With the election now a virtual dead heat, conservative opponents to Donald Trump have never faced greater pressure to support him. Capitulation is needed, it is said, because the survival of the republic is at stake. If we allow Hillary Clinton to win the presidency, our constitutional system of government will be destroyed forevermore. Thus, we have no choice but to forbear.
This rhetoric is well-designed to prey upon the fears of conservatives who loathe Hillary Clinton, but it is not the language of American republicanism. Indeed, the fact that it has gained such traction on the right is a signal that many conservatives themselves have lost touch with the traditions of our constitutional system.
Put simply: This argument places the presidency at the center of American political life, which is a progressive innovation popularized by Woodrow Wilson and Theodore Roosevelt. The Framers rejected this implicitly, for most of their attention was spent perfecting the legislative branch, which was to be the primary repository of political power, as well as the tribune of the people.
The 20th-century progressives did not care for this. They felt that the country had developed a national spirit that the legislature—comprising representatives from parochial constituencies—simply could not embody. What was needed was an integration of the functions of government. In his days as an academic at Princeton, Wilson called for a parliamentary system, whereby the executive and legislative functions are fused. As president, he shifted course, arguing that an energetic executive could corral public opinion, and force the various agents of the government to coordinate with one another.
It is this framework, not the original vision in the Constitution, that requires us to view the 2016 presidential race with such alacrity. If we anti-Trump conservatives concede that the president is some sort of governmental superman, functioning as a king in all but name, then every four years the future of the republic must be at stake.
This is not to suggest that the republic is not in danger. Indeed, it is. Rather, I would argue that the “imperial presidency” is a symptom of the underlying malady—and that to cede the point to progressives on the centrality of the executive office is to thwart our own efforts to restore constitutional principles to preeminence.
The ailment, simply put, is this: Congress is a basket case. It refuses to exercise many of its sovereign responsibilities under the Constitution. Many of the tasks it retains it executes badly. Worst of all, the legislature itself has ceded these authorities. They were not taken from it, but granted, happily, of its own volition. A return to true constitutional government does not require us to elect a kingly president who vaguely sympathizes with the platform of the Republican party, but insisting that the legislature reconstitute itself under the Framers’ original vision.
Congress has four powers that it has abrogated. The first is the legislative function itself: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Yet both parties in Congress have, again and again, allowed executive agencies to exercise legislative functions.
Second, Congress holds the power of the purse: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” If Congress is of the opinion that the executive branch is not following the legislative will, it possesses the authority to withhold funds. But Congress, time and again, has ceded this authority to the executive branch—especially with entitlement programs that are funded “automatically” and agencies that receive revenues independent of congressional action.
Third, Congress has the power of oversight. The president is entitled to appoint “Ambassadors, other public Ministers and Consuls … which shall be established by Law.” By implication, this gives Congress the authority to watch the actions of the executive branch. Congress endeavors to do this, but it has allowed itself to become terribly outmatched. When the armed services are included, the executive branch employs some four million people. All told, Congress has a staff of less than 20,000 (excluding the Capitol Police). How can it properly exercise its supervisory function?
Fourth, Congress has vast authority over the courts. The Framers would be appalled by the notion that the courts are running roughshod over the will of the people, which is why they placed important powers in the hands of their representatives. Congress therefore has the right “[t]o constitute Tribunals inferior to the supreme Court,” as well as the size of the Supreme Court. Congress simply chooses not to make use of its substantial leverage over the judiciary.
For more than a hundred years, Congress has progressively given up these powers—handing them off to the judicial and executive branches, or letting them remain dormant, mostly as a matter of political expedience. In other words, members of Congress intuited that the people would be happy with them unloading their constitutional responsibilities on others, so they went ahead and did so.
If conservatives are really interested in restoring the constitutional harmony that the Framers envisioned in the summer of 1787, they should seek, above all, to return the legislative branch to its rightful stature. In Federalist 51, Madison envisions a grand clash between the branches, with each having “a will of its own.” Our essential constitutional problem is not that Obama has exceeded his proper grasp and become a putative monarch, or that Clinton intends to further this reach. It is that Congress is no longer in possession of a will to resist these encroachments. It certainly has the means to withstand such assaults, but it no longer possesses the motive.
And whose fault is that? It is the people’s alone. It is our fault! Congress remains the branch of the government most tied to the people, and time and again the people have sanctioned congressional self-abnegation. We have nobody to blame for this bind but ourselves. At every step along the way, Congress has been a party to the other branches raiding its constitutional prerogatives for themselves, and for generations we have responded by reelecting the capitulators by overwhelming margins.
The great mandate for constitutional conservatives is therefore to bring Congress back to decency. And, given the structure that the Framers bequeathed us, it borders on a non-sequitur to think that a presidential election is the proper starting place for reform. Yes, in most instances, a constitutionalist in the presidential office will be necessary, as the president will have to sign reforms that return to Congress the powers it once abdicated. But that is putting the cart ahead of the horse, for Congress currently has precious little interest in reclaiming its constitutional inheritance. Reform of the legislature begins with electing to it a majority that is actually interested in reform. Such a majority does not exist.
If my analysis is right—if indeed the central malady of the republic is our benighted legislature—then Trump is hardly preferable to Hillary Clinton. Does anybody really think he would allow the overawing reach of the executive branch to shrink, even one iota? Hardly. His entire adult life has been characterized by an all-consuming lust for power. In fact, the only scenario I can imagine in which he cedes power to the legislature is if, out of his incuriosity or ignorance, he is unaware of the implications of the laws that he signs. Other than that, the outcome of this election is bound to continue the imperial presidency. The only question is whether our next elective majesty has an R or a D at the end of His or Her royal name.
