The Executive-Branch Threat to the Presidency

By Michael Brendan Dougherty

Tuesday, July 28, 2020

 

Whether Donald Trump hangs on for four more years, on for four more years, or turns the White House over to Joe Biden, his first term has exposed a tremendous danger to the office of the president. Unfortunately, that danger is the White House itself, and the larger executive branch around it. The elected president is in peril of being swallowed by the presidency.

 

There has always been a concern that the unelected bureaucrats could stymie the will of an elected president and that Republican presidents in particular have difficulty finding the kind of administrators who will faithfully and energetically carry out the will of the lead. Advisers too have always presented a problem for presidents, in that they may try to contain the principal’s decisions by manipulating the information that gets to him.

 

But the problem is much worse as we approach the end of Trump’s first term. Trump has faced an unprecedented wave of insubordination by his own White House staff, and he has often met that with an unthinkable, unleaderly passivity.

 

Sometimes Trump merely tweets his will rather than attempting to effect it, such as his proposed ban on transgender persons serving in the military. His tweet on this was simply ignored. Sometimes, as in the case of White House counsel Don McGahn’s flagrant ignoring of presidential orders, the adviser has saved the president.

 

The absolute worse case, however, came in foreign policy. You may remember that after a call with Turkish president Recep Erdogan in December of 2018, Trump announced the complete withdrawal of U.S. troops from Syria. He had asked if Turkey could finish the job of mopping up ISIS. When Erdogan signaled that Turkey could, Trump shouted the new order down to prepare for withdrawing all troops to then-national security adviser John Bolton. It was obvious, from this exchange, that Trump had been looking for options his advisers would not give him, and he moved at the first moment a NATO ally gave him one.

 

But weeks later, “the White House” announced that 200 troops would in fact stay engaged in Syria, a 90 percent withdrawal. A few days after that, the Wall Street Journal reported that the United States would perhaps do only a 50 percent withdrawal. This kind of behavior, authored by Trump and his advisers, threatens the democratic connection between the president and the operation of the executive branch of the government.

 

The only reason this hasn’t ended in a constitutional crisis is blind luck. If American troops were killed in Syria, something like what happened in Somalia under President Bill Clinton, it would immediately leave the president responsible for a decision he didn’t really make.

 

This pattern of insubordination or taking advantage of the president’s inattentiveness keeps repeating itself. And, in many ways, the Trump years have been an occasion in which a conscious resistance spread across the administrative state. Beyond that, judicial and even media figures have used the first term to practice a kind of undirected coordination to resist and undermine the president.

 

The danger is not lifted by the election of a “normal” politician such as Joe Biden. In fact, Biden has almost invited an escalation of this treatment by ambitious people around him by declaring himself a transitional figure, a bridge to a Democratic future in which he is neither a beloved nor respected figure.

 

The populist energy that infuses American political life at the moment is partly a product of constitutional dereliction. Congress no longer passes laws and therefore fails to do the work of deliberation and conciliation of America’s factional interests. And in that environment, the judiciary pronounces sweeping victories and defeats for our warring factions on principle.

 

The diminution of many civil associations, churches, and unions has meant a lack of energetic representation for certain interests at the heart of our political life. This in turn allows a bipartisan consensus to simply remove issues such as immigration and foreign policy from democratic input. And now the authority of the presidency itself is overwhelmed by an increasingly permanent administration. Such a situation risks severing the president’s legitimating connection to the American people.

 

Those who put the “world order” or “liberal values” into such direct conflict with constitutional duty have been playing a very dangerous game. One wrong move, and there will be little hope of reconciling them again.