The system of separation of powers is in real trouble. That’s the main conclusion to draw from President Donald Trump’s recent executive orders, attempting to circumvent Congress with actions that (he said) would provide some economic relief made necessary by the pandemic.
A central assumption behind the US Constitution no longer holds. The reason is that when members of Congress are asked to assess aggressive and possibly unlawful actions of a sitting president, they now ask one question: Is he a Democrat or a Republican?
If he’s a Republican, Republicans will complain of intolerable overreaching and an unconstitutional power grab, even if there’s no overreaching at all. If he’s a Democrat, Republicans will stand by silently or applaud, even if there’s palpable overreaching.
It’s probably right to say that Democrats show the same pattern, just in reverse. But because the outrage of Republican members over President Barack Obama’s unilateral actions is so recent, and because it is such a wild contrast with their general acquiescence in Trump’s unilateral actions, it’s fair to point to Republican hypocrisy in particular. (Disclosure: During the Obama administration, I served as administrator of the Office of Information and Regulatory Affairs.)
It wasn’t supposed to be this way. The framers of the constitution specifically sought to ensure that members of Congress would care about their institutional authority and work hard to protect it, no matter who occupied the White House.
In the Federalist No. 51, James Madison emphasized the importance of giving “those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” As he put it, “Ambition must be made to counteract ambition.”
Madison added, “The interest of the man must be connected with the constitutional rights of the place.” Those are the most important words in Madison’s argument. The goal was to ensure that members of Congress would have a strong motive to resist the encroachments of the president, and thus would work hard to defend their prerogatives, simply because of their personal connection to “the constitutional rights of the place.”
To be sure, the framers did not anticipate the rise of political parties, which greatly complicated the constitutional design soon after the constitution was ratified. Once parties became central to American politics, party loyalty, and not just institutional position, would inevitably matter.
Even so, members of Congress have often been jealous of their constitutional prerogatives, even if they generally liked the president and followed his lead. At key moments in American history, the constitutional design has worked.
Here’s an example. Both Republican and Democratic presidents have declined to try to control the policy decisions of independent regulatory commissions, such as the Federal Reserve Board and the Federal Communications Commission, because of a fear of a congressional outcry and potential reprisal -- including from members of their own parties.
Here’s another example. No president has tried to raise the debt limit unilaterally, even though there’s an argument that he has the authority to do so. A key reason has been a fear of Congress’ reaction.
One more example: On important occasions, presidents have declined to use military force in part for the same reason.
On these and other occasions, presidents have had a clear sense that partisan loyalty would not be enough to prevent fierce congressional disapproval. As they say, the value of the Sword of Damocles is not that it falls but that it hangs. In many cases, congressional self-protection, signaling the possibility of outcry and reprisal, has often acted as a Sword of Damocles, deterring presidential overreach.
Fast forward to 2020. For years, Republicans railed against what they saw as unacceptably unilateral action by Obama -- on climate change, immigration, gun rights and more. When Trump acts unilaterally, however, Republicans have been silent or meek, apparently on the theory that if a Republican president does it, it’s OK.
If Trump had known that Republicans in Congress would voice genuine alarm and retaliate by, for example, refusing to confirm judicial or executive branch nominees, there is a good chance that he would not have acted as he did.
In the current period, the general silence among congressional Republicans is especially striking because Trump’s unilateral actions, calling for federal expenditures, seem to strike directly at one of Congress’ central authorities: power over the purse.
True, Sen. Ben Sasse called Trump’s orders “unconstitutional slop.” But Sen. Lindsey Graham said only that he would “much prefer a congressional agreement.” And Sen. Lamar Alexander enthused that “the president is doing all he can to help workers, students and renters,” before adding, somewhat pathetically, that “Congress is the one who should be acting.”
So much for Madison’s suggestion that the personal interest of legislators would be “connected with the constitutional rights” of the legislature. At least for congressional Republicans, whether a president is overreaching, and encroaching on the powers of Congress, seems to turn on the answer to just one question: Is he one of us, or is he one of them?
As James Madison knew, that’s a dangerous state of affairs. It is unclear that anything can be done about it.
In the absence of congressional safeguards, it is all the more urgent for courts to insist on presidential compliance with the law. And as after Watergate, and the documented abuses of President Richard Nixon, the Trump administration needs to be followed by a period of national reckoning, in which Congress enacts a host of restrictions on presidential authority.
The good news is that if a Democrat is president, Republicans might even be willing to support them.
Cass R. Sunstein
Cass R. Sunstein is a Bloomberg Opinion columnist. -- Ed.