The headline, I am sure, strikes you as provocative, maybe irresponsible too, perhaps risible. I assure you it is none of these. I mean to argue that we have erred, and may err again, in seeking to elect a major political figure as President. Far more appropriate, for Constitutional purposes, that we return to electing less commanding personalities to the office whose job description is set forth in Article 2.
We have given far too much power to the office of President. No such accretion of authority is contemplated by the Constitution, which gives primary power to Congress. The Constitution reserves almost all power to the people, and to the States, and not only in the Tenth Amendment. For example, electing : the people elect the members of Congress, but the President is elected by States, not by the people. that’s what the Electoral College is all about. I shall talk further about the Electoral College, but first let’s discuss why I insist upon a theory of the presidency which may seem to you merely antiquarian:
We see in Mr. Trump what appears to be a revolutionary, radical alteration in the way our President handles his powers, but Mr. Trump’s abuses are only a gross version of powers that previous presidents have arrogated. There are many factors in how this happened. First, wartime in 1917-18 and again in 1941-45 urged Congress to grant the President — already given the office of Commander in Chief of Federal armed forces — a fair number of emergency powers. Congress deliberates, but in war, decision, not deliberation, has pride of place. The Cold War, which bean in 1946 and lasted until 1989, locked in place those wartime grants of power, and these were occasionally abused : think of Harry Truman’s attempt to take over the nation’s steel industry (1946), Ronald Reagan’s assistance to the Nicaraguan Contras (1982-86), and, more recently, President Obama’s many executive orders regarding immigration, civil rights, and gun control. All of Obama’s orders seem most worthy, and they are to me as well: the trouble was that power granted to do things does not distinguish between worthy and unworthy. It is power, not worth, that is granted or acquiesced to. Mr. Trump has certainly abused the unworthy and pushed the limits of powers granted, and we rightly condemn him for it : yet his pushing his office’s acquired powers to the limit and beyond doesn’t seem to me much different from what the Capetian kings of France did in the 13th, 14th, and 15th centuries, nor is it different from the arrogations practiced by all sorts of rulers throughout European history — and by legislatures, too. When there is no constitution in place in a polity, or none written, power rests with those most able to take it.
Yet we have a written Constitution, a pact to which our representatives have agreed and documented said agreement with their signatures. Our political structure is a contract, whose terms are set in writing to be always reread and reminded of. Power can still be ceded by one branch of government to an other, but no such cession is ever permanent, because the Constitution is the permanent agreement, and power shifts are at most a temporary expedient.
I understand that it is somewhat strange to describe as temporary the grants of Congressional power to the President that have held place continuously since 1941. Hardly any of us have lived under a President limited to Article 2’s powers, which require the President mostly to execute Congress’s orders (we call them “laws”). Yet that sort of subordinate presidency was the norm — perhaps mistakenly, maybe the framers should have decided upon a presidency holding myriad discretionary powers: but they did not choose that. They chose an executive much more like James Monroe, or Millard Fillmore, or William H Taft, or Calvin Coolidge: presidents who did not initiate legislation, who did not issue executive orders in place of legislation: presidents who were unimportant in themselves and whose names today remain obscure to all except history majors. Equally hard it is, now, to recall that most of the major reform, or innovative, legislation enacted in our history has arisen from Congress, not presidents : land grant, anti trust, anti-injunction labor laws, child labor laws, the Federal Reserve, the New Deal, Civil Rights laws (many of which were adopted over the objections, or indifference, of then presidents). Once upon a time, Congress was indeed that important.
Once upon a time even Supreme Court appointments, which begin with a very significant Presidential power, that of nomination, were not major events in the political calendar of a presidency. The High Court was rarely called upon to upend Congressional enactments, and even when it was so called, it did not act in a partisan way. Only occasionally — Louis Brandeis was the big example until 1987 — did a nominee face significant political opposition. But, as with everything else a modern president is able to do, High Court nominations are now a major reason for electing this one or that one,and so nominations to the Court become major acts of presidential, unilateral power.
Among the most significant accretions of power that modern presidents possess is something completely outside the Constitution’s orbit : every major candidate for the office is known nationwide by almost every voter; is, in fact, a celebrity, with all of the aura that haloes the visages of celebrities, political or otherwise, ion our televised world. Thus the custom now is to refer to a candidate as “yass queen” or an “icon,” or simply as a hero. Scads of media people follow them everywhere. Mr. Trump has 54 millions of twitter followers; most other candidates for president have from 500,000 to 5 million. That’s’ a lot of importance. In contrast, most members of Congress have from 10,000 to 200,000 followers. Followers mean power. Even without Congress making a grant of power, celebrity has taken a large slice of that power away and deposited it in the Presidency bank account.
Celebrity has made the president — and major candidates for the office — seem larger than life and louder than ordinary speech. We see them, and we listen. Most voters don’t know much about the Constitution’s arrangements, and i doubt that many would care about them if they did know. Actual lived life has much, much greater weight than an agreement agreed to in 1787. We say we uphold the Constitution, and we likely mean well by what we say; but our practice, politically, has little to do with what the Constitution requires. For example, the Electoral College. It has a very specific purpose : to assure that a candidate for the only office voted on by every corner of the nation be chosen by a majority of electors assembled by state. One can very well win the presidency with far less than a majority of actual votes, as long as he or she carries the majority of votes in states totaling 270 electors. To us, who think of the president as our totem — a kind of personal overlord — electoral votes, given state by state, seem unfair. Yet they are exactly what the Constitution envisions and says so ; States elect the president, because it is states that have to deal with the laws that he or she is entrusted with executing.
As long as the President, and all major candidates to be president, are instant celebrities, we will get celebrity government, not the rule of law; decisions by being known, not by having the authority to make them; and influence, upon our language, customs, and legal powers, because the path from being known to being trusted is one that only our Constitution guards against. And who reads Constitutions, when one can read a pretty face or a handsome voice, or the odor of raw power, which when a celebrity exercise suit, is your power too. Or at least you think so, or hope so. that is why celebrities in power can do things that ordinary people cannot. Add that level of power to the formal powers that Congress has gradually given to the president, or acquiesced in his exercising, and you have moved far away from the Constitutional, Congress-empowered, skeptical of authority government envisioned by our forbears and which served us so well for most of our national existence.
I therefore propose that we elect an unimportant person to the presidency. Jerome Powell, the Federal Reserve chairman, fits the bill. He has expertise in the economy and can surround himself with foreign policy professionals while waiting for Congressional legislation to reach his desk. Another appropriate president would be Mike Pompeo, Secretary of State. Governors Evers of Wisconsin and Hogan of Maryland would do. Sally Yates and Rod Rozenstein seem appropriate — or someone whose name almost none of us know but who has managed department in the Federal bureaucracy and accepts as a given that he or she isn’t the policy maker but the policy executor or executrix. No, it isn’t likely to happen for 2020, but it should. We must never again have a president like Mr. Trump, nor a presidency suffering from several strains of political elephantiasis. And let said president be chosen by electors chosen by the States, electors who are appointed for their knowledge of the task and of the Constitution and who are humble enough to resist the poisons of celebrity, power, and entrustment.
— Mike Freedberg / Here and Sphere