The Supreme Court should have made members of the SEC subject to presidential removal, and this failure is the central mistake of Free Enterprise Fund.
The presidential nominating contests continue to befuddle prognosticators, but the consensus winner of the Syntactical Caucus of 2016 is already in. Whether Republican or Democrat, the next President will almost certainly display an unreasoning proclivity for the first person singular.
To be sure, candidates for the White House have been promising that which Presidents have neither the authority nor the power to deliver since the mansion’s cornerstone was laid on Pennsylvania Avenue. But in a sign of the presidential times, the rhetoric of candidates in both parties now reflects the unilateralism that has infected the office.
That the President’s job is to wield the executive authority of the regime—which is one function, and arguably not the most important or powerful, of government—is utterly lost on those who talk as though they were running for Lord of the Imperial City and embodiment of the volonté générale. To Google the name of a presidential candidate with the phrase “I will” attached is practically to break the machine. Searching for “I will urge Congress to”: not so much. As for “I will enforce the will of Congress”: please.
Consider Bernie Sanders, who, according to his website, will put “at least 13 million Americans to work by investing $1 trillion over five years” in infrastructure. What, personally? He will also, perhaps referring to those in his personal employ, “increas[e] the federal minimum wage from $7.25 to $15 an hour.”
Sanders will, moreover, “demand that the wealthy and large corporations pay their fair share in taxes,” which—demanding—would certainly be within his authority, except that he also promises to “create a progressive estate tax” and “enact a tax on Wall Street speculators who caused millions of Americans to lose their jobs, homes, and life savings.” Whether he means only those speculators who induced such losses or that all speculators induced such losses is unclear, but the President’s lack of “enacting” authority is not.
Ted Cruz often prefers the first person plural—“we” will—but it is the royal “we” that at some point became obligatory in politics, lending as it does a certain grandeur to those who deploy it even as it somehow simultaneously softens the egotism it plainly reflects. His website’s issues section leads with a promise to restore the Constitution, but a different aide must have written his immigration plan, according to which “I will complete the wall.” His jobs plan promises that President Cruz “will pass the REINS Act.”
For her part, Hillary Clinton “will reform mandatory minimum sentences for nonviolent drug offenses by cutting them in half” and “grant additional discretion to judges in applying mandatory minimum sentences,” which will surely please the judges but might rankle the Congress that actually holds that authority.
But the candidate taking all this, as all else, to 11 is Donald Trump. One suspects he has not read the Constitution he aspires to swear to uphold, except that when he does, he’ll be so good at the Constitution, your head will spin. If he had gotten to it by now, he would not so loosely employ such language as “I will make this country a total winner—I will Make America Great Again,” a formulation that places government at the center of society and The Donald at the center of government.
The most recent illustration of this was Trump’s promise to “get rid of gun-free zones on schools, and—you have to—and on military bases. My first day, it gets signed, okay?”
Well, okay, if Congress gives him something to sign with respect to schools. The myriad states with similar laws will not be presenting theirs to President Trump, but let’s cover separation of powers within the national government before we complicate it with relations between levels of government.
Given the sheer volume of unilateral acts he has pledged to undertake on his first day, Trump may need an additional executive order to suspend the 24-hour limitation on the time required for a rotation of the earth on its axis. And why not? He is, after all, personally going to “totally protect Israel,” “take care of it” with respect to homelessness, “make it so [college is] very affordable” and “make it really good for the student,” and “immediately”—not in the medium term—“solve the problems we have with health care.”
Trump styles himself the anti-Obama, but constitutionally, he is the ultimate Obama—as are his competitors. The unilateral vision of the office evident in his executive orders on immigration, guns, and other issues has prevailed in those who seek to succeed him. It is authority that is not going away. The only question is whether it will be employed to different ends.
This is no mystery. The suggestion of The Federalist—see 48 and 51 especially—is that once powers accrete to the office, the office will not easily relinquish them. It is a myth, to be sure, that Presidents are supposed to transform Publius’ empirical prediction into a normative commitment and thereby exploit every power whether constitutionally proper or not.
It is, however, a fact that they do, and that the last vestiges of Washingtonian restraint have now collapsed. The problem is that Congress does not do the same. Presidents share a consistent vision of the office’s power: They emphatically support expanding it.
Members of Congress are almost exclusively opportunistic, elevating policy preferences over institutional ones. Democrats who support executive power to shield illegal immigrants from deportation would be outraged by its exercise in building a wall, while Republicans who are angry about unilateral action on guns are less likely to caution a Trump or Cruz against excessive executive promises.
That one qualification for either the presidency or Congress might be a consistent and constitutionally defensible vision of the office’s authority is lost on aspirants to either. And that is because it is lost on the rest of us—another sign of the derangement of the regime, and an indication of where restoration must begin: with the first person singular.