By William Howell
The election of Donald Trump clearly marks a break with, if not a repudiation, of the past. But even in these white-knuckle days of his early presidency, we also can discern familiar features of executive power and the politics of unilateral action. Not everything about Trump is new. And if we want to get serious about fashioning a response, whether in support or opposition, we must resist the temptation to treat Trump as purely an aberration.
Let’s begin with the recurrent, if not the customary. Trump is hardly the first president to traffic in nativist appeals, to call for a reordering of national priorities, or to renounce, if only rhetorically, the powers and privileges of a self-interested class of political experts in favor of a supposedly forgotten people. Trump is following a populist path previously trodden by the likes of Andrew Jackson, Williams Jennings Bryan, George Wallace, and Pat Buchanan.
Nor is Trump the first president to launch his presidency with a flurry of policy initiatives. Nearly all modern presidents go out of their way to project an image of energy and command the moment they move into the White House. And rather than work directly with Congress, many of them, like Trump, choose to hit the ground running through administrative fiat rather than legislative engagement.
To be sure, Trump failed to deliver on his campaign promise to overturn Obamacare on Day One. But he did direct the federal bureaucracy to ease up on its implementation until Congress gets around to dismantling it. He then put a freeze on regulations currently under consideration and established new protocols that require federal agencies drop two old regulations for every new one they adopt. Trump accelerated the permit process for private companies building the Keystone Pipeline. He reinstated a ban on funding for international family planning agencies that provide information about abortion services. He formally withdrew from the Trans-Pacific Partnership. He reconstituted the organization and membership of the National Security Council. He instituted a ban on refugees and immigrants coming into the country. In just the first two weeks of his presidency, he did all this and more.
To advance this expansive agenda, Trump drew upon the full arsenal of unilateral directives available to presidents. He issued executive orders, proclamations, national security directives, and memoranda. And like his predecessors, he fabricated altogether new power tools—in this instance, National Security Presidential Memoranda, for which the Pentagon appears to be the primary audience.
Trump also isn’t the first president to invite controversy through unilateral action. Harry Truman desegregated the military, Bill Clinton extended federal protections to hundreds of millions of acres of public lands, George W. Bush directed substantial federal funds to religious organizations, and Barack Obama imposed all sorts of new environmental regulations at times when legislative action on these matters was altogether unthinkable.
We also have witnessed before the kinds of institutional checks that now frustrate Trump. Indeed, they are the essential elements of any theory of unilateral action. Presidents push outward just as far as they can, the adjoining branches of government offer variable amounts of resistance, and in the exchange, the reach and meaning of presidential powers are defined.
But not all is familiar. This go-around, the fallout of unilateral action is a good deal louder and more disruptive than at any other time in modern American history. Never before have so many protests been voiced, so much opposition rallied, so much confusion sowed in the aftermath of orders issued this early in a presidential term.
Just hours after Trump issued his immigration ban, U.S. District Judge Ann Donnelly, a Barak Obama appointee, intervened and issued a temporary stay. A week later, U.S. District Judge James Robart, who George W. Bush appointed to the bench, expanded the stay nationwide. In the intervening days, impromptu protests and legal clinics sprouted up in airports across the nation. Acting Attorney General Sally Yates refused to defend the order in court, an act of defiance for which she was promptly fired. Members of Trump’s own administration professed to have learned about the order through the media. Within the State Department, over 1,000 people signed a petition against Trump’s agenda. This past Saturday, then, the Department of Homeland Security announced that it was suspending all efforts to enforce the immigration ban.
This is not normal. Far from it. In the wake of most executive orders, broad acquiescence, if not perfect silence, typically sets in. Past presidents, after all, have made a point of vetting their orders with policy experts, ensuring their legality with the Office of Legal Counsel, conferring with key partners and adversaries, and then adjusting accordingly. This advance work has not been in the service of governing cooperatively or ceding ground to political opponents. Rather, it has enabled these presidents to discern exactly how far they can push policy without being subsequently overturned, and then prepare those individuals charged with defending and implementing these orders.
What, then, are we to make of the chaos and fury born of Trump’s early actions?
One line of thinking points toward an administration wholly unaware of the president’s position in our system of separated powers and entirely insensitive to the costs of bureaucratic resistance, judicial intervention, and mass protest. The tumult of these past two weeks, by this accounting, reflects poorly on an inexperienced and impetuous man with little regard for the rules of procedure and governing norms of American political institutions.
We have before us plenty of evidence to support this line of reasoning. But there are other possibilities to consider. Maybe Trump (and those who advise him) are quite deliberately trying to escalate the fight with his adversaries.
Alternatively, Trump may be trying to lure his opponents into a pitched fight that will do lasting damage to their reputations. A press that misreports—as it did in claiming that Trump removed a bust of Martin Luther King from the Oval office—and a protest that turns violent—as occurred in Berkeley, CA—provide all sorts of fodder for a president bent on discrediting the mainstream media and restoring law and order to the country.
Instead, Trump may be playing to a base that cares less about policy than about waging an existential war on Washington. The dustups caused by these unilateral directives may not productively change policy, but in the eyes of Trump’s supporters, they may serve as proof positive that their man is righteously renouncing the discredited rules of a broken political system.
We don’t know what exactly Trump is up to. It’s possible that we’re witnessing gross incompetence. Alternatively, we may also be seeing the initial gambit in a new and larger political struggle.
In either case, the spectacle is new, and its stakes are enormous.