Trump, Executive Power and the Constitution

You sometimes hear it asked whether the framers would have approved of executive actions like Trump’s willful sabotage of the ACA. The answer is “probably not.” But the problem is that the rest of their Constitution created a sclerotic legislature largely insulated from democratic accountability, making it inevitable that executive action will fill the vacuum: 

While this kind of executive policymaking is not what the framers had in mind, it’s still going to become more common. The American separation-of-powers system always tends towards stasis. There are so many choke points: a bicameral legislature, the Senate filibuster, the presidential veto, and judicial review. When Congress is unable to act, executive power is likely to fill the vacuum.

The problem is compounded by the various ways in which the Constitution distorts democratic choice. Because of factors like vote suppression, gerrymandering, nearly unlimited campaign spending, and institutions that over-represent white rural voters such as the Senate and the Electoral College, Republicans have been able to lose the popular vote and still win elections. Winner-take-all elections, instead of proportional representation, mean that the slimmest of victories puts total power in the hands of the officeholders who did not attract many voters. Racially and culturally-polarized politics mean that most rank-and-file Republicans pull the lever for the party despite not agreeing with much of its economic agenda. Once in office, Republicans are committed to policies, such as the repeal and replacement of Obamacare, that appease the Republican donor class and the activist base, but not most Republican voters and certainly not Democrats and independents.

Republican Congresses are left incapable of fulfilling their incoherent campaign promises, such as repealing Obamacare’s regulations and subsidies without taking insurance away from millions of Americans. Caught between their base’s demand to repeal, even without a meaningful replacement, but fearing the wrath of voters in more moderate states, they ended up passing nothing. The inevitable outcome is the Republican president, elected by a minority and unconcerned with reaching beyond his base, enacting the right-wing’s demands by fiat.

When considering Trump’s randomly destructive style of policymaking, it’s worth remembering that in 2016 the plurality of American voters chose Hillary Clinton, the candidate who promised to faithfully execute the Affordable Care Act, only to be denied their choice by a mechanism the Constitution’s authors intended in part to curb “excessive democracy.” The framers feared the powers of the executive branch being abused, but the system they designed has allowed it to happen.