Over the past decade pundits have written much about how to reduce the polarization and rancor in America, and now after the re-election of Donald Trump we’re sure to hear even more about civility and finding common ground. But there’s one solution to partisan political sectarianism that doesn’t require listening to your uncle’s opinions about drag queens: reducing the power and importance of the presidency in American life.
To be clear, the need to rein in the executive branch did not suddenly appear when Trump was elected. The best day to limit executive power was yesterday, but today will do just as well. The plain fact is that Trump will re-enter an Oval Office that is more powerful than it has ever been—the beneficiary of decades of accumulated privileges ceded to the executive branch by an apathetic Congress and an unserious Supreme Court.
The problem that Trump gleefully daydreams about using the state to retaliate against his many critics and political enemies is downstream of the problem that the Office of the President gives him the power to indulge his fantasies.
As Gene Healy, author of The Cult of the Presidency: America’s Dangerous Devotion to Executive Power, recently wrote for the Cato Institute, “The presidency itself has become a central fault line of polarization because the president, increasingly, has the power to reshape vast swaths of American life.”
The first priority should be limiting the damage caused by the Supreme Court ruling earlier this year in Trump v. U.S., which granted the president immunity from prosecution for nebulously defined “official acts.” A constitutional amendment putting the president in his correct place, under the rule of law like every other American, would be preferable, but that would require a two-thirds majority vote in both the House and Senate followed by ratification by three-fourths of the states, a level of bipartisan agreement that now only occurs in Aaron Sorkin’s private fantasies.
Democrats introduced the “No Kings Act” earlier this year to ostensibly check the Supreme Court, but the legislation is seriously flawed. It would not just declare that presidents are subject to criminal prosecution; it would strip jurisdiction from federal courts over matters of presidential immunity altogether—a nuclear solution that would open the door to more partisan meddling in the judiciary rather than fixing Congress’ own house.
A more realistic goal would be for Congress to claw back its war powers from the executive branch. Lawmakers have made some sorties in this direction over the past few years, such as passing bipartisan resolutions opposing U.S. involvement in Yemen and unauthorized aggression against Iran (both of which Trump vetoed). Congress should continue to insist that the president respect its power to authorize wars.
Likewise, Congress should pass legislation that would require presidential declarations of national emergency to terminate automatically after 30 days unless approved by Congress. The excesses of COVID-19 lockdowns and Trump’s various threats to deploy the military domestically should be more than enough to convince conservatives and liberals alike that the president should not have unilateral power to declare and indefinitely extend states of emergency.
In 2021, Sens. Mike Lee (R–Utah), Chris Murphy (D–Conn.), and Bernie Sanders (I–Vt.) introduced the National Security Powers Act, which would have strengthened congressional power over arms sales, military action taken under the War Powers Resolution, and declarations of national emergency. More legislation like this is needed. Unfortunately, Congress’ interest in its oversight powers shifts with the political winds, and there hasn’t been enough sustained bipartisan momentum to do anything about it.
Finally, strengthening transparency and public records laws would at least subject an imperial executive to public scrutiny. If we’re going to have a leviathan executive branch, we should know what it’s up to. The current Freedom of Information Act (FOIA) is useless for keeping tabs on the government, and there are no practical consequences for officials who flout the law. (If you’re a Reason subscriber, you can read in the newest issue about why the Freedom of Information Act should be abolished and replaced with proactive disclosure.)
But doing any of this would require de-escalation—an arms reduction treaty between the two major political parties—and there will be no political incentive to do so unless voters create it.
