FIVE POINTS: You Can't Always Get What You Want
1. I agree with Jonathan Bernstein that Trump isn't causing a Constitutional crisis. In the first nine months of his presidency, many liberals have accused Trump of creating a full-blown constitutional crisis. Much of this was hyperbole, but it has reemerged strongly again this week after a series of events: Senator Corker warning that the White House was a mess and that Trump could lead us to World War III; various reports that the White House staff and national security apparatus spend their days "managing" Trump; Trump's recent Twitter outburst about taking away the licenses of major news networks; and reports of the military ignoring Trump on many policy issues.
The correct assessment of this is this is an extreme case, but our system of separated powers is working as intended. Jonathan Bernstein fills in the details here, and also here. I strongly suggest you read both items. I'd add just a few points:
There's a pervasive myth in the United States that the executive branch is more or less unitary. That is, people seem to believe that not only is the president the head of the executive branch, but also that he possesses dictatorial control over it and can achieve any executive action he wants with a single directive. This is just nonsense. As a legal matter, it is hotly debated whether the president has unitary authority within the executive branch; as a practical matter of bureaucratic power, it is plainly obvious that he has far, far less than total control. And this goes to the essence of Neustadt's Presidential Power. Early in the book, he recalls Truman's famous quip about what Eisenhower was in for. "He'll sit here and say, 'Do This! Do That!' And nothing will happen. Poor Ike. It won't be a bit like the Army. He'll find it very frustrating." Many people think about Neustadt in terms of presidential-congressional relations, but the most obvious application of the book is to the executive branch, where an unskilled president is going to be routinely rolled by smart and experienced bureaucrats and staff well-versed in the arts of influence and power.
Executive administration is *the* job of the president, and Trump has, so far, distinguished himself as pretty bad at it. There's a tendency for voters to see the president as the Leigslator-In-Chief due to the high-profile nature of the president's role in congressional lawmaking. But the primary function of the president is to manage the executive branch and, well, govern. But governing is a lot less visible and a lot harder to explain to people. Congress passes laws, but the implementation and execution of those laws provides the executive branch with incredible amounts of discretion, both by design and by the nature of language and law. The president effectively using that discretion is at the heart of both competent governance and presidential power. So far, Trump has shown no ability, or even willingness, to harness and channel this discretion. He has lagged badly in filling political post in the executive branch, his policy development on any number of executive issues (travel ban and immigration, health care, diplomacy) has been clumsy and ineffective, and his results have been predictable: a poorly run and unresponsive government. Yes, you can "win" through bad administration if it hurts your opponents favorite government programs. But that's a very low bar to success when your own party has positive programmatic goals of its own.
This is what a separation of powers struggle looks like. When they ponder separation of powers, too many people think of the president and Congress locked in some formal court battle over executive privilege or recess appointments. That stuff makes for high drama, but the real guts of separation of powers is a public battle over who has influence in the government over the outcomes of public policy. And at the heart of the battle is the role of the bureaucracy. After all, the executive departments are emphatically not answerable to the president alone; they were designed by Congress and have a primary duty to implement and execute the law, as created by Congress. When executive branch officials are seen "constraining" the president, one way to think about this is that their second master---the law as written by Congress and the Constitution---is winning the power struggle against the president. But most important is that none of this is neat or tidy. It was intended to be a struggle. If the president wishes to act impulsively or wildly or in ways that scare members of Congress or heads of agencies, he has only himself to blame when they respond by channeling power around him. It is precisely the sort of equilibrium the Framers intended when they designed such a system.
There are those who think our government is going off the rails under Trump. I strongly take the opposite view. Trump is taking on the institutions of government, and the institutions are winning. These aren't the flimsy parchment structures of a new post-dictatorship democracy; this is 240 years of processes, norms, and institutional values, setup in a feedback loop that channels power and provides incentives for presidents to work within the system. Trump can trash the institutions on Twitter, he can ignore them and try to govern like an authoritarian, and he can kick and scream when the bureaucracy is unresponsive. But that will only serve to weaken his power further. Trump isn't popular, his professional reputation in DC is awful, and he won't conform to the norms of governance. That he's having trouble exerting influence is not only a consequence of these things, it's exactly what is predicted. That's not the system failing, it's the system working.
2. Smarts are totally overrated in politics. Earlier this week, President Trump more or less challenged his Secretary of State, Rex Tillerson, to compare IQ test scores, after Tillerson reportedly called Trump a "moron." I can honestly say I have no idea who would win; despite all the ridicule, I suspect both men have above-average intelligence and differentiating between them is probably not possible from an armchair view. But if you set aside how ridiculous this whole thing is, there's one larger point that absolutely must be made: intelligence just isn't all that important in politics, and more intelligent politicians have little or no advantage over less intelligent politicians.
Obviously, a certain level of intelligence is necessary for political candidates; few, if any, voters are going to vote for a candidate who is illiterate or otherwise displays significantly well-below average intelligence. Ditto for selection to appointed executive posts in government. And the average politician---especially at the federal level---tends to have much more education than the average citizen. In that sense, there's a selection bias; the membership of Congress, the politicians in the executive branch, and the electoral challengers they will face are, on average, above-average in education and intelligence. So there may be some sort of threshold effect in play, where intelligence matters, but not once everyone is above a certain level.
But set that aside. What we're really interested in is whether intelligence is a useful and marketable skill in legislating and governing. And for the most part, the answer is no. George Plunkett nailed this over a century ago in Plunkett of Tammany Hall. He was highly critical of book learning, arguing that no matter how well-read you were or how smart you were, what really mattered was how many men you could get to follow you. Leadership. Show up at the precinct with 5 men who would follow you into hell, and you were light years ahead of, and far more useful than, someone with all the knowledge/intelligence in the world but no followers. For Plunkett, politics is a numbers game, and having the numbers is *way* more important than any knowledge. What little book knowledge you need can easily be learned within the system. Everything else? More or less useless.
And while Plunkett's views were aimed at working within a political machine in the late 19th century, they translate fairly well to most political situations. Leadership just isn't about raw intelligence; it's a skill/trait almost entirely its own. And intelligence can often be a hindrance to executing it. Especially on the electoral side. I can't tell you how many times I've seen intelligent politicians overthink political problems or try to deliver speeches that are way, way over their constituents' heads. Campaign managers are constantly trying to dumb-down their wonky candidates; the last thing you want to be known as in electoral politics is an "egghead." And political field craft often is a crass business. Dan Rostenkowski was fond of saying, "I may not be very smart, but I know how to fuck people. And that's what matters around here."
And I'll take Rosty any day over an egghead if I'm trying to accomplish something on the legislative side. He wasn't particularly smart, but he knew the people, the process, and the levers of power. Likewise, on the governing side, a president can easily surround himself with smart advisors, but it's tough to replace a lacking natural leader quality. Obama sometimes suffered from this; he would deliver one of those professorial type speeches, people in the chattering class would love it, and it would largely fall flat with the general audience. Less intelligent men---like FDR, or Lincoln, or Ike---who have the qualities of natural leaders or have developed the specific skills of political leadership tend to be more successful.
I've left out of this discussion one elephant in the room: the rising tide of anti-intellectualism within the GOP in the last several decades. That's a discussion for another time, but suffice it to say that it makes Trump's comments somewhat jarring if you've watched the trend. A party that once prided itself on being underpinned by East Coast establishment education and intellect has drifted very much toward a populism that not only doesn't actively court those conservatives, but is often outright hostile towards them. While political leadership doesn't correlate with intelligence, an outright anti-intelligence ideology can also be a dangerous undertaking for a party.
3. The president has an legislative agenda-setting problem. I wrote this up on Twitter on Wednesday, so I won't belabor the point, but one way a president can really help out his party on the legislative side is as the national agenda-setter for the legislative agenda. No one can command the media attention that the president can, and he has the ability to focus politics on particular public policy topics or problems. President Trump is obviously aware of this, and one of his undeniably great skills is generating media attention.
But he's having an awful hard time focusing people on tax reform. It's not complicated. If the president just makes public statements about one thing---and one thing only---on any given day, that's what the press will report. But for various reasons (he doesn't know policy, he doesn't really care about policy, he likes personal attention, he likes drama, etc.), President Trump just can't seem to stick to the time-honored "one message" strategy for politicians to cut through with what they want on the agenda. Instead, he disrupts the news cycles with bombastic public statements about banning news organizations or challenging his Secretary of State to an IQ test.
One the one hand, that leaves Congress to set the legislative agenda, which certainly has some theoretical benefits. But, in general, modern legislating is much, much easier if the power of the White House is purposefully trained on the hard work of legislating, rather than sitting on the sidelines. Even worse, when Trump does engage on the legislative side but not as the agenda-setter, he has a tendency to undercut or otherwise be in conflict with the congressionally-driven process. And while the absence of the president makes lawmaking more difficult, any negative participation he brings to the table is almost impossible to overcome.
4. You can't remake the judiciary in two years. No, really, you can't. Both conservatives disappointed with Trump and liberals who are wary about claims of his ineffectiveness often tell me things like "don't forget about the judges. Trump is reshaping the judiciary." And to a certain degree, they have a point. After all, Trump has successfully gotten a Supreme Court nominee confirmed, and the power to reshape the judiciary, especially when the president's party controls the Senate, is an important long-term ideological tool and under-appreciated presidential power.
But you can easily take this too far. Barring numerous Supreme Court vacancies, you really can't leave your mark on the federal judiciary very quickly. There are 890 Article III federal judges. So far, president Trump has had 7 confirmed. Seven. Part of this is that it takes time for the nomination/confirmation process to get going in the White House and the Senate; vetting potential nominees, filling out forms for the Judiciary Committee, holding hearings, getting sign-offs, and scheduling floor action all take time. Trump will almost certainly get more nominees confirmed next year. But the norms of the Senate process---even in their generally crumbling state---still do not allow rubber-stamping of tons of judges.
But reshaping the judiciary, in any practical sense, really takes two presidential terms. For one, there just aren't that many vacancies. Of the 179 appellate judges, there are only 21 vacancies right now. And some of those vacancies are judgeships that were already in the hands of conservative justices. Even if Trump were to fill *all* of those vacancies between now and January 2019, it would likely flip only 5% of the federal appellate bench from liberal to conservative. That's a large marginal effect, and certainly has consequences. But it's hardly revolutionary change.
This is, perhaps, another example of negative partisanship/ideology driving opinion. While Trump can slowly remake the judiciary, the thing that most satisfies conservatives (and disturbs liberals) is that controlling the presidency prevents the judiciary from becoming more liberal. It's not that Trump can rapidly make the judiciary significantly more conservative; it's that he can prevent it from becoming *any* more liberal. And that's a real opportunity cost. But there will be multiple federal elections between now and when the judiciary is fundamentally reshaped by the president. That's been the case for most of American history, and will be the case for the foreseeable future.
5. You should really be reading Dave Hopkins' blog. There are very few non-acquired, single-authored politics blogs that are worth reading anymore. One mighty exception to this is Honest Graft. It is consistently interesting, informative, and well-written. You can also follow Dave on Twitter, @DaveAHopkins.
See you next time (probably end of next week). Thanks for reading!