In 1973, the late, great historian Arthur Schlesinger published The Imperial Presidency, charting the post-World War II expansion of presidential power and warning that the office had dangerously diverged from the parameters established by the Constitution and subsequent precedent. Donald
Trump’s election last year was greeted with horror (among his detractors) and glee (among his supporters) in no small measure because of the expectation that he would be able to use the powers of the presidency to enact sweeping and radical change.
Eight months into his term, little of that is in evidence. Imperial presidency? Hardly. More like the not-so-imperial presidency.
A year ago, concerns about how the vast powers of the presidency might be used and abused was top of mind. I argued more than a year ago that congressional inaction in the years after 2011 inadvertently allowed Barack Obama to expand his presidential reach as his administration scrambled to find creative, non-legislative ways to enact priorities ranging from environmental regulations to minimum wage parameters to drone warfare. Coming on the heels of the Bush administration’s expansive notion of executive power in foreign policy, it seemed that whoever won the 2016 election was poised to inherit the most potent set of executive powers in American history.
The story of the Trump administration so far, however, almost completely invalidates that view. The theoretical powers of the presidency may be vast, but the actual powers now appear to be far more constrained than they appeared. The question now is whether that is simply due to the ineptitude of the Trump administration or because the presidency was never quite as powerful as it appeared.
How that question is answered matters greatly. If it is the former, then there is the real prospect that Trump and his officials will figure out how to manage the government more effectively after a series of what can be charitably described as missteps and accurately described as incompetence. If the latter, then even if Trump et al learn how to function effectively and utilize the office competently, the result will still be numerous constraints on action that have always been there but appeared less obvious.
For now, we have clear evidence that the vaunted imperial presidency is neither that vaunted nor that imperial. Yes, the War Powers Act of 1973 and the congressional authorization for Afghanistan and Iraq passed in 2001 and 2002 have, intentionally or not, augmented the president’s ability to authorize the use of military force without needing to turn to Congress. And yes, those powers have proven easy to grant and difficult to withdraw – witness the recent failure of Sen. Rand Paul’s motion to the curtail the president’s ability to wage war.
That does not mean, however, that the individual occupying the Oval Office can just pick up a pen or phone and launch a war. For that, the buy-in of the military is required, as well as some consultation with congressional leaders. President Obama could have legally launched an attack on Syria in 2013, but he felt constrained from doing so by a skittish Congress. Trump’s 2017 missile lob on Syria was fully supported by Congress, and by the military of course, whereas his rhetoric on North Korea has not been. There was some breathless speculation that “Trump might get us into a nuclear war with North Korea,” but it takes multiple steps involving dozens of key players for that to happen; an erratic commander-in-chief pushing a midnight button makes for a good scare scenario, but as multiple experts have noted, its probability is somewhere between zero and zero.
The first months of the Trump presidency were consumed with a blizzard of executive orders and memoranda. Other than the travel ban, however, the bulk of these amounted to little more than statements of intent or press releases dressed up as action. Yes, one can and many have debated whether these orders—ranging from ordering the Environmental Protection Agency to review some of its regulations to mandating that new regulations be screened for excessive costs—changed the climate and hence affected behavior. But the orders themselves exist within the constraints of a legal and political framework that simply does not allow the president to order people to jump as high as he demands. The president is commander in chief of the armed forces, but he cannot order the federal bureaucracy simply to do as he demands or expect the bureaucracy to enact orders just ‘cause.
On immigration, Trump has been the opposite of Teddy Roosevelt: He has spoken loudly and carried a little stick. Deportations are below the levels during most of Obama’s presidency (and Obama, who spoke softly on immigration, presided over millions of deportations and removals, especially between 2009-2013), as are illegal border crossings. Yet Trump has not fundamentally altered the nature of immigration and enforcement. Why? Because he cannot. The president has some wiggle room to shift priorities, but immigration is ultimately a congressional matter, which is precisely where DACA—Obama’s program to defer the deportation of undocumented immigrants who arrived illegally in the U.S. as children—will be resolved.
Trade is shaping up as a test of how far the president’s powers extend and where they stop. Trump has been fulminating for months about NAFTA and has threatened to pull the United States out of the agreement if the current round of new negotiations with Canada and Mexico do not go as he hopes. Those threats (along with the rumored plan to withdraw from the U.S.-South Korea trade pact) have been dutifully reported but a few voices have appropriately piped up asking if, in fact, the president actually has the authority to pull out of a trade agreement. Unlike the decision to not join the Trans-Pacific Partnership, which had not been ratified by Congress, NAFTA has been subject to multiple acts of legislation over the past decades. That means a president’s unilateral power here is murky and contestable. Congress, including many Republicans, would almost certainly file suit against the presidency. In time, the Supreme Court would rule, and it might – given the current composition of the court – rule in the president’s favor. But that process, which will be drawn out and contested, would hardly represent imperial overreach; it would not be easy, and it would not be simple.
As both George W. Bush and Barack Obama demonstrated, a president surrounded by hundreds of capable staff in the White House and in various agencies can with considerable effort, focus and acumen create rules and exploit the grey area of power and legal authority: the use of torture and expanding electronic surveillance, for instance. But that takes skill; it takes time; it takes work. Even then, there are limits. By 2004, the Bush administration faced massive pushback from Congress and laws constraining what the president could do. Likewise with DACA—it was a creative use of presidential power, but it ultimately will need congressional buy-in, or would have faced being thrown out by the courts.
As for the current administration, there is little evidence the Trump administration knows how to do that work. And they will find even what they can do is a far cry from the bold action this president might imagine himself taking. A domestic terror attack or a North Korea that launches missiles on the U.S. or its allies would, of course, alter this picture. In such a crisis, the president likely would be able to exercise substantial powers, and likely would be supported by both public opinion, Congress and the courts for some period. There is a long precedent for that, extending to Abraham Lincoln during the Civil War. One might not like the idea of Trump exercising those powers, but he would hardly be allocating those to himself in a manner unprecedented or unsupported by law. It would be best, of course, if we do not have to test that theory.
For the moment, the Trump presidency is looking tame and pedestrian, far more fettered by processes, precedents and laws than the continued outcries against the administration or the continued adulation of supporters would have us believe.
Trump promised to restore muscle to the presidency and respect to America. Eight months in, he is a not-so-imperial president heading a government and a country that neither must nor will do his bidding, left to flail against democratic structures more resilient and far stronger than many of us suspected. The levees have held. So far.