Aziz Huq Writes About Checks on Presidential Authority
Executive Hyperactivity
Russell Vought, architect of Project 2025 – the Heritage Foundation’s 900-page compendium of extreme conservative policies – and now head of the White House Office of Management and Budget, explained a couple of years ago what a new Republican administration following his plan would do. It would, he said, ‘throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years’, sloughing off ‘the scar tissue resulting from decades of bad cases and bad statesmen’. It would then ‘study carefully the words of the constitution’, and act accordingly. But the second Trump presidency privileges some parts of the constitution over others. The more than sixty executive orders made by the White House since Trump’s inauguration take their authority from Article II of the constitution, which establishes the executive branch of government and lays out the president’s powers and responsibilities.
The result isn’t a return to an 18th-century model of constitutional government. Rather, the executive orders systematically target and undermine the four principal sources of legal and political constraint on the presidency: the legislative and judicial branches of government; the civil service; civil society; and the electoral system. On the horizon is a legally unfettered behemoth capable of coercing organisations, negating rights, suppressing speech and reshaping the economy and society of the United States – all at the whim of the Oval Office. Despite ritual genuflection to the nation’s founding, there is no precedent for a constitutional shift of this magnitude in American history. A close precursor, however, can be found in the sweeping legal changes carried out by Fidesz when Viktor Orbán became prime minister of Hungary in 2010, which have enabled Orbán to fend off electoral challenges and retain a parliamentary supermajority.
In 1960, the political scientist Richard Neustadt wrote that American presidents were caught between the high expectations of the electorate and the meagre returns of an office restricted by Congress and the judiciary. Neustadt saw the president’s main tool as the ‘power to persuade’. The Trump administration turns this on its head: the two other branches of federal government, especially Congress, are seen as irrelevant because they have no power to direct or limit the president’s actions. The courts don’t seem likely to constrain the president’s powers either. In the Trumpian version of the constitution, the descriptions of Congress’s powers in Article I and of a national judiciary in Article III have in effect been deleted.
Read more at London Review of Books