It is not a good proposal.
When we teach kids about the structure of our government, we typically emphasize the legislative, executive and judicial branches. But our government also has a fourth locus of power in numerous agencies that make rules that shape our lives. Think of the Federal Reserve, the Environmental Protection Agency, the Federal Trade Commission. These agencies are created by our legislature and operate under the supervision of the executive branch, but with varying degrees of formal independence. Trump proposes to assimilate those rulemaking agencies fully within the executive branch as units responsible for carrying out the agenda of the president. He also proposes to change the rules for civil service appointments so that appointees can be fired for not carrying out the presidential agenda.
As someone who has been an executive of a university division and run for governor, I understand the instinct that administrative agencies should fully report to the executive, and that the executive should have agenda-setting, hiring and firing powers, just like the executive in a business does. But that instinct is wrong when it comes to protecting freedom.
As was the case in the 2016 election with pinpointing challenges from globalization, the Trump campaign has put its finger on a real issue. And once again, it has gotten the answer wrong.
Let’s return to our constitutional architecture: The first proposition of the design of our government is that the legislature should make the rules. But this design element has substantially eroded. A key renovation job that we face is to decide what to do about that erosion. The Trump campaign offers this: Don’t worry. We’re good with that erosion. We’ll just take over all that rulemaking authority in the executive branch.
But how has the idea that the legislature should make the rules eroded?
First, the Founders made a mistake. They thought the national legislature, not the president, would be the agenda-setting body for the country. “The President is to have power … to recommend to the consideration of Congress such measures as he shall judge necessary and expedient,” Alexander Hamilton wrote in the Federalist Papers. They thought, in other words, that the president’s job was merely to recommend an agenda, not to take office with a so-called mandate and enact an agenda.
But the only election process that drives a genuinely national conversation about U.S. interests is the one that determines who is president. The Founders missed the significance of that. Senate and House elections generally prompt only conversations limited to the communities of the relevant states. Consequently, the president is the only elected official who must necessarily speak to the whole public about a national agenda. No one can run for president by proposing that they will politely suggest some things to Congress and then wait patiently to see what Congress wants them to execute.
Modern presidents, in an effort to keep the promises they make while campaigning, and facing intractable Congresses, have simply determined to execute via executive order the agenda for which they think they have a mandate. The number of executive orders passed during 20th- and 21st-century presidencies was much greater than during the period of the founding and 19th century, with a high point during the progressive era of the early 20th century and a peak at Franklin D. Roosevelt.
In recent years, the assumption of a mandate has been a mistake made by presidents of both parties. They rarely have more than a bare majority behind their agenda — and often less than that. Fifty percent plus one is not a mandate.
That’s the first story about the erosion of legislative power. Presidents, for natural reasons, want to develop and execute an agenda. They fool themselves into thinking they have a mandate, and then they use executive orders to do what they can no longer expect to accomplish through partnership with the legislature.
Second, governance got a lot more complicated over the course of the 20th century, as the population exploded and technological, economic and social transformations delivered ever-increasing levels of complexity to policymaking.
We have wanted rules to govern monetary policy and rules to govern environmental protection and rules to govern the telecommunications industry and on and on. Congress came to understand that it could not directly legislate in all these areas. Too much expertise was needed to make good rules. Too many diverse contexts had to be taken into account. So Congress set up agencies populated with experts to handle these decisions: the Fed, the EPA, the FTC and so on. Rather than keeping the rulemaking in the legislative branch, Congress combined the rulemaking and enforcement functions in independent agencies with varying degrees of independence, and it placed these agencies in the executive branch. In so doing, Congress undermined its own legislative authority.
It is reasonable to complain that those independent agencies now make rules that significantly constrain our lives without having been elected to do so. But the Trump campaign proposes to solve this problem by thanking Congress for the gift of agencies with legislative power and fully digesting that legislative power within the executive branch.
This would tip us in the direction of autocracy. It’s the wrong answer to a real problem.
Here’s the fundamental issue: You don’t want the person who makes the rules also to be the person who gets to enforce the rules. When one person gets to do both things, freedom ends. If one person makes the rules, and another person enforces them, then if the person who enforces them starts to do so in an arbitrary way, the person who makes the rules can complain and seek redress. Without that separation (and the additional element of a separate judicial branch), grounds for correction disappear.
On the soccer field, refereeing works because the rules have already been made by someone else. If the ref could also change the rules as the game proceeded, the game would become unplayable.
Given the growth of the administrative state, a host of legislative powers now exist that are not meaningfully subject to democratic accountability. As my colleague Ruth Marcus has recently pointed out, the Supreme Court shares this concern. But the right solution is not to allow the executive to gobble up all those powers. It’s to move those powers back to the legislature.
We can do this by requiring Congress to take responsibility for providing the independent agencies with directional charges on a routine basis. Take the Fed as an example. As scholar Leah Downey has argued, Congress should be regularly reviewing the charter of the Federal Reserve (say, every 20 years, as in the original founding legislation), and it should be using the occasion of its annual review of the Fed for substantive direction-setting for the priorities of that body. And it should communicate that direction setting to the public.
We do need democracy renovation to address emaciated legislative power and bloated executive power. But all the Trump campaign can offer is the imperial ethos of Mar-a-Lago. This will not be good for us.
The words “democratic” and “republican,” stripped of their roles as party labels, are old words in the tradition of political philosophy and carry some shared values. They mean humble. They mean spare. They mean prioritizing the honor and will of the people over the prerogatives of the leader. Since the legislature gives voice to the will of the people, these words mean having an executive who partners with the legislature, not one who dominates it.
As Hamilton put it in the 67th Federalist Paper, the Founders wanted to avoid a president “shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train … seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty.”
They wanted to avoid a Mar-a-Lago presidency.
Like them, I’d rather have a constitutional democracy. The White House is as grand as we need. The Capitol is bigger than the White House for a reason. We don’t need a Mar-a-Lago renovation. But keeping the White House as our anchor means renovating so that the legislature gets its powers back and functions well enough to be worthy of having them. The path to a healthy executive branch is through a healthier Congress.
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