We have been living for a very long time with the idea of executive supremacy. Some misguided attorneys have argued, since the presidency of George W. Bush, for what they like to call the Unitary Executive. By this they mean that the power of the president is virtually unlimited not only throughout the executive branch of government but in the other two branches, also, and that there is no effective or legitimate check on the president’s powers at home or in the international arena.
These are some of the same people, by the way, who argue for what they call constitutional originalism.
We got to the twilight zone of executive supremacy somewhat accidentally, by way of two world wars in the mid-20th century, the invention of the atomic and then the hydrogen bomb, the instantaneousness of war in the age of Sputnik, the pace of modern mobility and modern communications, cruise and ICBM missiles, asymmetrical terrorism, and now cyberwar. There is a long debate in historical circles about whether America sought world hegemony or just bumbled into it, but it is clear that in the 21st century we need a larger and stronger national government than Thomas Jefferson could possibly have understood and a much stronger executive than the Founding Fathers envisioned. All except Alexander Hamilton, of course.
But here is the truth, at least according to the U.S. Constitution, which that was hammered out in the summer of 1787 and ratified by the people of the 13 original states in the years that followed:
Not only is Congress a co-equal branch of government, but it was created by the Constitution in Article I. The executive is only Article Two and the judiciary Article Three. The Founding Fathers clearly intended to make the legislative the primary branch of the national government. It’s obvious. Had they intended the executive branch to be supreme, they would have made it Article One in the Constitution.
This makes perfect sense in republican theory. Here’s how Jefferson saw it. The people themselves are sovereign. They have a natural right to govern themselves in pure democracy in which every single citizen participates in the deliberation of every public issue.
According to our social contract, however, the people choose not to govern themselves directly. Instead, they elect individuals to represent them in public councils. These representatives of the people serve on the school board, the city and county commission, the state legislature and the Congress of the United States.
The Founding Fathers were so committed to the idea of representation that they created two houses in Congress. (Benjamin Franklin, among a few others, advocated a unicameral system, but bicameralism won the debate at the Constitutional Convention in Philadelphia.) The Senate consists of two at-large representatives from each state, U.S. senators, and the House of Representatives works by way of congressional districts of roughly equal population size — currently 435 of them nationwide.
This is the essence of the U.S. government: representative democracy enshrined in the two houses of Congress. The Congress is the only branch of the national government that can pass laws. The Judiciary reviews laws but does not create them. And the executive executes laws but does not write them. That’s why Congress balked recently when the current president tried to build a wall on the Mexican border when Congress itself had explicitly chosen not to appropriate funds to do so. Only Congress can spend the people’s money.
If legislative supremacy was the decided will of the Founding Fathers in Philadelphia, Jefferson was committed to that concept even more than his compatriots. He once advised President Washington that he should not veto congressional legislation if he disagreed with the policy but only if he thought the legislation violated the U.S. Constitution. In Jefferson’s formulation, the president’s duty was to fulfill legislative mandates. He would also make recommendations to Congress and conduct foreign policy (with the help of the Senate), but Congress could refuse to accept the president’s recommendations whenever it pleased.
For most of the 19th century, Congress was supreme. It wasn’t until the presidency of Abraham Lincoln that the executive really took contro, and that was because of an unprecedented national crisis of existential proportions. But Lincoln was followed by caretaker presidents — Benjamin Harrison, Grover Cleveland, Andrew Johnson, Chester Arthur, Rutherford B. Hayes, etc. Then came the 26th president, Theodore Roosevelt, who more or less invented the modern presidency. You could say that Roosevelt did this before it was really necessary, but he loved power and wanted to accomplish so much for America that he really couldn’t help himself. Congress complained, but largely gave him what he wanted.
Then came the strong presidents of the 20th century: FDR, LBJ, Nixon, G.W. Bush and now Donald Trump.
Here’s the constitutional crisis, what might even be called the constitutional nightmare of our time. The current president is now insisting that members of the executive branch will not be permitted to testify before Congress. Subpoenas are being ignored with derision and contempt. Cabinet ministers are refusing to testify before Congress, and when they do appear they respond to questions with monarchical hauteur. Clear and unambiguous laws are being violated by officials of the executive branch. This is not the first time the executive has thumbed its nose at the legislative branch in American history, but it is the most brazen, contemptuous and indifferent episode of executive defiance.
We all know that the only remedy is impeachment, that we reserve impeachment for something so awful that a successful removal by impeachment has never once occurred in our history and that it is virtually impossible to believe that 67 members of the Senate would vote to convict any president under our two-party system. Which means, effectively, that not only the president but the entire executive branch of government now lives above the reach of the law.
The only hope for our republic now is that the legislature reasserts at least its co-equal status under the U.S. Constitution. I do not wish to exaggerate. I believe the very survival of the United States under a republican form of government is now in jeopardy.
And here’s the second crisis, the second constitutional nightmare. We know that the very people who are defending the current president are, by principle and nature, committed to originalism and legislative supremacy. In other words, it is not fundamentally about politics with them. It is about constitutional principle. You only have to imagine an executive of the other party arrogating to himself so many powers that belong to Congress, showing such contempt for constitutional norms, behaving like a monarch and at times sounding like an authoritarian despot, to understand how loudly these principled individuals would be howling at the current distortions of the Constitution, if — for whatever reason it is — they were not defending this president. And howl they did when President Obama famously said he had a pen and a cell phone and was prepared to govern the country without Congress if it refused to act. On that occasion, Congress rightly argued that the Constitution does not permit the president to act unilaterally no matter how frustrated he might be with Congress.
So, what makes those principled conservatives turn a blind eye to the extra-constitutional behavior of the current occupant of the White House?
They may indeed get their conservative judges and Supreme Court justices. They may even get themselves a court that will overturn Roe v. Wade, or banish Muslims, restrict the number or brown and Third World immigrants who reach America or close the Southern border. When you ask good, decent, law-abiding and civil Trump supporters how they can support a person who is trampling on most of the norms of American life, they say they, too ,deplore the president’s Tweets and his antics, but hey, we got Neil Gorsuch didn’t we?
But will it be worth it? I refer them to Mark 8:36.
Our system works best when it is in balance, when each branch of the government is supreme within its own constitutional portfolio, even when there is a healthy amount of creative tension between the three branches. But whenever one branch lords it over the other two (and Jefferson would add, whenever the national government lords itself over state and local governments), serious national crises invariably follow. We are in one now. And there is no end in sight.
It cannot be ruled out that the current president might do dramatically more rash things in the months or years — possibly six — that remain in his presidency. One of his formerly most trusted consiglieres has testified under oath that he cannot imagine the current executive leaving the presidency peacefully at the terminus of his time in office. That seems unthinkable. Probably it won’t happen. But five years ago, if you had asked me if someone who slept with and then paid off porn stars to keep them quiet could be president of the United States, I would have said, never.
John A Burke May 21, 2019 at 8:43 am
Thank you Clay, for your (as usual) thoughtful and reasoned analysis. I have perused the Constitution and cannot find any support there for the Justice Department’s legal opinion that a sitting president cannot be indicted. The Supreme Court ruled that Clinton, then a sitting president, was not immune from a civil suit. A priori, a president accused of criminal behavior ought to be held to account. Now that Barr has been appointed Attorney General, it appears that we are at the mercy of a criminal cabal.Reply
Diana Green May 21, 2019 at 9:55 pm
Impeachment would require that ALL of the Executive staff be impeached as well. Otherwise we will end up with worse that what we have, just a quieter and sneakier “leader.” It seems one of the only choices is civil war but who can beat the brutality being put into place? Did you say dictatorship??Reply