Despite being an (admittedly dyspeptic) opponent of Donald Trump’s 2016 nomination, and a regular critic of his administration, I must acknowledge that the president has often endeavored to restore balance to our constitutional order. His court appointments have been outstanding, and his administration made the most of the Congressional Review Act, using that oft-overlooked law to undo many of the more burdensome regulations of his predecessor. And now comes another achievement, the repeal of the Deferred Action for Childhood Arrivals (DACA) program, created by Barack Obama in 2012.
Yet the events surrounding DACA illustrate why our constitutional system has come under so much threat of late. And I fear that this victory will prove fleeting.
DACA is not just unconstitutional, but profoundly so. The Supreme Court has long had an anti-republican habit of masking political power grabs under the specious verbiage of constitutional hermeneutics — reading novel rights or obligations into vague clauses in our governing charter that the Court, and it alone, has the authority to “discover.” DACA is not like this. It is a manifest violation of the separation of powers, a central feature of our system of government.
Worse, the Obama administration’s public defense of DACA was deeply pernicious to the constitutional order. “Congress won’t act, so the president must,” we were told again and again. Yet Congress often fails to act, by design. By inviting a diversity of interests into Congress, the Constitution makes it more difficult for one faction to legislate on behalf of itself. Instead, interests will counteract each other, producing either gridlock or policy that is widely acceptable. Congressional gridlock is therefore a feature, not a bug of our system — making Obama’s argument for DACA dangerous indeed.
So, three cheers for Trump, for correcting Obama’s overreach. But there has been a deeply troubling subplot to this story: Congressional leaders, on both sides, did not want the president to do away with DACA.
Democrats, obviously, have a partisan incentive to oppose the president at nearly every opportunity — which is why they regularly complain that he is a would-be tyrant — but still managed to gripe about his returning power to Congress. Minority parties often sacrifice intellectual consistency in their quest to regain power, so this was not particularly worrisome. More problematic was the opposition from Republican leaders in Congress — who have a partisan incentive to support the president’s move and, at least in theory, an institutional interest in reacquiring power that had been illegally seized. Yet they did not want Trump to unwind DACA.
In fact, the biggest proponent of Trump’s decision was Attorney General Jeff Sessions, who, if anything, has an institutional incentive in preserving DACA and therefore in retaining the expansive powers it confers on his department.
All this must come as a surprise if one takes The Federalist Papers as a guide to how our government should function. Each branch is expected to be a jealous guardian of its own power. That is why the Founders not only separated the branches but gave them leverage over one another. “Ambition must be made to counteract ambition,” Publius famously argued in Federalist 51. “The interest of the man must be connected with the constitutional rights of the place.” The Founders were so worried about legislative encroachments on the other branches that they split Congress into two chambers.
Congressional hesitation to unwind DACA is part of a larger pattern that has persisted for the last 80 years: The legislature has consistently delegated authority to the executive branch.
And yet, here we have the legislative branch desperate not to reacquire power that was illegally snatched from it. What explains this?
The Founders were not starry-eyed dreamers when it came to the prominence of civic virtue, or even to the basic decency of politicians. Heavily influenced by the Scottish Enlightenment, especially the moral philosophy of David Hume, many of them expected politicians to behave only in their self-interests, narrowly understood. Hence the need for checks and balances, as an auxiliary precaution for republican government.
The predominant self-interest of members of Congress is reelection. It is the necessary condition for a career in politics. When you get into office, your primary goal is to stay in office. It follows, then, that congressional leadership did not want this power returned to it because it would do nothing to advance its members’ reelection goals — which is another way of saying that their voters do not care about the proper scope of congressional authority, or about congressional defense of incursions by the other branches.
Viewed from this angle, congressional hesitation to unwind DACA becomes part of a larger pattern that has persisted for the last 80 years: The legislature has consistently delegated authority to the executive branch. The only main difference is that Obama seized power that Congress initially did not want to give and that it later griped about having returned to it.
Congressional self-abnegation fits hand-in-glove with the rise of presidential governance, or the misapprehension by the public that the president, rather than the Congress, is the centerpiece of republican government. Constitutionally speaking, of course, he is not. This was a style of leadership that was employed fitfully and with mixed success — in peacetime, by Andrew Jackson, Teddy Roosevelt, and Woodrow Wilson — until the Great Depression. From that point forward, no president has ever thought himself bound strictly by the duties outlined in Article II — taking care that the laws be faithfully executed, managing diplomatic efforts, checking Congress with the veto pen, and commanding the armed forces. He has been, instead, the national leader, a sort of elective king.
“Give the people what they want,” sneered Ray Davies of the Kinks in 1981’s blistering power-pop tune of the same name. That is the essential feature of republican government — for better and for worse. The Constitution is just a way of organizing popular sovereignty; the underlying truth is that the people ultimately are in charge. Madison lacked Davies’s knack for turning a phrase, but the Father of the Constitution understood that, when push comes to shove, republican government “is maintained less by the distribution of its powers, than by the force of public opinion.”
For nearly a century, the American people have preferred a powerful president over Congress, and the legislature has responded by actively ceding its authority to the executive and looking the other way when the president takes a little extra. Strangely enough, we have moved in the opposite direction from our British cousins, who over the past 200 years have empowered the Commons while reducing the Lords to a perfunctory role and transforming the Crown into a symbol of the national identity.
I cannot but think, then, that this victory against executive highhandedness will ultimately prove temporary. If the American people desire kingly government, that is what they will get — sooner or later. Good for Trump for refusing the title King Donald I. However, barring a revival of constitutional sentiments among the people, sooner or later some president will take back the vast powers implied by DACA, the people with cheer, and Congress will quietly breathe a sigh of relief.