Lawfare

Is Trump Changing the Executive Branch Forever?

When the president doesn’t even speak for his own White House, it is not business as usual.

ATLANTA, GA - APRIL 28:  President Donald Trump speaks at the NRA-ILA's Leadership Forum at the 146th NRA Annual Meetings & Exhibits on April 28, 2017 in Atlanta, Georgia. The convention is the largest annual gathering for the NRA's more than 5 million members. Trump is the first president to address the annual meetings since Ronald Reagan.  (Photo by Scott Olson/Getty Images)
ATLANTA, GA - APRIL 28: President Donald Trump speaks at the NRA-ILA's Leadership Forum at the 146th NRA Annual Meetings & Exhibits on April 28, 2017 in Atlanta, Georgia. The convention is the largest annual gathering for the NRA's more than 5 million members. Trump is the first president to address the annual meetings since Ronald Reagan. (Photo by Scott Olson/Getty Images)

This weekend, Secretary of State Rex Tillerson had a remarkable exchange on “Fox News Sunday” with host Chris Wallace:

Tillerson: I don’t believe anyone doubts the American people’s values or the commitment of the American government or the government’s agencies to advancing those values and defending those values.

Wallace: And the president’s values?

Tillerson: The president speaks for himself, Chris.

Wallace: Are you separating yourself from that, sir?

Tillerson: I’ve made my own comments as to our values as well in a speech I gave to the State Department this past week.

An anonymous Tillerson aide later spoke to CNN, ostensibly attempting to mute the impact of the secretary’s comments but, instead, only sharpening the point:

“The secretary and President have expressed different points of view. He isn’t being critical, but more so re-establishing without confusion what are known American values,” the aide said.

“The values start from the Constitution. The President’s job is to uphold those values. Did he do the best job ever responding to Charlottesville? Nope. But that doesn’t mean America changes.”

The aide added, “That is why the President speaks for himself because the Constitution speaks for the country.”

The exchanges are the latest, particularly dramatic example of the increasing tendency of executive officials to explicitly and publicly counter President Trump. Under ordinary conditions, this isn’t supposed to happen. As a technical matter, the president of the United States speaks not for himself alone, but for the entire executive branch. In fact, our constitutional structure holds that the president is the executive branch. Tillerson is, according to the traditional understanding of the executive, just a finger of Trump — who can direct him, fire him, and (with the advice and consent of the Senate) replace him. If Trump says demonstrators in Charlottesville are fine people and that many sides are at fault for the violence, who is Tillerson to claim otherwise? The open insubordination of Trump’s cabinet members is offensive to the very concept of the unitary executive.

Yet we all continue to welcome and praise his dissent. The reason is simple: Trump’s cabinet is generally more aligned with fundamental American values — including pluralism and tolerance — than is the president himself. Trump is unstable and mercurial. The cabinet is not. As the president continually expresses unreasoned, hateful, and downright bizarre beliefs, the most visible members of his administration have stepped up to reassure the public regarding Trump’s worst impulses: U.N. Ambassador Nikki Haley has repeatedly contradicted the president on national television on matters of foreign policy.  And video recently surfaced of Secretary of Defense James Mattis telling troops to “hold the line until our country gets back to understanding and respecting each other and showing it” in an address widely interpreted as a rebuke of President Trump.

As Jack Goldsmith put it a few weeks ago, after setting forth the remarkable catalog of senior officials defying President Trump:

What is most remarkable is the extent to which his senior officials act as if Trump were not the chief executive. Never has a president been so regularly ignored or contradicted by his own officials. I’m not talking about so-called ‘deep state’ bureaucrats. I’m talking about senior officials in the Justice Department and the military and intelligence and foreign affairs agencies. And they are not just ignoring or contradicting him in private. They are doing so in public for all the world to see.

Political scientist Dan Drezner has compiled a different list: situations in which “fellow Republicans on Capitol Hill in the cabinet or loyal treaty allies or — most often — [people] from within Trump’s own White House staff” describe managing him in terms reminiscent of a “toddler.”

Typically, the mechanism that ensures cohesion within the executive branch is the president’s ability to fire people. The most striking feature of the recent statements from within the administration — the reason that people feel so free to do what Tillerson did — is that they don’t seem to care if Trump fires them. They either don’t think he’ll do it, or they actually don’t mind if he does. After Trump seemingly called for police officers to rough up suspects during arrests, the acting head of the Drug Enforcement Administration, Chuck Rosenberg, circulated an email to agency staff condemning the remarks — an email that promptly leaked. Rosenberg did not display much concern for his continued employment prospects when he wrote that he had “an obligation to speak out when something is wrong.” Even initially stalwart members of the administration like Director of the National Economic Council Gary Cohn are now publicly breaking ranks to condemn Trump. For a supposed tough guy, Trump is having a lot of trouble keeping his people in line, because they are not afraid of him. As Goldsmith put it, “The President says and does things that his senior officials, when asked, cannot abide. And so they tell the truth, often with an awkward wince, or they ignore the President. And in response to this overt disrespect, President Trump does … nothing.”

The judiciary confronted the problems of a non-unitary executive in a particularly visible fashion in the recent litigation over the executive order on immigration — the so-called “travel ban.” In those cases, the courts faced repeated statements by Trump, both as a candidate and in tweets while president, that seemed at odds with the Justice Department’s in-court contentions that the order was not targeted at Muslims. The Justice Department took the position that the courts should ignore presidential statements. Some legal scholars have noted that this is not an entirely new phenomenon. Law professor Rebecca Ingber notes that the Justice Department also argued that President Barack Obama’s statements that the war in Afghanistan was over did not represent an official position in Guantanamo litigation. But if it’s not entirely new, it’s certainly mostly new — at least that the average presidential statement, not just the occasionally inconvenient one, is subject to countermanding by lower officials.

While many observers — including us — are relieved to see the executive branch serially defying the chief executive, there are drawbacks to the current erosion. We are witnessing, after all, not just a diminution of executive power or authorities — which some observers might welcome — but instead of the president’s ability to effectively wield those authorities he does have. People debate how much power the president should have, but the idea that he should able nimbly to wield the authorities within his power is a matter of relative consensus that has endured across changing administrations. One of the primary benefits of a unified executive branch is accountability. President Harry Truman famously kept a sign on his desk in the Oval Office which read “The buck stops here,” a phrase intended to signify that both ultimate power and ultimate responsibility rested with the president. When cabinet and subcabinet members routinely appear on Sunday talk shows to rebuff and refute the president’s statements, it becomes impossible to know whom to believe — and whom to hold accountable for decision-making.

The Trump administration is the least unitary executive in modern presidential history. The real question here is whether this is a feature of the Trump presidency or whether it heralds some alteration in the nature of the office.

There is good reason to think that the chaotic and non-unified nature of the current executive is a feature of Trump’s poor leadership alone and that the executive branch will snap back to form the moment there is a president who both provides coherent leadership and the will use the powers to appoint, to direct, and to fire to enforce discipline. Trump’s employees neither respect nor fear him. And when staffers openly defy the president, they leak with impunity. When that changes, the executive will look more normal.

But there’s another way to see Trump’s failure to control the executive branch — as an exaggerated creature of the more general structural shifts towards loss of centralized control over democratic institutions that used to function with central leadership. Trump was elected without the genuine support of his party, and he now governs without its support. The same features that put him in power limit his ability to control his government. Neither party has been able to govern Congress effectively and with public confidence in recent years. Is it possible that the party structure — and not just the nature of the executive branch — has played a bigger role in facilitating what Alexander Hamilton called “unity in the executive” than scholars have tended to notice when strong parties were the norm? Would a Bernie Sanders presidency, which would also constitute a hostile takeover of a major political party, have been able to run an executive branch with as much discipline as a Joe Biden presidency?

Trump is the very clearly the principle cause of the executive’s current dysfunction. The question is whether his outsized and flamboyant incompetence is masking a larger trend toward executive ungovernability — a trend of which his presidency is the principle symptom and with which the presidency will be contending long after he’s gone.

Photo credit: SCOTT OLSON/Getty Images

Benjamin Wittes is editor in chief of Lawfare.

Susan Hennessey is managing editor of Lawfare.

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