In Barack Obama’s second term, with his legislative agenda dead in a Republican-controlled Congress, the president turned to executive unilateralism on an innovative scale. On climate regulation and health care he used the presidential pen to pursue policies denied him by Congress, and on immigration he made a more dramatic leap — claiming a power he himself had previously abjured, and offering a provisional legal status to about half the illegal-immigrant population.
At the time I called this “caesarism” — an attempt to arrogate to the imperial presidency the kind of power over domestic policy that it already claims over foreign and military affairs. And because the decay of republics is an iterative process, where each faction builds on the norm-breaking of its rivals, it was fairly obvious — well, to me, if not to his supporters — that Obama’s caesarism helped stoke the caudillo appeal of Donald Trump, who promised a cruder version of the same impatient executive ambition.
Now, that caudillo spirit is taking legal form in Trump’s most serious power grab to date: the attempt to use a “national emergency” declaration — a power whose chronic abuse by presidents Congress has never bestirred itself to check — to build the border fencing that the Democratic Party and his own political impotence have denied him.
On the merits, anyone who opposed Obama’s moves should oppose this one as well. The scale of the policy change is smaller, but the defiance of Congress is more overt; the legal foundation might be slightly firmer (as Jell-O is slightly firmer than a pudding) but the bad faith involved in the “emergency” claim is more extreme.
And in general, serious conservatives are opposing Trump. Vox co-founder Matthew Yglesias recently snarked about right-wing pundits who got “overheated about ‘Caesarism’ and ‘caudillos’” in the Obama era, mentioning myself and National Review editor Rich Lowry as examples. But Lowry has written sharply against the emergency declaration, and I’ll happily endorse his point: If Obama was abusing his powers, then clearly so is Trump.
But in terms of the general lure of presidential rule, the general declension of republican norms into imperial habits, I also think Trump’s caudillo act is substantially less dangerous than what his predecessors did.
Here I differ not only from liberals who misremember Obama as a punctilious norm-respecter, but also from those conservatives fretting that Trump is establishing a precedent for a future liberal president to impose a Green New Deal by fiat. Not that they won’t be so tempted — but I just can’t imagine anyone looking at the political train wreck of Trump’s unilateralism and seeing a precedent worth invoking.
For presidential power to meaningfully expand, it is not enough for a president to simply make a power grab. That grab needs to unite his party (ideally it would also divide the opposition), it needs to be cloaked in enough piety and deniability to find support from would-be referees, it needs to appear to be politically successful, and finally it needs to be ratified by the other branches of government, if only by their inaction.
This mostly happened with post-9/11 war powers claimed by George W Bush’s administration: There was pushback and resistance, but many Democrats went along, Bush won re-election, and much of his war-on-terror architecture was adopted and expanded by the Obama administration.
Obama’s attempt to play Caesar in domestic policy had more mixed results, since the immigration power grab was tied up by the courts until Trump’s election rendered some of it a dead letter. But Obama at least persuaded Democrats and the media to go along with his caesarism, and he established precedents that a President Hillary Clinton would have undoubtedly embraced.
With Trump, though, the only clear precedent being set is one of deplorable incompetence. He’s taking unpopular action that divides his party and unites the opposition, he’s doing so with a combination of brazen hypocrisy and nonsense rhetoric that makes the power grab impossible to cloak, he’s guaranteeing himself an extended legal battle — and he isn’t even accomplishing any obvious goal (there’s a reason real immigration restrictionists are against this plan) except the personal one of saving a tiny bit of face.
This spectacle will not prevent some future president from abusing an emergency declaration more effectively. But the idea that Trump’s grab enables future abuses more than the moves that Bush and Obama made is extremely dubious. If anything, precisely because his contempt for constitutional limits is so naked and his incompetence so stark, Trump has (modestly, modestly) weakened the imperial presidency by generating somewhat more pushback than his predecessors.
So the emergency declaration is not itself a constitutional emergency. Rather, as often in the Trump presidency, it’s a moment that illuminates how a more dangerous would-be autocrat might someday act. It’s a weird foretaste, not the main event. A warning, not a crisis. A clownish interlude in the republic’s decline, not the Rubicon itself.
© 2019 New York Times News Service