“In what ways can we further immunize our governing institutions from the political malaise of today and tomorrow?”
The framers of our constitutional system were under no illusions about the reality of our imperfect human nature. As a matter of justice and in the interest of ensuring human flourishing, humans were entitled to self-government, but that first principle had to be coupled with caution in light of our susceptibility to passion and our penchant for self-interested acting. Given the inescapable reality of human imperfection, all members of the constitutional republic—governors and governed alike—had to be constrained in various ways. Yuval Levin puts it best in a recent piece for National Review: “Our system does not trust leaders, but it also does not trust the public. It looks to each to restrain and direct the other.”
Granted, the framers themselves dismissed the notion that they harbored too low an opinion of mankind. As James Madison wrote in Federalist No. 55, “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.” The democratic republicanism of our constitutional system couples “esteem and confidence” in human nature with a healthy dose of “circumspection and distrust,” as manifested in constitutional constraining mechanisms like checks and balances and the dispersal of powers across different levels and branches of government.
One might wonder at times, as I admittedly have, whether those various constraints, checks and balances—those guardrails that protect against the most depraved aspects of our humanity from carrying the day—create a sort of permission structure for the debased politics of today. That is, if the constitutional system is immunized from the would-be destructive effects of inane and destructive politics, does it open the door to such politics? If the Madisonian system softens the immediate blows to the health and well-being of our polity from our various political maladies like pandering to the base, lying, and refusing compromise, does it in some sense help give rise to such practices and sustain them? Is the genius of American constitutionalism—the capacity of our system to allow for self-government without the worst aspects of the human self ruling the roost—part of the problem?
These are fair questions, but they evince a profound lack of gratitude for our constitutional system. Even if this line of inquiry is correct as a descriptive matter—that the Madisonian constitutional order is partially to blame for the destructive and pervasive bad-faith politicking of today—the normative upshot is rather unclear. What are we to do? Open the flood gates? Remove the institutional restraints, empower the office holders and majorities of the moment, and place undue faith in the reason and virtue of those in the driver’s seat? Doing so would raise the stakes of politics; it would make the immediate negative effects of poor political behavior known. Whether our political behavior would improve in the face of those raised stakes is an open question, but it is not one that I am especially eager to test.
For Bauer and Goldsmith, the Trump presidency served as a wake-up call.
Going forward, then, perhaps we need not question the founders’ wisdom so much as apply it a bit more to some of the most pressing political challenges of today: In what ways can we further immunize our governing institutions from the political malaise of today and tomorrow?
This is the question that permeates the work of Bob Bauer and Jack Goldsmith in their recent book After Trump: Reconstructing the Presidency. The thrust of their argument is that the Trump presidency laid bare a number of worrisome structural flaws within the executive branch, many of which can be corrected to some degree via Congressional action on the legislative front and with updated or revised internal, executive branch regulations. For Bauer and Goldsmith, the Trump presidency served as a wake-up call. Their proposed reforms seek to thwart the most destructive impacts of a future, more competent version of President Donald Trump—a president who holds norms in contempt just as President Trump did but who also proves far more adept at actually wielding power in the service of destroying such norms and legal restraints on his or her power. They note that “the argument for reform of the presidency does not rest primarily on Trump’s defiance of the law. Trump’s law-breaking bark—though undoubtedly corrosive, as we explain below—has often been worse than his bite.” The case for reform rests less on President Trump’s concrete actions and more on his destructive tendencies and understanding of the office—which, together, exposed “gaps and ambiguities in the law and norms governing the office, and broader weaknesses in presidential authority.” The goal of the reforms advanced in After Trump is to immunize our constitutional order and the office of the presidency from a future presidential menace without unduly (or unconstitutionally) hampering the rightful powers and of the presidency and necessary “energy in the Executive.”
Bauer is a New York University Law professor who served as President Barack Obama’s White House Counsel and as a legal advisor to President-elect Joe Biden 2020 presidential campaign. Goldsmith is a Harvard Law professor who headed the Justice Department’s Office of Legal Counsel during President George W. Bush administration. In light of their scholarly credentials and executive branch legal experience, Bauer and Goldsmith are well positioned to offer “more than fifty concrete changes to the laws, regulations, and norms that govern the presidency in what is the first attempt to think comprehensively about the proper shape of the post-Trump executive branch.” In the midst of these concrete changes, a very important theme emerges: the mutually reinforcing relationship between laws and norms. While norms are often preferable to laws given their enhanced flexibility, Bauer and Goldsmith often frame proposed legal changes as means to re-establish and strengthen eroded norms. For example, they propose statutory reform to the Inspector General Act to empower inspectors general to review agencies that could be leveraged by the president to harass journalists (like the IRS, FCC, and others). The goal here is “to enhance and reinforce the fundamental norm that the federal government may not devote its investigatory and related resources to undermining the fundamental role of the press in our democracy.” Rather than simply hoping that pre-Trump norms will soon flower, Bauer and Goldsmith advance legal proposals that, over time, will serve to inculcate these norms once more. As they conclude towards the book’s close, “reform of the law can reinvigorate norms…Affirmative reform, by statute or executive branch regulation, is needed to reset and extend these norms.”
While Bauer and Goldsmith are focused on executive branch reform, it is clear that the Congress has an essential role to play here. Internal, executive branch regulatory reforms—such as transforming a variety of pre-Trump Justice Department norms into explicit internal regulations—do comprise a crucial component of After Trump. Indeed, Bauer and Goldsmith are adamant that President Trump’s successor will have to be committed to abiding by pre-Trump norms and advancing structural reforms that strengthen them. That said, the president alone can only do so much. For statutory reform, Congress will have to step up.
There are two reasons to worry that Congress is not up to the task.
First, Congress’s past attempts at reining in certain executive branch powers and tendencies have proven ineffective at best or counterproductive at worst. Indeed the failures of the 1973 War Powers Resolution and the 1998 Federal Vacancies Reform Act helped give rise to Bauer and Goldsmith’s war powers and vacancies reform proposals. They note that the War Powers Resolution has proven a “failure” in reining in the undue enlargement of Article II’s war-initiating authority at the expense of Article I’s. Meanwhile, the Congress’s vacancies reform efforts have failed to rein in presidents’ penchant for stocking key executive branch slots with non-Senate confirmed candidates. This was apparent even prior to President Trump’s unprecedented use of “acting” officials.
At the end of the day, members of Congress are driven primarily by their desire for re-election.
Second, if Congress is substantively to reassert itself in such issue areas—not to mention reining in presidential “emergency powers” and other forms of excessive delegation that Bauer and Goldsmith highlight—it will have to recover some semblance of institutional pride. The prospects for this are rather dim. The cross current of partisan polarization and contempt has grown so strong that a huge swath of Congress seems unwilling to hold the President to account even after he ginned up and sicced a violent mob on them as they carried out their Constitutional duty to certify the Electoral College returns on January 6th.
Ultimately, as Ben Peterson pointed out in a sharp piece for National Affairs in 2019, “Strengthening Congress cannot begin with Congress…but must start with the voting public.” At the end of the day, members of Congress are driven primarily by their desire for re-election. They will only begin to reassert the institutional interests of the Congress if voters attach costs to their failing to do so. This will take years. In the meantime, President-elect Biden must hold the line until the American people begin calling on their congressional representatives to do their part. Given President-elect Biden’s commitment to reinstituting pre-Trump norms, hopefully he will vigorously advance the internal executive branch reforms proposed by Bauer and Goldsmith.
As essential as President-elect Biden’s upholding of norms and his support for structural reform may be, his and others’ good will can only save us from ourselves for so long. Ultimately, the immunizing capacity of our institutions and their leaders is limited. No matter how well our Constitution, statutes, and regulations protect us from our worst tendencies, that protection can only persist for so long if the public lacks the capacity for responsible self-governance. After Trump and the reforms it proposes are essential tools for carrying out the work of holding the line amidst these awfully troubled times; however, in the end, the American people must quickly rediscover their capacity for self-government—and the attendant virtues of mutual respect, dialogue, reason, and compromise—if our constitutional order is to stay afloat.
Thomas Koenig is a recent graduate of Princeton University and will be attending Harvard Law School in the fall of 2021. He can be found on Twitter @TomsTakes98
