We rejected kingly power once. We must do so again.
Constitutional principles are so deeply wedded to the American experience that they transcend presidential administrations.
By Anthony Michael Kreis
America has a constitutional crisis. The president of the United States is laying siege to the constitutional order. He has attempted to usurp the power of Congress to spend money; break longstanding laws governing the administrative state; run roughshod over principles of federalism; dictate by fiat the denial of birthright citizenship to American children; and appointed a roving billionaire, a stranger to the constitutional system who appears to rank above Senate-confirmed members of the Cabinet, to slash and burn the government from within.
The laundry list of complaints against President Donald Trump’s actions that disturb the fundamentals of government and the basic rights of Americans reads like the Declaration of Independence’s grievances against King George III in 1776 or the Declaration of Rights’s protestations against King James II in 1689. The Founding Fathers, who sought to destroy the kingly office in the wake of the American Revolution, are surely rolling in their graves.
Some constitutional principles are so deeply wedded to the American experience that they are supposed to transcend any one presidential administration and hold constant from election to election. The idea that America is governed by the rule of law and not by arbitrary executive decision-making is one of them. The U.S. Constitution rejected the wholesale dispensation of laws under a royal prerogative. Yet, the Trump administration has failed to adhere to this principle, wildly seeking to remake the entire constitutional order in his strongman image. Even worse, many members of Congress have abdicated their Article I power without so much as a whimper. Sen. Thom Tillis, for example, remarkably said that even though the administration’s actions might be unconstitutional encroachments on legislators’ power, “nobody should bellyache about that.”
The challenge now is that the principles that seem to be in vogue are more aligned with the constitutionalism of 17th-century Stuart England than our own– where the right to rule is absolute no matter the public sentiment, laws are displaced at the king’s pleasure, groveling to the state is essential to secure the monarch’s protection and favor, and legislative privileges are subordinate to the royal prerogative. This kind of imperial presidency is at odds with the constitutional design envisioned by the founding generation.
This is not to suggest that presidents do not often or should not have meaningful influence in the direction of American constitutionalism. Indeed, presidents can and have long demanded institutional rearrangements and reset the nation’s ideological commitments. Every election is important; some elections are order-shattering. These order-shattering elections tend to come on the heels of a widespread belief that the way of governing in the past no longer serves the nation well, especially in the aftermath of a debilitating political distress or economic catastrophe. The elections of 1800, 1828, 1860, 1932, and 1980 shuffled the nation's baseline ideological commitments in response to perceived betrayals of the constitutional order and the needs of the people. Riding off major electoral victories and acting with their governing coalitions, these presidents charted a new course for the nation. These movements articulated bold new ideas that became institutions unto themselves.
Trump endeavors to make his presidency among these grand reconstructive moments without the robust electoral mandate akin to say, Ronald Reagan or Franklin Roosevelt, and with complete disregard for the other branches of government. And from day one. But what is the mission other than the aggrandizement of power?
Andrew Jackson wielded his veto power and leveraged congressional majorities to breathe life into an anti-elitist ethos grounded in white supremacy that lasted for decades. Abraham Lincoln and the Republican Party championed principles of free labor through constitutional reformation after the Civil War – advancing the right of Americans to take advantage of the country’s natural bounty and make something of themselves. Through major legislative initiatives and the experience of a war against fascism, Franklin Roosevelt railed against economic royalists. He backed pragmatic governance in a world where authoritarianism and totalitarianism had gained a foothold. After a decade of American decline and pervasive distrust in government, Reagan called on America to pull back on the promises of the New Deal while rebuilding a renewed place of American hegemony in the free world.
No matter what anyone thinks of these presidents and their agendas, they had ideological commitments for state-building backed by substantial majorities and political movements. What are the core tenets of Trump’s political faith? Will America’s institutions and the American people let him, by the stroke of his pen alone, refashion the future path of constitutional development? Will the public tolerate substituting the judgment of Congress for his alone? That’s the test before the nation now.
Between the turbulence of multiple impeachments, a global pandemic, the corrosion of trust in elections, Supreme Court upheavals of longstanding precedents, and an insurrectionist attack on the Capitol, the past few years have thoroughly stressed our institutions and tried the public’s faith in the meaning of the democratic project. The state of affairs is unhealthy. In some sense, the time is ripe or will soon be for a presidency that demands institutional rearrangement and makes a call in the hue and cry of the moment for a new way forward. But, so far, Trump’s version of making politics isn’t an institutional rearrangement but a pernicious drive for categorical institutional dissolution.
America rejected kingly power once, and we must do so now.
Anthony Michael Kreis is a constitutional law professor and political scientist at Georgia State University College of Law. He is the author of “Rot and Revival: The History of Constitutional Law in American Political Development.”
You know, I think most of us are persuaded who read here. We're not going to survive by the powerful pen alone, though. We need people of platforms, with followings, to cooperate and start organizing us into meaningful protests. I'm just a single voice with few resources but am willing, and I am looking for leadership.
In a nutshell the author asks "Will America’s institutions and the American people let him, by the stroke of his pen alone, refashion the future path of constitutional development? Will the public tolerate substituting the judgment of Congress for his alone? That’s the test before the nation now." I think much more emphasis must be made, not on how the agencies are being disrupted, but on how the executive branch is attempting to take over the legislative branch.