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The Ryan “contretrumps” and the Separation of Powers

Now that Donald Trump is their presumptive nominee, elected officials within the Republican Party are faced with the difficult question of how they should respond. Some are saying it isn’t at all difficult—the people have spoken, by golly!—but I beg to differ. It’s a genuinely hard political question that ought to be framed by philosophical, institutional, and constitutional considerations.

By no means would I presume to dictate to GOP candidates on the ballot in 2016 what they should do as far as aligning with Trump or not. Those whose immediate interests are at stake will need to take the course that helps them continue to do the good we elected them to do. But I will insist that, however they assess the moods and opinions of the national and their local electorates, the aforementioned considerations should never be far from their minds.

The recent developments that point most clearly to these considerations are House Speaker Paul Ryan’s pointed refusal to endorse Trump, and the reported willingness of many Republican political leaders in my home state, Georgia, to embrace this new “standard-bearer.”

The Ryan “contretrumps” (if I may coin an expression) offers us some lessons. Ryan has confronted demands that he immediately bow to the outcome of the primary election process. We’ve heard all year that parties should respect election results, which has usually meant “hand the nomination to the frontrunner” even when an overwhelming majority of primary voters were still opting for someone else.

Indeed, parties should respect election results, above all in the general election. The mechanism for ascertaining the will of the people is the general election. That’s the result—mediated, to be sure, by the Electoral College—that most significantly registers the consent of the governed and confers legitimacy on the man or woman who enters the Oval Office at the end of the process. But how we get to the general election in November is, or at least ought to be, a different story. Political parties, as some have pointed out, are private organizations whose purpose is to nominate candidates (reflecting, more or less, the party’s views) who can win their elections.

In a nice turn of phrase, Speaker Ryan has reminded us that the party’s standard-bearer should bear the party’s standards. A primary election process with open primaries and candidate-centered campaigns may well serve as a gauge of a candidate’s ability to mobilize voters and master a wide array of important political techniques and technologies, but it doesn’t necessarily guarantee fidelity to the party’s central principles.

Parties indeed have to care what ‘the people” think; they have to win elections. But they’re not just about winning elections. To the degree that the two major political parties have pretty thoroughly “democratized” their nominating processes, they have let the means (“democracy”) dominate the end (devotion to a set of principles). Perhaps this experience will compel thoughtful political leaders to reconsider the nature of their organizations and the limits of democracy. And then perhaps they will seek to explain both these things to their fellow citizens.  That would be a blessing.

Ryan’s pronouncement also tells us something about the separation of powers. He serves right now as the Speaker of the House. Donald Trump may or may not be elected President. One is in one branch of the federal government, the other, potentially, in another branch. Congress and the presidency, given their different electoral bases and their different constitutional responsibilities, shouldn’t be expected to march in lockstep.

The past century has seen enormous growth in the power and influence of the presidency, to the detriment of limited and responsible government. What better time than now to reaffirm the independence and importance of the legislative branch and to insist upon a chastened understanding of the executive branch?

While the President does have some independent authority in foreign affairs and some prudential leeway in administering the programs Congress has created, he or she for the most part executes what the legislature legislates. Rather than simply getting with the Trump program, which seems to involve an inflated and not very thoughtful understanding of the responsibilities of government, Paul Ryan and his colleagues should seize this opportunity to make the case for limited government, under a U.S. Constitution that in fact accords the legislature primacy, at least to a modest degree, in policymaking.

Indeed, with a presumptive nominee who does not seem to reflect the considered consensus of the party and who is widely unpopular in the general electorate (even as his opponent is as well), what better political moment for a principled reassertion of the independence and primacy of Congress? Congressional elections are of course not just national but local. They are not intended to be simple referenda on national political issues and moods. The individuals sent to Congress as a result of these elections are meant thoughtfully to address and represent the particular views of their constituents, not to bow to “the will of the people” as expressed in a self-proclaimed presidential mandate. And Congress is supposed to be a deliberative body, which it can’t be when an activist occupant of 1600 Pennsylvania Avenue is bullying its members into rubber-stamping the presidential agenda.

Barack Obama has typically had his way with or around Congress. Congressional Republicans have resented this, while their Democratic colleagues have been perhaps only too happy to see their policy preferences achieved by hook or by crook. Perhaps now, regardless of the outcome of the presidential election, at least the Republicans will have a political incentive to reassert the constitutional and institutional prerogatives of Congress.

Let me turn now to a matter of local concern for me: the willingness of the leading Georgia Republicans to hitch their wagons to Trump’s star. I think I understand their political calculation.  They’re trying to catch a political wave, one that hadn’t yet crested back in March, when roughly two-thirds of Georgia Republican primary voters marked their ballots for someone other than Donald Trump. But someone should remind them that our political system is a federal system, which makes it possible in some areas for states to act independently of the federal government—more possible, to be sure, if the federal government is limited and chastened in the way I suggested above—and for state-level politics to develop and operate independently of what’s happening at the national level.

Taking this approach would, in a sense, be “countercultural,” because our media and our economy tend to emphasize the national at the expense of the local. But Republicans in this respect ought to go ahead and be countercultural. They ought to be faithful to their party’s historic principles, which would mean favoring local and state “diversity” over the homogenizing trends actively promoted by big business and big government. Given the recent behavior of Georgia’s GOP leaders, I’m not terribly hopeful, but you can’t fault me for trying.

I don’t know if anyone’s momentary political calculations would change if they took into account these philosophical, institutional, and constitutional considerations. But I believe doing so would actually promote the responsible deliberation that is essential for good government, something that has, unfortunately, been in short supply in Georgia and in the United States.

Reader Discussion

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on May 16, 2016 at 08:06:08 am

If Republicans wish to prevent Hillary Clinton from becoming President, they must support their party's nominee. It's that simple.

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Mark Pulliam
on May 16, 2016 at 10:43:50 am

Yep! And folks should get off their high-horse and stop proclaiming their superior *understanding* and their conservative "street creds".

You want Hillary, then don;t vote for The Trumpster.

You want another *wise Latina* on the court, then don't vote for Trumpster.

You want more DOJ mandates directing bathroom uses (what next, how many squares of paper to use), then don't vote for The Trumpster.

In short, NRO and others "Get over Yourselves" Bullets don't taste all that bad. Bite it!

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Image of gabe
gabe
on May 16, 2016 at 12:53:37 pm

Trump backed two GOP failures than soundly defeated sixteen or so wanna be-s. We just suffered eight years of disaster.

So, this life-long investor with all his failures and successes steps forward and says, "I can do this." One of the best quotes i read by him is to the effect: I pray in my closet but in public do the best job I am able. I think he can.

I will vote for him again. If I had a better idea, I'd suggest it.

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Image of Phil Beaver
Phil Beaver
on May 16, 2016 at 15:49:22 pm

This essay is a refreshing change from some of the diatribes that have appeared in this forum recently. I thank the author for addressing the issue of government, law and liberty instead attacking personalities.

My opinion about Ryan's stance regarding the president as the party's standard bearer is that it symbolizes the core problem of American government, which is that the party system has corrupted the noble designs of the Framers. They did not design the Constitution to operate as an instrument of a two party system. You have to use the right tool for the job, or you'll end up breaking your tool or the thing you're working on. Same with government. That's why it's broken.

A lot of Republican party loyalists want a presidential candidate who will conform to the party platform, which Trump does not do. That's one of the main reasons he's so popular. A lot of the public are sick and tired of business as usual, which means the party of the Republicans (as well as the Democrats).

I would prefer to see the offices of President and Senator be made non-partisan. That would mean a Constitutional Amendment as well as some operational changes.

A lot of folks right now would be all for it. To make such an amendment would require the support of the parties, which isn't going to happen since they pretty much are the government. Whoops! There's a little constitutional design flaw there.

The Constitution only works if it can be amended, and in this case the flaw acts to prevent its correction, which is a most serious problem. (And the approach of using the Article V convention of states is impractical due to problems with its design. The ratifiers are generally a lot more conservative that the proposers, which sets the bar of three-fourths majority way to high to allow ratification. Besides, the parties have great influence over the officers of the state governments as well as the federal.)

So, yeah, it's broken. You don't want to fix it, so g'head, walk into the voting booth and choose between Clinton and Trump, whine all you want before and after, just don't blame me for the outcome either way.

In case you haven't noticed, the candidates are getting worse as America ages, especially for the last dozen or so races. We can predict the trend will continue until eventually things break down completely.

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Scott Amorian
on May 16, 2016 at 19:22:12 pm

Scott:

I have included a link to an article at Nomocracy in Politics, a blog I visit from time to time.

While the link does not touch *directly* upon the above essay, I think you may find some value in it as it hints at a flaw in "classical liberalism" upon which our own polity is alleged to have been based. It is short but concise. Hope it has some value for you.

Take care
gabe
and yep, the candidates have been getting progressively (no pun intended) worse during my adult life. The sad thing is that it is our OWN fault.

here is link:

https://nomocracyinpolitics.com/2016/05/11/aristocratic-liberalism-by-bruce-frohnen/

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Image of gabe
gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.