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Tuesday, December 20, 2016

How Madison’s Constitution (contrary to Eric Posner) constrains President Trump

With the Trump Administration looming a few weeks away, it is only fair to say a word in praise of Madison and his fellow constitutional designers. The risks of a Trumpian tyranny are, I think, radically reduced by the constitutional ground rules set in place in 1789. Praising Madisonian ground rules as a limit on the Presidency, however, seems naïve to Eric Posner. Eric dismisses separation of powers as “a flimsy constraint” and instead cites “political” and “bureaucratic” safeguards that make a Trump coup unlikely. If Trump is unpopular and nominates tyrannical agency chiefs, then Eric notes that the Senate will dig in its heels. If an unpopular Trump gives tyrannical orders, then Eric notes that bureaucrats will dig in their heels -- and the courts, emboldened by the polls, will back them up. According to Eric, all of this heel-digging is somehow unrelated to the Madisonian ground rules: The limits are all “political” rather than “constitutional.”

I tend to agree with Eric that dire predictions about the Trumpian threat to our constitutional order are overblown. But Eric’s distinction between “constitutional” and “political” constraints (a distinction also touted in Executive Unbound, his 2010 book co-authored with Adrian Vermeule) strikes me as confusing and unhelpful. The constitutional ground rules define the political constraints. Saying that politics rather than “separation of powers” constrains the President is like saying that athletic difficulty, not the rules of football, constrain quarterbacks from scoring touchdowns. In football, the athletic difficulty is defined by the rules of the game. (Quarterbacks, for instance, must run or pass ten yards, not one yard, to get a first down). Likewise, the political capital needed to appoint an agency chief or fire a recalcitrant bureaucrat is likewise a function of those constitutional ground rules that Posner dismisses as “flimsy.”

To belabor the obvious, President Trump needs Senate approval of his nominations only because the Constitution says so. A latter-day Caesar would simply bypass that pesky Article II constraint by directly appointing his lieutenants. Likewise, the bureaucrats can dig in their heels to demand adequate procedures and reasons for Trump’s proposed regulations only because (1) the Civil Service laws bar Trump from summarily firing recalcitrant bureaucrats, (2) Trump lacks any dispensing or legislative powers to set aside the Civil Service laws or decree new ones, and (3) the courts will enforce those civil service laws. Of course, (2) and (3) are purely constitutional constraints designed by Madison & Co.

So enough of this pointless distinction between politics and law as constraints on the Presidency. The latter plainly depends on the former (and vice versa), and, contrary to conventional wisdom, the former are alive and well – thank goodness for that!

Posted by Rick Hills on December 20, 2016 at 02:02 PM | Permalink


Rick: I think one argument in defense of Eric's position is that these newer political constraints operate the way they do not as a result of intentional design, but as a byproduct of institutional arrangements established for other purposes. By contrast, the original Madisonian system of the separation of powers was justified in its creation as an effort to constrain executive branch officials. Eric simply argues that it does not do that job particularly well. But one is hard pressed to argue that the civil service reforms of the Pendleton Act of 1883 were put in place primarily to constrain the executive branch's growing power; on the contrary, the primary purpose of the Act was to end the spoils system. That is why it was supported by reformers both at the executive and legislative branches. Its goal was to inject more expertise and less politics in the federal civil service hiring process. One unintended byproduct of the reforms might be the creation of a powerful constituency of federal workers, who can sometimes thwart the executive branch's most ambitious policy goals. But it is hard to argue that these new constraints were intended by the original Madisonian system.

Posted by: Jide Nzelibe | Dec 22, 2016 11:10:08 AM

Hi Jide! Thanks for the comment.

Your comment actually deserves a whole new post for an adequate response. In particular, I disagree entirely with the following statement:

"... one is hard pressed to argue that the civil service reforms of the Pendleton Act of 1883 were put in place primarily to constrain the executive branch's growing power; on the contrary, the primary purpose of the Act was to end the spoils system."

Actually, I am not at all hard-pressed to argue that the Pendleton Act was a constitutional reform intended to curb presidential power and install the Whig theory of the Presidency. The spoils system was a manifestation of presidential power that a faction within the Republican Party (the Liberal Republicans led by Garfield and cheered on by E.L. Godkin and "half-breeds" led by Blaine) wanted to curb in the name of finally bringing about Henry Clay's view of the Presidency---- viz., the view that the President should merely "preside" over an apolitical administration of experts and talented, civic-minded gentlemen. Against this Whig theory, the Republican "stalwarts" called for the creation of a new Republican machine built on patronage supported by ethnic-based voting from northern Protestants and Southern freedmen -- a machine to match and beat the Democracy's machine based on Catholic voters a la Tammany.

That Whig theory of the presidency was 100% a theory that the executive derived too much power -- indeed, an unconstitutional quantity of power -- from his authority to hire and fire administrators. The Whigs, after all, derived their name from their opposition to "King Andrew" (Jackson). These Whigs and their Republican descendants attributed Jackson's allegedly monarchical powers directly to the spoils system --specifically, to Jackson's purge of Adams' supporters from the government and Jackson's firing of Duane for resisting the removal of specie from the Second Bank of the United States, acts that the Whigs regarded as not merely bad policy but flatly illegal.

In other words, civil service reform was intended as a constitutional reform to reinforce the Madisonian system.

Posted by: Rick Hills | Dec 23, 2016 7:42:27 AM

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