We are three weeks into Donald Trump’s presidency, and there are already “yuuuge” things happening. This is not to say that President Trump is doing huge things. It is the reaction to him that is so impressive. It displays the scope of the fight required to restore the Constitution.
While Trump’s policy prescriptions are controversial to the side that just lost the election, he is doing what people elected him to do as the chief executive officer and obeying the Constitution. None of this matters to Trump’s opponents. If they cannot win elections, they will use any power they can to stop him, no matter the cost.
Courts’ rulings against the immigration executive order are an example of this. So is the recent “political assassination” of Mike Flynn. The former was an unfortunate tactic we have seen before and could have predicted. The latter is something new. Both of these events show us what is at stake in our republic and the course of the fight that is ahead of us.
We Don’t Understand the Constitution Any More
The courts have been leading a coup against the Constitution for quite a while, although it has come in small doses over a long time. The rise of the Deep State to take out political opponents elected by the people is more dramatic and even more dangerous. While neither judges nor intelligence bureaucrats are elected, Congress can at least constrain the courts under the Constitution, the courts operate in the light of day, and individual rulings only have as much teeth as the Congress and the executive allow.
Intelligence bureaucrats have real teeth, however, and they can do serious damage to citizens and political opponents behind the scenes and before anyone notices. Despite this, members of Congress and legal activists argue that the president needs to go along to get along. He needs to work with the courts an avoid confronting the intelligence agencies, lest they fight back. Our modern sensibilities say government should be run like a business and the president should not use a “go-it-alone strategy for fast-tracking his agenda.”
But the president need not grovel before the courts nor work with Congress to do what the law already prescribes for him to do. Trump is not running into our nation’s systems of checks and balances. He is running into our nation’s current and unconstitutional understanding of government. As political scientist John Marini makes clear, “America has a problem, not because of our Constitution but because constitutionalism as a theoretical doctrine is no longer meaningful in our politics.”
Too many people understand our government to be made of “co-equal branches” that are “separate but equal.” But our branches of government are not co-equal, because they are not equal. Ironically, it was an overactive court that once pointed out that separate means “inherently unequal.” Granted, each branch has “a will of its own” and shares a “common commission” from the people so no one branch is over the others, but the branches have different and unequal powers that make them more or less dangerous to the people and the Constitution.
This confusion about the separation of powers comes from our progressive sensibilities. We separate powers to promote limited government and avoid tyranny. Progressives, however, do not seek limited government, and they have long held that the separation of powers is an outdated concept that hinders the government required for the modern age. This progressive understanding is destroying our republic.
Conservatives Need to Figure Out What’s Going On
The progressive notion of a “living Constitution” has made self-government very challenging for individuals for decades. Now we are seeing what some argued months ago: the very notion of republican government and our ability to choose who governs us may be lost. Those who call themselves “conservatives,” especially “constitutional conservatives,” need to wake up to this reality.
Admittedly, Trump is not the champion of the Constitution many of us would have liked. He does not talk about the Constitution much. Like Reagan, he only invokes the Constitution when it suits his purposes. Even so, he seems to be restoring it without saying the word constitution. Perhaps we need less talk about the Constitution and more action to restore it.
It may be hard for conservatives that believe Trump is nothing but a con-man or a blundering buffoon. As to the former, Trump actually appears to be as he says he is, a man of his word. To the latter, I don’t know how anyone could argue it after he has won so much. But even if one must believe Trump is stupid, he has chosen to fight alongside those who are clearly not and who have a deep thoughts about politics.
If this does not convince you, as a thought experiment try assuming President Trump is a serious, intentional, and disciplined man who understands what is going on. Plenty of people assume the opposite, so it cannot hurt. Constitutional conservatives need to understand there are three essential political fights required to restore the Constitution.
Dismantling the Administrative State
The first and most urgent political fight to restore the Constitution is the fight against the bureaucrats of the administrative state. Trump has inspired a growing “resistance” inside of the executive branch that is a threat to the Constitution. Call them “career civil servants” if you want, but bureaucrats are really progressives who despise the Constitution. They are schooled in and professionally raised in progressivism to work within a structure built by progressivism.
Progressives have infected every department of the executive branch, largely because it built most of the departments precisely so bureaucrats can run our lives for us. Progressivism is based on the claim that the modern world is so complex that men can no longer govern themselves. Instead of government “by the authority of the good people” of these United States, it is government by the authority of expertise.
Obviously strongly prefer normal democratic and constitutional politics. But if it comes to it, prefer the deep state to the Trump state.
— Bill Kristol (@BillKristol) February 14, 2017
This is why we often hear the charge of government being “politicized.” The governing that matters is the “administration” done by experts whom progressives want insulated from electoral politics. This separation of politics and administration leads to the common charge that non-experts who intrude upon the bureaucracy “politicize” things. Instead, representatives of the people should not forget their place and stick their noses in the world of the experts.
These expert bureaucrats are not elected, however, and their rule is contrary to the rule of law. Their offices meet James Madison’s “very definition of tyranny” in that “all powers, legislative, executive, and judiciary, [are] in the same hands” (as this cute video explains). As long as the administrative state and its army of experts hold this power, conservatives cannot make the claim that the Constitution rules. Moreover, so long as the experts think they can resist the people’s elected representatives, none of us can claim that the law rules and not men.
The resistance partly takes the form of petty tweets from weaker departments to stronger (though more anonymous and therefore more questionable) leaks from the bigger departments. Both of these efforts are meant to undermine the legitimacy of the duly elected president. They are signals from those within that bureaucrats are really in charge, not the president.
None of this should surprise us. It is well-known that “sometimes…executive agencies devote more attention to the protection of their own interests than to the policy agenda set by the president or the Congress.” One author spells it out very clearly:
Members of the…bureaucracy have several means by which they can resist presidential will…They can delay or undermine the execution of presidential directives, provide the president only with information and options that do not conflict with their interpretation of an issue, leak detail of a controversial or covert policy to Congress or the media, publicly oppose a policy, or resign in protest. The president may have the constitutional power to order an agency to carry out a particular task, but if that agency drags its feet or otherwise undermines implementation of the order, the president’s power can be diluted or even neutralized.
In effect, bureaucrats can dilute or neutralize the will of the people.
Given this bureaucratic culture, it should not surprise anyone that progressives now see open revolt as noble. Arguing that the Justice Department must be independent from elected officials, the Left is deeply concerned that the president might fire a disobedient executive officer. The “Monday Night Massacre” has made Sally Yates a martyr to the Left’s cause, functioning government be damned.
This is, of course, nonsense. Executive officers swear an oath “to support the Constitution.” While they must evaluate for themselves the legality of each order they are commanded to execute, they have only one option if they think an order is illegal: resign. To do anything else would be to supplant the Constitution and the rule of law with their own will.
Even worse, we are now seeing bureaucrats commit crimes to undermine the president’s advisors and anonymous groups of officials work to subvert the duly elected official of the executive branch from inside the government. Ironically, in what started under claims of trying to prevent foreign intelligence agencies from undermining our democracy now looks like American intelligence agencies undermining our democracy.
Restoring the Constitution over the administrative state’s bureaucrats is a necessary fight that all constitutional conservatives should relish. One major step toward winning it will require Congress to act to “make all federal employees fireable,” but even then victory is not assured. To defeat the administrative state, conservatives must also fight elsewhere.
Restraining an Out of Control Judiciary
Whether confronting the bureaucracy or implementing common-sense policies to conserve the nation, any conservative president will certainly face challenges in the courts. Trump’s popular immigration executive order inspired 13 separate challenges in less than a week, and the Left’s early perception of success has led to huge donations to the American Civil Liberties Union. This bodes poorly for constitutional government.
Moreover, the Left is pushing the idea that the courts have some sort of oversight over the use of executive power. Contra Myers v. United States, liberal jurists now seem to think that the court wielding executive power is part of our “nation’s system of checks and balances.”
This should not need to be explained, for judicial restraint used to be a hallmark of American conservatism. Even the Weekly Standard understood this once. And aggressively challenging the supremacy of the courts is as republican and as presidential as it gets. It is not clear why “constitutional warriors” like Sen. Ben Sasse think we need to deify the courts, the “independent” in independent judiciary means “thin-skinned and delicate,” or anyone should care about the court being demoralized. It might have something to do with why the Left is calling “conservatives” to fight against the president.
Thankfully, the Right has started to show some spiritedness in this regard again, even if much of it is coming from within the White House. They are even considering aggressive measures to check an “improper intermixture of powers” as they should. So long as courts reign supreme, ensconced in a protective cloud of hyper-veneration, constitutional conservatives cannot claim that the Constitution rules.
To restrain the court, however, will require another political fight.
Inspiring Congress to Act
This last item is probably the hardest, but it is the most necessary. Inspiring Congress to reclaim its power is an uphill fight to be sure. Congress has spent almost half a century building up a system that allows its members not to do their jobs. It has found a way to get rid of accountability while keeping a veneer of credibility.
As political scientist Morris Fiorina makes clear, Congress is motivated not only to protect the bureaucracy, but to enlarge it. The larger the bureaucracy, the more opportunity there is for individual congressmen to “build up credits” through constituency services. Moreover, by delegating actual legislative power to bureaucrats Congress gets credit for addressing problems while never actually having to solve them. Individual congressmen can campaign on these “accomplishments” and built up good feelings. All the while, Congress never acts and the people are never actually represented in government.
This might be why our congressmen today are so intimidated by an actual agenda that can actually be implemented. Still, they are going to have to do many things, some of them very big and unpleasant, to live up to their claim of being “constitutional conservatives.” There is some sign that some are waking to this call, but it is slight.
Can President Trump inspire the Congress? That is hard to know. If he cannot, it is unlikely that he will be able to fight the bureaucracy or the courts. He has at least one major tool that he will probably use: the people. Some people have compared Trump to Teddy Roosevelt, and this may be accurate—Trump seems to know how to use the bully pulpit. After all, he is an evil populist.
President Trump also some key backers. Sean Hannity has long made his feelings known, and he is not mincing words now. Likewise, independent voices like Matt Drudge are getting into the mix. Other historically spirited actors are also lending their voices. Finally, even some former Trump critics are getting involved.
Perhaps this will be enough, perhaps not. Fifty years of cronyism and fecklessness make for a hard mountain to climb. Only time will tell if Trump can inspire Congress to be something other than the “keystone of the Washington establishment.”
Keep the Scope of the Problem in Mind
Constitutional conservatives need to keep these three political fights above in mind. Each must be waged simultaneously to some extent, but all are essential. And all three are hard.
What remains is for constitutional conservatives who did not like Trump before to get over their animus. Principle and party are now one in the same. That it took a crude and aggressive fighter like Trump to win and begin this political battle is more an indictment of “movement conservatives” than anything else. Now constitutional conservatives must recognize that, whether they like it not, President Trump is their champion of the Constitution. They need to work alongside him accordingly.
While the tactical efforts to keep the Left’s heads spinning can consume those who want to criticize or defend Trump, these petty fights are just a means to an end, and conservatives should not be distracted. Likewise, they should not place too much emphasis on important but fleeting policy victories such as lowering taxes, repealing individual regulations, and even repealing Obamacare. Even the battle against nullification and sanctuary cities is secondary.
These things matter to real, flesh and blood people in tangible ways, but any victory will be impossible or temporary if conservatives do not restore the Constitution to its rightful place as the ruling law of our republic.