Executive Power, the Two Party System, and Donald Trump

Over drinks the other evening, I played a parlor game with several of my companions: I asked each to rate on a scale of 1 to 10 how nervous he or she was about a Donald Trump presidency, figuring into the calculation both the likelihood of the event and the magnitude of the disaster it would pose. The mean was around 7 or 8—with most people rating the event completely terrifying but the probability low. The complacent outlier rated the matter only a 4. The alarmed outlier, however, was a career Justice Department lawyer, who insisted—against the rules—of rating the matter a 14.

His explanation, which has two distinct elements, bears some reflection.

First off, he argued, the mere fact that Trump has come this far shows something deep and ugly. Even if he now loses and loses big, he has already shown that something very like a Trump presidency is possible. Even with all his craziness, his malevolence, and his self-destructive narcissism, Trump is polling around 40 percent of the electorate. That means that someone a little more polished, a little less evidently unhinged, and a little less committed to offending large swaths of the electorate could plausibly win a federal presidential election. That was something we didn't know about America as recently as last year. As my interlocutor put it, even if Trump loses, "the sheen is off America for me."

In a later conversation, he elaborated on a more tectonic element of his worry: Because a Trump presidency or something like it is suddenly more than a theoretical possibility, we have to adjust our conception of the separation of powers. It used to be, he went on, that when we thought about executive power, we would always include a nod-to-Nixon phrase about the possibility of abuse of authorities. But those acknowledgements of the potential for abuse were largely pro forma exercises because we, in fact, all operated on the assumption that the president is sane and that the electoral process serves to ensure that someone too nutty never gets anywhere near the presidency.

That assumption no longer holds, my interlocutor argued, so we now have to think about broad executive powers not merely with insanity and abusiveness in a president as theoretical possibilities, but with insanity and abusiveness as plausible traits of a plausibly electable president. This is different, he contends, even from Nixon, who, after all, did not run on his worst characteristics but sought to keep them hidden. A model of separation of powers that does not take seriously the possibility of an overtly crazy bigot in the Oval Office, he argued, will no longer adequately describe the dangers of a strong executive.

So spoke an official of the executive branch who works in the national security arena.

I've been thinking about these comments ever since, particularly in relation to my recent series on Trump and the Powers of the American Presidency (here are Part I, Part II, and Part III). In those posts, I argued against the notion that we could plausibly tyrant-proof the White House from a person like Trump; the powers of the presidency are simply too awesome and too inherently discretionary. Because I stand by that view, I take my interlocutor's comments rather to heart.

Consider: Had they contemplated even a small chance that the presidency would be occupied by someone like Trump, could Eric Posner and Adrian Vermeule really have written a book as cheerfully excited about executive power as The Executive Unbound? For that matter, could I defend the scope of collection authority under FISA 702 or the authority of the president to conduct drone strikes against terrorist targets if forced to confront more than a theoretical possibility of the president as a true madman?

One possible answer to the problem of the Trumpian executive is to observe that the situation is at least a little less dire than this separation of powers analysis would suggest. The reason is an important non-constitutional element of our division of power: the two-party system. Historically, the two party system has done a remarkable job of keeping crazy people away from the presidency. The American presidency is really the product of three elections, not one, after all: the primary elections in each party and then the general election faceoff between the winners. The primary phase alone has a great track record of winnowing out nutjobs. Say what you will about either the winning or losing side of modern elections, but both parties have pretty consistently put forth plausible figures whose sanity was not in serious question and on whom the electorate could rely on to perform as steady hands.

To be sure, when the two-party system exercises less control over the process, the historical results start to look more Trump-like. The election of 1948, remember saw both an overtly segregationist general election candidate in Strom Thurmond and a left candidate in Henry Wallace who was channeling Moscow. George Wallace's campaigns certainly had a Trumpian feel in some respects as well. But Trump is a different animal. He is not just a bigot or ideologically extreme; he's also (I'll just go ahead and say it) apparently unhinged. And he's not a third party candidate either. He's a major party nominee. That combination is historically unique, as far as I know.

That said, so far anyway, the two-party system as a protection against a crazed executive has not failed. Rather, one element of that system—the Republican Party and its nominating process—has failed. The other has chosen a conventional Democrat of significant experience who fits comfortably within the historical pattern of the two-party system's winnowing approach to the presidency. In other words, what we have so far is one major fuse blown in a system which has other important fail-safes. That's one more fuse than has ever blown before, but it's not a total system collapse.

So let's assume for a moment that Hillary Clinton beats Trump decisively and the country thus forestalls the immediate danger of Trump's access to the powers of the presidency. How should we understand this event? Is it, as my interluctor would suggest, a too-close-for-comfort encounter which reveals that we are too complacent in our views of executive power? In the alternative, does it reflect the success of one of those non-constitutional safeguards, wherein one political party can spin completely out of control and the result is electoral rebuke of a sort that preserves the instrumentalities of power in the hands of the sane? Or is it something else—that is, a strong indicator that some of the key institutions that restrain power are starting to weather? Some are failing entirely, while some—like the Democratic Party—are showing wear but holding up okay for now.

I think it's probably too early to tell. In a functioning two party system, after all, parties react to setbacks and make adjustments. If the electoral rebuke of the GOP is strong enough, and the party reacts by getting its act together and going through the painful and long-overdue process of defining a more modern conservatism and restoring itself to electoral plausibility, that will be strong evidence that the Trump phenomenon was a kind of aberrational spasm of the sort that democracies have circuit breakers to protect themselves from.

May it prove to be so.

But I fear that the explanation may turn out to lie in that broader weathering and atrophying of our systems of restraint on power. We have a legislature that no longer functions in basic areas, after all. Congress chooses not to make immigration policy or pass budgets on time or authorize uses of force overseas. All of this serves, in the aggregate, to lessen restraints on the power to the president, who ends up acting on his own as a result. That migration of power from the legislature to the executive puts an ever-greater premium on the wisdom and judgment of the President, whoever he or she may be. Yet it also now seems to coincide with—at least in this instance—failures of party institutions to control the gateways to that ever-increasing power. In other words, we may be seeing a simultaneous degradation of our political institutions in which the failures of the legislature increase the power of the presidency, while the failures of the parties increase its susceptibility to stupidity, demagoguery, even insanity.

It's too soon, in my view, to conclude that we're actually confronting this intensely dangerous combination. It's not too soon, however, to wonder whether we may be. And it certainly isn't too soon to note that the electoral stakes in matters of executive power have grown very high indeed.