitude that’s happening elsewhere.
Trump has not changed the content of the Constitution. Some have identified his behavior as a lack of institutional forbearance, or restraint, in the use of all available capacities. But what’s at the heart of the brewing crisis is legitimacy: the reasons behind the use of executive power. In other words, the crisis lies less in the specific actions than in the fact that they seem to be driven by nepotism, personal loyalty, and sometimes ethnonationalism.
These are all principles that most Americans don’t associate with democracy, to say the least. Despite Trump’s nationalist rhetoric, some of his most controversial actions have been justified not in terms of saving the nation, but in terms of avoiding accountability in the administration.
This kind of legitimacy issue is not entirely new. When presidents have pushed at the boundaries of their accepted authority, they’ve needed to draw on core concepts, like electoral mandates, to reframe what they’re doing. And the Nixon parallels that we keep hearing about have a strong legitimacy component. Abuse of power is partly about what’s being done, but a great deal of it is about the reasons — self-serving and anti-democratic — behind the actions.
The situation the country finds itself in now inverts the usual question of presidential power: Do the ends justify the means? Can presidential action that pushes against. or past, accepted boundaries be justified if it addresses a pressing problem? Who gets to decide?
Trump is something different. Presidents have plenty of means to achieve what they want. Trump’s predecessors have ensured that. But there are two distinct debates happening about whether the ends justify the means with Trump.
One is among Republicans, and it’s been going on for some time. A few elite Republicans were early adopters of the Trump message, though not very many. A few have consistently been critical of at least some aspects of the administration, particularly where fundamental rule of law issues are concerned. And the question for those Republicans remains as to whether Trump’s nonstandard approach to tweeting, accountability, etc. is worth hanging on to some form of party unity.
For Democrats, many of the ends were never desirable. But that’s how it goes in a democracy — what you agree on is the process, or at least the acceptable boundaries. This has obviously broken down under Trump, but not in a way that is strictly about tweets or administrative procedure violations. There are questions about the election, of course. At a deeper level, there are ideas that animated Trump’s candidacy — about the role and status of immigrants, about “law and order” politics — that would never have been seen by some Americans as legitimate. The most impeccable process would not have changed that.
What does this all mean for the current moment, particularly for Trump’s recent decision to order airstrikes in Syria? Scholars of presidential power are skeptical of the legality of the action, and the justification seems to be an even bigger problem. Presidents have been forgiven for a lot of unilateral action in the name of national security — which isn’t part of the story here — as well as humanitarian intervention. Importantly, public patience is still often limited when these missions drag on. But Trump’s actions alarmed observers, even those who were inclined to support military action in Syria, because of their lack of clear doctrine and justification.
It would be an exaggeration to say that Trump’s use of presidential power has been entirely standard. It has not. But it’s also not responsible for a new doctrine of executive action or new spheres of presidential involvement. Trump’s predecessors, Republican and Democratic alike, have created an office with expansive power, leaving the door open for someone like Trump, who is untethered by ideology or deep affiliations with a party or faction, to make governing decisions without clear justifications for the electorate to weigh in on.
A crisis of legitimacy means there are real questions about whether governance is possible. In this case, it’s substantially but not entirely about the person in the White House. There are also questions about policy differences, identity-based conflicts, and negative partisanship. Having a president who treats governance and accountability recklessly may be a symptom of these issues, but it’s also an obstacle to addressing them.
