‘The accumulation of all powers legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” James Madison wrote in Federalist No. 48. Montesquieu, quoted therein, warned that “when the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.”
Madison and Montesquieu are perhaps not much remembered today. Separation of powers, once celebrated as a hallmark of the American experiment, is decidedly out of fashion. Our system delegates lawmaking to Congress, implementation to the executive, and the resolution of disputes to the courts, but there is a clamor to have it otherwise — everyone wants his preferred policies enacted and no one really trusts Congress with the job, so what does it matter if our constitutional order goes out the window in the service of a creative solution?
Barack Obama’s presidency did not begin this phenomenon, but it serves as a useful example. Put aside even cases such as DACA, in which the president took it upon himself to pass large portions of the DREAM Act by executive order rather than through the cumbersome business of lawmaking. Put aside the Obamacare subsidies that Congress refused to appropriate and the administration “appropriated” in return.
Put aside those particularly egregious cases, and just consider the signature policy achievements of Congress during Obama’s tenure.
There is, first of all, Obamacare itself, proposed and substantially negotiated by Obama, drafted and conceived in large part by his aides. Then there is Dodd-Frank, which at least is not named after the president, but it so closely followed the administration’s will that Obama said it “represents 90 percent of what I proposed when I took up this fight.” Then there was the compromise that extended the Bush tax cuts in 2010, which followed almost precisely a framework agreement negotiated by Obama and Republican leadership. And there were the jobs bills Obama advertised in a speech to a joint session of Congress, declaring repeatedly that lawmakers should “pass this bill,” even though no congressional committee had formulated any such “bill” at the time.
These were not isolated incidents, either. Remarkably, almost the entire legislative agenda of the Democratic Congress that governed between January 2009 and January 2011 was set by the president and implemented in close coordination with his administration — as if America were a parliamentary democracy and not a presidential republic. Such has been the expansion of the executive’s power at the expense of the legislative’s in the last few decades that this was seen as only natural. Think of how often Obamacare has been described as “Obama’s signature legislation,” or consider a few quotes from a more or less randomly chosen reflection on the president at Politico: on financial regulation, “Obama went on to push comprehensive Wall Street reforms through Congress”; on the stimulus, “he needed three GOP senators to avoid a filibuster, so he caved to their demands”; on jobs, “the same problem [of lacking the votes in Congress] stalled his American Jobs Act.”
Obamacare and the American Jobs Act, of course, can’t be “Obama’s” legislation, because the president doesn’t legislate; likewise, it should be strange to talk of Obama’s modifying a bill to accede to Republican demands, or of his pushing a bill through Congress. But none of these sentences sounds at all strange to us: That’s just what presidents do nowadays. They push bills through Congress; they negotiate with political opponents to craft a successful law; they even take public “ownership” of the legislation “they” pass. That is the vocabulary of the present era.
Perhaps this explains why there has been so much confusion about Trump’s relationship with Congress. Trump, unlike Obama, is neither conversant in legislative policy nor particularly interested in it nor even all that interested in marketing his own agenda to Congress. And so signature pieces of legislation, such as the AHCA or, presumably, the forthcoming tax-reform proposal, have been conceived of and managed by the House and the Senate, with only intermittent coordination with the executive branch.
In response, critics have seemed confused. Take Glenn Thrush, who tweeted that “for all the bombast, Trump presidency defined by historic ceding of power to Congress. Ryan set the agenda. Mitch is filling in the details.” This, of course, is incoherent. You can’t cede power you don’t have, and Trump does not, as a matter of the Constitution, have the power to set the legislative agenda. Then there are those who simply cannot process the fact that legislation nowadays comes from Congress. Into this camp we may place anyone who insists on referring to the AHCA as “Trumpcare” despite Trump’s manifest lack of interest in its details or, most likely, in the repeal of Obamacare at all. “Ryancare” is far more apt, but less popular, since policymaking is now thought of as a presidential preserve.
The power to enforce the laws carries with it a great enough potential for abuse; it is downright dangerous to gift the president the power to write the laws as well.
If the point of politics is to get your preferred policy implemented, consequences be damned, and your party controls the White House, it is useful to have the president’s allies in Congress act primarily as a voting bloc for his proposals. The president commands an immense amount of authority and prestige — far more, generally, than congressional leaders — and so will have an easier time unifying the party and mobilizing the electorate. Moreover, he is concerned about his legacy and insulated from many of the petty congressional preoccupations that have always bothered Americans — the frequent pace of elections, the need to forge long-term relationships, the pet projects, the local constituents — so his proposals tend to be more ambitious and more inspiring. This is why liberals were so unperturbed by Obama’s involvement in the legislative process, and it is why many conservatives have been frustrated by Trump’s failure to help guide Republican lawmaking.
But think of Madison and Montesquieu. Though their concerns may seem idealistic now, in our age of partisan warfare, it’s worth remembering that the Constitution already disposes to the president a tremendous amount of power. The power to enforce the laws carries with it a great enough potential for abuse; it is downright dangerous to gift the president the power to write the laws as well.
It is true that most of the safeguards in the Constitution are still operative. The president must still secure the requisite votes in Congress for his legislation to pass, for instance, and Congress still retains the power to impeach him. But the separation of powers, properly construed, is more than simply procedural: Its basis, as Madison famously argued, is in the way that each branch of government is drawn by pride and ambition to limit the other branches of government.
This has worked well for much of American history — think of the aforementioned War Powers Resolution or of Henry Cabot Lodge’s struggle with Wilson over the League of Nations or of the formation of the Whig Party in opposition to the executive aggrandizements of Andrew Jackson. But it is inconsistent with a state of affairs where partisans in Congress see themselves as subordinate to a friendly White House. Whenever the president effectively writes a piece of legislation and Congress dutifully passes it, the natural competition between the two branches erodes slightly and they began to view each other more as allies than as distinct political units working in tension with each other. It is a worrisome commentary on the condition of American politics that many pundits have begun to ignore this tension completely and view, say, House Republicans as the policymaking wing of the Trump administration.
This is not to say, of course, that there is no room for coordination between the OMB and the Senate over tax reform, or that Trump’s lack of interest in mastering the details of health-care reform is healthy. The president will naturally be involved in policymaking to some degree, the executive branch can offer useful guidance to lawmakers, and parties must coordinate their actions internally. But it is no tragedy that the path to health-care reform so far has been navigated by Paul Ryan and Mitch McConnell rather than by Trump.
It’s just the proper way of things.