One of the problems with a two party system is the discontent of the losing party. Worse yet is that each majority party attempts to empower its own executive whenever possible. Bad blood in Congress, and increased executive power can lead to revenge seeking by the White House down the road. My friend Gene Healy is an expert on the expanded powers of the presidency, and literally wrote the book on the subject which sits in my desk, The Cult of the Presidency: America’s Dangerous Devotion to Executive Power. Healy writes in The American Conservative that the power of the presidency never seems to get any smaller, and this administration is no different. He writes:
Still, as then-law professor, now Supreme Court Justice, Elena Kagan noted in a 2001 article “Presidential Administration,” modern presidents have accrued significant power over regulatory policy, “making the regulatory activity of the executive branch agencies more and more an extension of the President’s own policy and political agenda.” The Trump administration used that authority aggressively in its first year, tapping the brakes on “significant” new regulations (costing $100 million or more), undoing 15 Obama-era rules via the Congressional Review Act, and restricting the practice of making law via “guidance” letters. If the results fall far short of Steve Bannon’s promised “deconstruction of the administrative state,” they’re still welcome changes for conservatives and libertarians.
But what goes down can come back up, and rise to new heights. As Kagan noted, the president’s administrative authority works just as well to push “a distinctly activist and pro-regulatory agenda.” Even when one approves of what the president does with the stroke of a pen, the fact that so much power has been concentrated in the presidency undermines the rule of law. One of Hamilton’s main arguments in the Federalist for “energy in the executive” was that it would be “essential to the steady administration of the laws.” In the modern era, it has had the opposite effect: the “law” can change radically from administration to administration, depending on the policy preferences of the president. You may “win” or “lose” every four to eight years, depending on whether the president shares your preferences, but at some point it’s worth asking: is this any way to govern a country?
Handwringing about an unpopular president weakening the executive branch is one of the hoariest—and dumbest—clichés in presidential punditry. Whether it’s Bill Clinton, George W. Bush, or Barack Obama, every time a president’s approval ratings tank, we get a flurry of think pieces about the “Incredible Shrinking Presidency.” Trump, massively unpopular to begin with, has had more than his share.
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