Trump has progressives worried about our democratic norms, but do they see the danger they pose?
Trump has progressives worried about our democratic norms, but do they see the danger they pose?
F or much of its long history, The Atlantic has been a fearless critic of received wisdom on both sides. During the 1930s, it ran a series of articles by Walter Lippmann slamming the “gradual collectivism” of Franklin D. Roosevelt. During the 1960s, it featured articles critical of the Great Society’s welfare programs. More recently, of course, it has emerged as a mortal enemy of Donald Trump and, during 2019, did more than any institution in America to “mainstream” the idea of impeaching him for a wide variety of possible offenses.
Much of the criticisms against Trump seemed to range from the unfounded to the preposterous, and the warnings of dictatorship had a distinct “boy who cried wolf” quality. But defending Trump has become much harder since January 6, which seemed to confirm the most ominous warnings. That Trump’s staunchest supporters aren’t more horrified by the ransacking of the Capitol is itself horrifying.
But the danger is not only from the right, something The Atlantic used to know but has apparently forgotten. Given its prestige among progressives, its current blind spot for perils from the left is particularly worrisome, because those perils are more long-term, more structural, and much more profound. As if to confirm Patrick Henry’s warning that the proposed Constitution would lead to a great consolidation of government power, the past century of progressivism has relentlessly expanded the power of the federal government, while concentrating it in the presidency. The federal executive’s steady absorption of power from the other branches and from the states is the greatest long-term danger to our Constitution, and it has been the progressives’ core constitutional commitment since Woodrow Wilson. It is the “gradual collectivism,” democratic in form but totalitarian in trajectory, that Walter Lippmann warned of.
Hence, a recent article by Jonathan Rauch, “The 5 Trump Amendments to the Constitution,” is worth considering carefully, as representative of the hypertrophied criticism of Trump and the atrophied criticism of Rauch’s own side. In it, Rauch worries that “The 45th president has profoundly altered our system of government.” He cites five examples, all of which miss the mark.
The first of Trump’s informal constitutional “amendments,” Rauch argues, is that henceforth presidents will not be removed from office for high crimes or misdemeanors “should a partisan minority of the Senate choose to protect him.” A moment’s reflection suffices to see that this has always been true. The Senate “trial,” which requires a two-thirds majority for removal, is basically a dressed-up vote of “no confidence” among the president’s party in the Senate, “high crimes and misdemeanors” having whatever meaning Congress chooses to give the phrase. Senate Republicans voted against removing Trump the first time around not because they are suddenly willing to ignore any high crimes or misdemeanors, but because the Democrats didn’t prove much of anything in the end, as I chronicled at length in The Atlantic a year ago.
Democrats were so convinced of the case against Trump — even before hearing the evidence — that they failed to notice the weakness of the case. The charges against Trump, Rauch tells us, “seemed as serious as the Watergate shenanigans that forced Nixon from office,” but that is simply not true. The charges against Nixon were so explosive that Republicans at first simply didn’t believe them. And when the smoking gun finally emerged, they abandoned him in droves — despite the fact that Nixon was vastly more popular among the Senate Republicans of his day than Trump ever was in ours. The charges against Trump were much more like the charges against Clinton, in that nobody was surprised by them and the president’s party didn’t much care, the main difference being that the charges against Trump didn’t even allege a violation of federal law.
The second constitutional “amendment” Rauch cites is that henceforth “congressional oversight shall be optional” and presidents can freely choose to ignore congressional subpoenas. But there is nothing new under the sun here either. On the advice of White House counsel, the president refused to comply with subpoenas for internal administration documents and administration witnesses for precisely the same reason other presidents have done so: to protect the prerogatives of the executive branch, something presidents have a constitutional duty to do. Rauch says such subpoenas are often negotiated, and that’s true — but they also wind up in court, as happened to Richard Nixon. Courts ruled against Nixon because the subpoenas were targeting evidence of a crime. They ruled in favor of Trump because this time, the subpoenas were simply a fishing expedition, necessitated by the Democrats’ impeachment in search of an impeachable offense.
The third amendment Rauch cites is that, after Trump, “congressional appropriations shall be suggestions” and the president can spend money however he wants. This issue also has a long history and raises a serious question of executive prerogatives. Appropriations are usually accompanied by congressional authorization bills that specify how different pots of money are to be spent. The details are often contained in the committee “reports” that accompany those authorizations, but not written into law because of the danger that a court might rule against Congress on separation-of-powers grounds. Here as elsewhere, Trump was bound by court rulings. Nothing new under the sun.
But there is a more important point here. The lawless manipulation of appropriated funds is a hallmark of progressive politics. Recall President Obama’s transgender school-bathrooms order from the closing weeks of his administration. He threatened to cut off funds for schools that didn’t implement his radical new definition of “separate sexes” under Title IX, knowing full well that the definition was totally contrary to Congress’s intent. And he issued the order as “guidance” to make it nearly impossible to challenge in court. Such orders are likely to be a mainstay of the Biden administration, particularly as it imposes policies on state and local governments through coercive conditions attached to federal funds, entirely outside the appropriations process.
Rauch’s fourth “amendment” is even easier to dispose of: “The president shall have authority to make appointments as he sees fit, without the advice and consent of the Senate.” Two points here: First, the problem was created by Senator Chuck Schumer’s unprecedented refusal to allow expedited votes on Trump nominees, which gummed up the entire appointments process for years. That is one Democratic tactic that Republicans thankfully have not employed, as tempting as it is to give Democrats a taste of their own medicine. And second, installing temporary or acting officials in offices that are supposed to be Senate-confirmed is a paltry alternative to Senate confirmation, as those appointees will lack critical legal authorities, which was another major problem for Trump.
Rauch comes closest to hitting the mark on his fifth amendment: “The president shall have unconstitutional authority to dangle and issue pardons for the purpose of obstructing justice, tampering with witnesses, and forestalling investigations.” The shame of Clinton’s last-minute pardons-for-cash has hardly faded, but this whataboutism is shameful in itself. Trump’s most glaring flaw as president was the number of times he veered dangerously close to obstruction of justice by seeming to interfere, or offering to interfere, in Justice Department investigations. The Democrats tried to advance obstruction of justice on the basis of the Mueller report but abandoned the effort because they had even less evidence for that charge than they did for abuse of power, to say nothing of the silly made-up charge “obstruction of Congress.” The reason is that Trump never stepped over that line, for all the times he came dangerously close.
In closing, Rauch decries presidential actions that:
give the presidency a degree of unilateral discretion and impunity that the Founders took great pains to preclude. Together, they make it obvious and undeniable that Congress is no longer the first among equals in the constitutional hierarchy, or even a coequal branch. The presidency is supreme. . . . So we are left relying, more than ever before, on presidential character and self-restraint. We are left to hope that subsequent presidents do not use the weapons Trump has given them.
This is a true characterization of American democracy today, but the blame lies almost entirely with progressives. Early in 2016, as it was becoming clear that Donald Trump would be the GOP nominee for president, I wrote an article for National Review titled “Dictatorship, American Style.” In it, I argued:
An American dictatorship is now a realistic possibility, because 80 years of progressive politics have left us with its vital elements fully contained within our system of government. Since the administrations of Woodrow Wilson and Franklin D. Roosevelt, progressive presidents have been loosening the Constitution’s constraints on executive power, Obama most of all. We could soon find that the only things standing between us and the bubble’s bursting are the forbearance and wisdom of Donald Trump.
Rauch concludes: “The real fix for the Trump amendments, though, is not statutory. It is political. It requires Congress to begin reasserting its institutional prerogatives and putting them ahead of shorter-term partisan politics.” My jaw dropped when I read that sentence. Nothing could be more contrary to the progressives’ century-long agenda of constitutional transformation than Congress reasserting its prerogatives. The true proponents of congressional prerogatives are senators such as Ben Sasse, Ted Cruz, and Mike Lee, and they are regularly pilloried by progressives for their “counter-majoritarian” impulses.
When I first got to the White House early in 2017, I asked for a meeting with one of the president’s most senior domestic-policy advisers. I wanted him to consider embracing the REINS Act, which would require all major regulations to receive congressional approval before they could have the force of law. My argument was that it would be at least somewhat embarrassing for Democrats to vote against limiting President Trump’s power. The adviser’s response was arresting. He was totally confident that we couldn’t find a single Democrat to vote for such a law, because they simply have too much invested in the administrative state and its capacity to create laws outside the congressional process.
In The Good Society (1937), Walter Lippmann wrote:
The gradual collectivist believes in the absolutism of the majority, having by a fiction identified the mandates of transient majorities with the enduring and diverse purposes of the members of a community. He thinks it absurd that a few oligarchs in the Kremlin or demagogic dictators in Berlin or Rome should pretend that their personal decisions are the comprehensive purposes of great nations. Yet the gradual collectivist, under the banner of popular sovereignty, believes in the dictatorship of random aggregations of voters. In this theory, the individual has no rights as against the majority, for constitutional checks and bills of rights exist only by consent of the majority.
The progressives’ “equity” agenda fits that description precisely, insofar as it is exactly contrary to the “equal protection of the laws” — as is the animus often expressed in the pages of The Atlantic against “counter-majoritarian” devices such as the filibuster, supermajority voting requirements, and the prerogatives of states in our federal system.
Since January 6, the Right can no longer deny the danger posed to democracy by its extremists. Progressives better awaken to the danger on their side, too, before it’s too late.