The Imperial Presidency and American Politics

Governance by Edicts and Coups

Benjamin Ginsberg

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000400045
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

Those who saw Donald Trump as a novel threat looming over American democracy and now think the danger has passed may not have been paying much attention to the political developments of the past several decades. Trump was merely the most recent—and will surely not be the last—in a long line of presidents who expanded the powers of the office and did not hesitate to act unilaterally when so doing served their purposes. Unfortunately, Trump is also unlikely to be the last president prepared to do away with his enemies in the Congress and transform the imperial presidency from a theory to a reality.

Though presidents are elected more or less democratically, the presidency is not and was never intended to be a democratic institution. The framers thought that America would be governed by its representative assembly, the Congress of the United States. Presidential power, like a dangerous pharmaceutical, might have been labelled, "to be used only when needed."

Today, Congress sporadically engages in law making but the president actually governs. Congress has become more an inquisitorial than a legislative body. Presidents rule through edicts while their opponents in the Congress counter with the threat of impeachment—an action that amounts to a political, albeit nonviolent coup. The courts sputter and fume but generally back the president. This is the new separation of powers—the president exercises power and the other branches are separated from it.

Where will this end? Regardless of who occupies the Oval Office, the imperial presidency is inexorably bringing down the curtain on American representative democracy.

1

How the Imperial Presidency Has Poisoned American Politics

DOI: 10.4324/9781003109556-1

Those who saw Donald Trump as a novel threat looming over American democracy and now think the danger has passed may not have been paying much attention to the political developments of the past several decades. Trump was merely the most recent—and will surely not be the last—in a long line of presidents who expanded the powers of the office and did not hesitate to act unilaterally when so doing served their purposes. Indeed, even before he took office, Joe Biden declared that he would be issuing executive orders to address the nation’s great crises, including the Covid-19 crisis, the climate crisis and the racial equality crisis. True to his word, Biden issued a record 17 executive orders on his first day in office, many aimed at reversing orders issued by his predecessor.

Trump was, of course, the first president who explicitly threatened to refuse to cede power after suffering an electoral defeat. But, despite his claims of a stolen election, Trump failed to change the vote count and faced certain defeat when Congress affirmed the electoral vote. Accordingly, he turned to more direct, albeit not well-organized action.

Encouraged by Trump, hundreds of riotous supporters descended upon the Capitol on January 6, 2001 as both houses were meeting to formally count the electoral votes. Some rioters came to protest and possibly stop the counting of the votes; most were content to prance about proudly snapping “selfies” that would later help the authorities identify and arrest them; a small number, including several military veterans carrying weapons and “zip tie” restraints, seemed to have more sinister motives.

Though unfortunately resulting in several deaths, Trump’s last-minute effort to intimidate the Congress and, perhaps, cling to power, was far from a well planned coup d’état It was, perhaps, comparable to Hitler’s poorly conceived 1923 Beer Hall Putsch. But, of course, Hitler’s muddled 1923 putsch proved to be a harbinger of things to come. Perhaps, some future president, claiming victimization by unscrupulous foes and unwilling to surrender power, will develop a more effective plan of action.

Trump or no Trump, the imperial presidency has enervated American democracy. More and more, presidents govern unilaterally. To be sure, as the examples of Thomas Jefferson’s Louisiana purchase and Lincoln’s Emancipation Proclamation suggest, since the early years of the Republic presidents have occasionally issued important decrees. These proclamations, however, were sporadic presidential interventions and did not constitute a strategy of governance. Recent presidents, on the other hand, have used their institutional capacities, built around the Executive Office of the President, to fashion programs and policies using executive orders, regulatory review, signing statements and, most recently, emergency declarations. Clinton’s environmental program, Bush’s war on terror, Obama’s climate and energy policies and Trump’s immigration program were all implemented through executive power rather than legislation. Though widely criticized for his unilateral actions, Trump merely continued in his predecessors’ well-worn footsteps.

Though presidents are elected more or less democratically, the presidency is not and was never intended to be a democratic institution. The president is, at best, what Harvey Mansfield, Jr. called a “tame prince.”¹ He or she is a unitary executive whose power would always pose a danger that the framers hoped would be held in check by Congress and the judiciary. In the framers’ view, America would be governed by its representative assembly, the Congress of the United States. Presidential power, like a dangerous pharmaceutical, might have been labeled “to be used only when needed.”

Today, Congress sporadically engages in law making but the president actually governs. The only systematic congressional activity in recent years has been a pattern of unremitting, albeit often futile, investigation of the executive. Congress has become more an inquisitorial than a legislative body. Presidents rule through edicts while their opponents in the Congress counter with what amount to coups. The courts sputter and fume but generally back the president. This is the new separation of powers—the president exercises power and the other branches are separated from it. And, as America’s presidents become more and more accustomed to exercising imperial power, they will be less and less inclined to surrender it voluntarily. Do emperors surrender their thrones because of the nescient babble of the common folk?

Also contributing to the enervation of American democracy, the new separation of powers is accompanied by a new electoral politics in which partisans on both sides are loathe to accept defeat in presidential elections, effectively repudiating the idea of popular democracy.Donald Trump is hardly alone in challenging adverse electoral outcomes. Today, neither side actually views defeat at the polls as binding. Those beaten in the electoral arena will soon build a campaign to harass or unseat the elected president. Nearly half of all Republicans allowed themselves to be persuaded that Barack Obama was born in Kenya and deserved to be impeached. A majority of Democrats were convinced that Donald Trump colluded with the Russians to win the presidency (or with the Ukranians to keep the presidency) and merited impeachment. And, of course, many Republicans are certain that Joe Biden stole the 2020 election and would be happy for an opportunity to rectify the matter. Sadly, many Americans no longer seem to believe in popular democracy and only give lip service to the idea when their side wins. Those who lose the election view electoral defeat as a setback to be overcome by other means rather than a legitimate and conclusive popular verdict.

Contemporary American politics has often been characterized as “polarized,” but this term hardly seems to capture the extent to which competing forces on the political Left and Right have come to regard one another with fear and loathing. The summer and fall before the 2020 election were filled with protests and political violence, including “Black Lives Matter” demonstrations, looting, rioting and even a plot by right-wing extremists to kidnap and murder the governor of Michigan. These acts of violence were not specifically related to the coming presidential contest, but the election was not far in the background as protestors on the Left decried what they saw as Trump’s racism while “White Nationalists” voiced their support for Trump who, for his part, was careful not to disavow these enthusiastic fans.

Analysts have pointed to a number of factors that contribute to America’s political polarization. One of these has to do with the organization of the mass media. As recently as the 1990s, news programming was dominated by three major networks that competed for the same mass audience and offered similar mainstream interpretations of news and current events. Today, a host of electronic news outlets, to say nothing of social media, appeal to niche audiences by offering ideologically distinctive and highly partisan reports and analyses. The creation of media niches has certainly contributed to the spread of White nationalism and bizarre conspiracy theories like QAnon.

At the same time, party activists have sorted themselves ideologically with almost all liberal activists identifying with the Democratic party and nearly all conservative activists finding their home with the Republicans. In the not-so-distant past, each of the major parties boasted liberal and conservative wings, forcing each to articulate more moderate positions. This prompted some critics to complain that there was little overall difference between the two. Today, each party is ideologically more homogeneous and the parties, accordingly, more polarized.

Though these explanations are correct, a third factor not sufficiently appreciated is the extent to which political polarization has been focused and intensified, as if through a great lens, by the growth of presidential power and the presidentialization of American politics. To put the matter simply, as the importance of the presidency has increased, Americans, particularly party activists, have become ever more concerned with the results of presidential contests and more inclined to see them in Manichean terms. This phenomenon was already evident during the Bush and Obama administrations but was, of course, heightened by Trump’s rebarbative rhetoric.

Public acrimony among competing factions of America’s political elite came to a head during the third year of the Trump administration. By this point in time, the majority of congressional Democrats, particularly those in the party’s powerful Progressive wing, had decided that Donald Trump must be removed from office as soon as possible. Trump was, as we shall see, doing enormous harm to the Democrats’ institutional bastions and Oort cloud of supporting groups. Moreover, many did not want to wait until 2020 and risk the chance that the electorate might fail to oust Trump. House Intelligence Committee chairman and impeachment manager, Adam Schiff declared that Trump’s impeachment was essential because the nation could not be certain of a fair election, i.e., a Trump defeat, in 2020. Most Progressive pundits, of course, had long been calling for the president’s ouster.

House Speaker Nancy Pelosi initially said she opposed impeachment but, instead, wanted to see Trump defeated in 2020 and then sent to prison. Eventually, though, with members fearing 2020 primary challenges from angry Progressives, Pelosi gave into the pressure within her party and allowed the impeachment process to move forward. Just in case the affair did not go well, however, Pelosi found reason to be out of the country for most of it, leaving Schiff and House Judiciary Chairman Jerrold Nadler to lead the impeachment effort and suffer any adverse political consequences if matters went awry.

Trump, for his part, showed nothing but contempt for his enemies in Congress, labeling impeachment a witch hunt, and castigating the Democrats for making a case “loaded with lies and misrepresentations.” Trump dubbed Speaker Pelosi, “Nervous Nancy,” tweeting that she was a “nasty, vindictive horrible person.” In the president’s tweets, Representative Schiff was renamed “Shifty Schiff,” and “Schiff T. Coyote,” presumably to evoke the cartoon character with a similar name.

The GOP-controlled Senate, of course, declined to convict Trump on the charges brought by the Democratic-controlled House. Acquittal, however, did little to soften the president’s feelings about Congress. Trump had long made a practice of rebuffing congressional demands for documents and ordering his lieutenants to refuse to testify before congressional committees. Trump administration officials generally echoed their boss’s tone. Former presidential press secretary Sarah Sanders declared that Trump should certainly refuse to accede to congressional demands for his tax returns since Congress was not “smart enough” to understand them. Treasury Secretary Steve Mnuchin, testifying before the House Committee on Financial Services, chaired by California Congresswoman Maxine Waters, helpfully advised Waters that the essence of her job was to, “take the gavel and bang it.” Waters, of course, famously called Trump a bully and an egotistical maniac and characterized his advisers as a “bunch of scumbags.” Senator Elizabeth Warren declared that if she became president, criminal investigations would be launched into the activities of many Trump administrations officials who might well be found to have been guilty of serious offenses. These exchanges typify the new spirit of bipartisanship in Washington—the bipartisan exchange of insults and threats.

This new bipartisanship was on full display during President Trump’s 2020 State of the Union address, delivered on the eve of his expected acquittal. The president refused to follow custom by shaking Speaker Pelosi’s proferred hand. Pelosi failed to make the customary ceremonial announcement welcoming the president. Instead, the Speaker created a new ceremony by slowly and deliberately tearing her copy of Trump’s speech into pieces. Rather than question the Speaker’s lack of civility, some Democrats said she should have used a shredder. The new bipartisanship continued after Trump’s acquittal by the Senate when a number of Democrats demanded new investigations and even another impeachment effort, particularly if Trump was reelected in 2020. At the height of the 2020 COVID-19 pandemic, House Democrats announced plans to investigate Trump’s handling of the crisis. This sort of investigation would be well within Congress’s constitutional mandate. It is worth noting, however, that Democrats seemed divided on what exactly Trump had done wrong. Some vehemently declared that Trump had usurped power, while others seemed to think he had not done enough.

It is also worth noting that when an occasional bit of bipartisanship or even a friendly gesture across the aisle surfaces in Washington these days, it is immediately condemned as treasonous. Take the brouhaha that arose in October 2020 when California Democratic Senator Diane Feinstein publicly hugged her long-time friend, South Carolina Republican Senator Lindsay Graham. Graham chaired the Senate Judiciary Committee, of which Feinstein was the ranking member, and Feinstein had the temerity to praise Graham’s handling—though not the outcome—of the Committee’s hearings on Amy Coney Barrett’s Supreme Court nomination. Democratic activists quickly castigated Feinstein for her gesture, condemned her for “thanking Republicans,” and demanded that she be ousted from her leadership position.²

The bitterness of current political struggles should be seen as a symptom of a problem that began long before the Trump presidency and will continue to plague America after Trump, his advisers, and even their various enemies have left the political stage. As we noted above, this underlying problem is the rapid growth of presidential power. Writing in the early 1970s, the late Arthur Schlesinger, Jr. characterized the growing power of post-war American presidents in the realm of foreign and national security policy as signaling the advent of an “imperial presidency.” Presidents, according to Schlesinger, had been able to shrug off the constitutional and political shackles that once held presidential war powers under control. On matters of war and peace the president had become, “an absolute monarch.” Since Schlesinger’s day, the presidency has become more fully imperial. Successive chief executives, both Democrats and Republicans, have claimed unilateral powers that could be used inside as well as outside the borders of the United States to circumvent the Congress and allow the White House to govern without the need for legislative acquiescence.

The growth of the presidency has reshaped American politics. Like some political black hole, the imperial presidency produces gravitational effects that deform political processes. Because of the expansion of presidential power, so much significance is now attached to America’s quadrennial national elections that competing political elites are polarized and campaigns characterized by high levels of the “tumult and disorder” once feared by Constitution’s framers.

Long before Donald Trump arrived on the political scene, presidents began to bolster their capacity to govern unilaterally, substituting executive orders and other political decrees ...

Table of contents

• Cover
• Half Title
• Endorsements
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgments
• 1. How the Imperial Presidency Has Poisoned American Politics
• 2. The Rise of Presidential Imperialism and the Politics of Edicts and Coups
• 3. Fighting to Control the Nation’s Bureaucracies
• 4. How the FBI and Other Security Agencies Interfere in American Politics
• 5. How the Courts Enable the Imperial Presidency
• 6. The Presidency and America’s Future
• Index