At 250 years of age, our democracy faces serious challenges. Conditions favorable to an authoritarian-minded president like Donald Trump existed before he came on the scene and will continue after he’s gone. The key problem is the collapse of Congress as an independent, coordinate branch of government and effective check on presidential excess. This, in turn, results from the polarization of our politics and its capture by the far left and right. If our democracy is to endure, ordinary Americans must heed Ben Franklin’s warning, reclaim our politics, and restore functionality to Congress.
At our Nation’s 250th birthday and the Constitution’s 237th year in effect, what can be said about the state of our democracy and its future prospects?
The evolution of our government
For starters, governance within our democracy has evolved in many ways since the Nation’s founding. In fact, the balance of governmental power today is almost the inverse of the model envisioned by the founders.
The ascendancy of the federal government. The founders considered the individual states to be the primary source of governmental authority over American citizens with the federal government limited to specified (“enumerated”) powers. Over the course of our history and for various reasons, however, the federal government assumed the dominant position. It now holds pervasive influence over the states, individual citizens, and public and private entities through the direct exercise of legal authority and indirectly through massive spending programs that come with strings attached. Virtually all major contemporary policy issues, including those concerning domestic matters, are or eventually become federal issues.
The decline of Congress. Within the federal government, Article I of the Constitution established Congress as the first and arguably predominate branch and assigned it primary responsibility for setting federal policy through legislation. However, Congress has effectively demoted itself to the least important branch, abdicating much of its responsibility to the executive branch and even the courts. Federal policymaking now emanates primarily from the president and the vast executive branch bureaucracy with Congress reduced to a mainly reactive role.
The primacy of the president. Within the executive branch, power “belongs to the President alone,” as the Supreme Court puts it. The president always exercised plenary legal authority over most executive agencies. The Court recently extended this control to so-called independent regulatory agencies, once described as a “fourth branch” of the federal government.[1]It carved out a lone exception for the Federal Reserve Board, seemingly based on pragmatic rather than legal considerations.
The enhanced importance of the judiciary. The federal judiciary, which the founders considered the least significant branch, has assumed a considerably broader role than originally envisioned. This is due to the greatly expanded reach of the federal government and with it federal law, the need to resolve gaps in the law left by a derelict Congress, and sometimes activist judges both liberal and conservative.
In short, the dispersion of governmental authority that the founders anticipated has yielded to a much more centralized system in which most powers are concentrated in the federal government and within it the president.
The Trump effect
Given the federal government’s vast authorities and the president’s command over them, contemporary occupants of the White House begin to resemble, at least potentially, the kind of monarch we rejected 250 years ago. Even more so considering the sweeping king-like immunity from civil and criminal liability that the Supreme Court has conferred on them. The potential for an authoritarian president existed before Trump but was less obvious since none of his predecessors, whatever their faults and excesses, demonstrated his wholesale disregard for democratic values.
Trump distains the rule of law and democratic norms, claiming to be constrained only by his own “morality” and governs erratically by personal whim. He’s filled his administration with sycophants and enablers, many of whom apparently share his indifference to legal norms and even their own oaths of office and ethical obligations. He makes no effort to appeal beyond his base or to work with his political opposites. He unabashedly uses his office to enrich himself and his family and to indulge his vanity.
No doubt the founders would be greatly disappointed that someone who apparently sees himself as the second coming of King George III is president at the Nation’s 250th birthday. But they might not be shocked. James Madison presciently observed:
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
What surely would shock them is the breakdown in the internal controls–separation of powers and checks and balances– they carefully built into the Constitution to rein in a profoundly non-angelic character like Trump.
Congress has hit rock bottom. Republican majorities in the House and Senate allow and even encourage Trump to usurp their constitutional authorities in many areas including government organization, tariffs, war powers, and their most basic power of the purse.[2]See here and here. Critical oversight of the executive branch is wholly lacking. Incredibly, some in Congress actually help Trump undermine their own oversight authorities.[3]See here and here. Congress’s highest ranking official, House Speaker Mike Johnson, is essentially a Trump minion as Trump has insultingly but accurately noted.
With Congress AWOL and the executive branch stocked with yes-people, the federal judiciary is left as the only significant internal check on the president. However, courts are not well suited to serve as the first, much less only, line of defense against presidential excesses. They are necessarily reactive and limited to resolving justiciable disputes brought by parties with legal standing. Their role is particularly limited in matters relating to foreign affairs and military operations.
Political polarization
The ever-increasing polarization of our politics is a major factor in the demise of Congress as well as the general decline in our democracy. As a result of residence patterns, resurgent gerrymandering, and efforts of the two major parties to suppress third-party rivals, few congressional races remain competitive. Real competition is usually confined to the primaries where turnout is typically light and voting is dominated by the more partisan and ideologically extreme bases of each party. Candidates win primaries and then cruise through general elections by appealing to those base voters; they remain in office by continuing to play to the base in order to avoid being “primaried” in the future.
The once-popular notion that politics is the art of compromise has no place in this environment. Members of Congress survive by operating as loyal foot soldiers in Team Red or Team Blue rather than free-thinking legislators focused on the broader public interest and the interests of their constituencies as a whole. They have no incentive to work across the aisle or stray from their team’s many ideological red lines and every reason not to.
The result of this is frequent gridlock in times of divided government. Alternatively, when (as now) a single party holds the “trifecta” (control of the presidency and both houses of Congress), partisan steamrolling generally prevails. Majority party members function as an extension of the executive branch instead of a separate, co-equal body.
Polarization increasingly characterizes our public discourse beyond Congress as well. A healthy democracy depends on broadly shared agreement among the citizenry over core values along with reasoned, respectful debate about how best to achieve them. Both are in short supply today. Opposing ideological factions can’t agree on objective facts much less subjective values. Demonization of people who think differently and talking past each other substitute for reasoned debate.
Social media influencers exacerbate the problem as do traditional media outlets. Few are unbiased and even most media fact-checkers have an ideological bias. Unsurprisingly, public confidence in the media and indeed almost all institutions, public and private, is low and falling lower. The confidence ratings themselves often reflect sharp ideological divides.
Lessons learned courtesy of Trump
A silver lining to Trump’s presidency is that it provides a useful stress test for our democracy. Thankfully, democracy has not failed entirely. The federal judiciary countered some of Trump’s worst excesses. So has the public. Ordinary citizens pushed back against his extreme anti-immigration tactics and efforts to indict some of his perceived enemies. Strongly negative public opinion constrained him in other areas as well.
On the other hand, Trump’s presidency highlights two major vulnerabilities. One is the unreliability of Congress as an independent branch of government and check on the president especially during periods of one-party rule. The second is the ease with which a president—potentially any president—can weaponize and abuse the awesome regulatory, law-enforcement, military, and other resources at their disposal to serve their ends, whatever they may be. To paraphrase Trump, the health of our democracy depends to a great extent on the conscience of whoever happens to be president.
How to strengthen our democracy
The current distribution of power is unlikely to change fundamentally; the federal government will remain predominant as will the president at the head of it. Trump may turn out to be a uniquely awful president, but that’s hardly guaranteed given our debased politics. Hopefully, the courts will continue to be a significant check on presidential lawlessness. However, the judiciary is increasingly subject to political attacks from all sides that threaten to undermine its credibility and effectiveness.[4]See here, here, here, and here.
The key to shoring up our democracy is to bring Congress back to life. It’s unrealistic to expect Congress to regain its original primacy in the constitutional scheme, and perhaps it shouldn’t. But Congress must be restored to a functioning independent branch of government and meaningful check on presidential power regardless of which party is in control of what. Referencing Madison again, “there can be no liberty where the legislative and executive powers are united in the same person.”
This is certainly doable. Congress was reasonably functional not too long ago. It included many members from both parties who were serious legislators, not just knee-jerk partisans. Compromise and bipartisanship were considered virtues and positive job qualifications rather than firing offenses. Candidates regularly campaigned on their ability to work across party lines to achieve results. Remarkably (from today’s perspective), members sometimes rose above party loyalty at important moments. It was Republicans who ultimately forced the resignation of President Nixon.
The conditions seem favorable for a return to such Congresses. Our increasingly polarized two-party duopoly doesn’t reflect the views of most Americans. The public is much more ideologically diverse with only a minority fitting into either extreme. A majority of Americans hold moderate, pragmatic views; in fact, there is broad public consensus on many issues that divide the parties. Most Americans prefer collaboration, compromise, and problem-solving to ideological posturing.[5]See, e.g., here, here, and here. Unsurprisingly, most are estranged from both parties.
Furthermore, both parties are ripe for change. The Republican Party is little more than a cult of Trump and will have no clear identity once he leaves office. The Democratic Party has been searching for an identity for years. Either party stands to gain by moving closer to the values of most Americans.
It would not take a massive political groundswell to force major change. Despite the dearth of competitive individual elections, the Nation as a whole is closely divided and narrow majorities are the norm in both houses of Congress. Electing moderate, bipartisan-minded members to a relatively few more House and Senate seats could provide a critical mass necessary to hold the balance of power in each body, especially if they aligned with the relatively few like-minded members still there.
But the only sure means of accomplishing such change is for ordinary Americans to shake off their (understandable) frustration and cynicism and engage more actively in politics, particularly in primary elections, either to force the two parties closer to the center or to support independent candidates or third parties who better represent their values. In a democracy, citizens get the government they deserve. When asked what kind of a government the founders gave us, Benjamin Franklin famously replied “a republic, if you can keep it.” Everyday citizens need to step up now and reinvigorate our democracy if we are to keep it.
Spot on again Henry. I can think of two examples, one representing each party, where the President and Speaker of the house worked across the aisle to make Congress in particular, and the Federal government in general, to function efficiently: Ronald Reagan & Tip O’Neil, and Bill Clinton & Newt Gingrich. How can we get back to that??