Is it considered rude to wish people a happy Presidents' Day when the person currently occupying the office is less qualified than the local stray dog who goes through your garbage? Either way, in addition to being a much-needed day off work, President's Day is a time to look at the history of presidential power, what it means, and how it's supposed to work, and there are certain lessons to be learned by people who may be uncertain about Civics 101. (If you're reading this, Donald, thank you for at least trying to research your job, and please stop having confidential meetings in public dining rooms.)
As it turns out, the office of the U.S. president is a rather confusing and amorphous beast, somewhere between a figurehead and an active political force. The devil is in the details, and I do not mean Putin, for once.
What a president does, and what he's not allowed to do, is a complicated question. Knowing the ins and outs of various bits of the role is particularly crucial now, as the current White House is operating a war of deafening proportions on our ability to pay focused critical attention. Block out Sean Spicer and let's get into three necessary elements of the president's role, all of which have a lot of relevance to the present moment.
The President Is Technically Sworn To Protect The Constitution, Not The People's Will
What has 28 thumbs and a very poor understanding of the US Constitution? pic.twitter.com/yWinBe6sod— Peter Miller (@TheCricketGeek) February 17, 2017
This is the big thing that many people seem to forget about the office of the president: the oath he takes when he puts his hands on the Bible and stands in front of the nation isn't actually to protect Americans, or the borders, or defend us from Martians. It's to uphold the Constitution. That's the entire point of the office. It's there in the oath of office: that he "will to the best of my ability, preserve, protect and defend the Constitution of the United States."
How this actually plays out has been a matter of some controversy, particularly because Obama, like other modern presidents, said his greatest duty was to the American people. Steven Aftergood of the Federation Of American Scientists pointed out that Obama was reframing the terms of his responsibility: the president may have powers, but ultimately what he's supposed to do, according to the rule of law, is always centered on that document.
Notoriously, presidents have occasionally decided that the Constitution isn't necessarily reflective of the people's best interests and decided to ignore it. Thomas Jefferson was one example; in 1910, he wrote that sometimes the “salus populi…, the laws of necessity, of self-preservation, of saving our country when in danger" had to take precedence over the rule of law, because on those occasions “a scrupulous adherence to written law, would be to lose the law itself…thus absurdly sacrificing the end to the means.”
If it comes down to a war between the Constitution and what the people want, in essence, the basis of the presidential office is to defer to the former. But some presidents in the past have ignored that, to greater or lesser success. PBS, in discussing Obama's use of the term, noted that a little bit of leeway is inherent in the oath itself: it notes the "constitutional obligations" of the president, but doesn't define how he does them, or what he has to define as threats to the Constitution and the rule of law. It's by nature kind of an ambiguous office.
The President's Role Is More Historically Ambiguous Than You Might Think
People can look at the presidency as a pretty cut-and-dried situation, but actually, the nature of the office and its particular powers has been subject to certain shifts over time, and it's important to keep track of those for an important reason: if you're harkening back to past presidents for your models of governance, you also need to understand how they understood their presidencies to work.
The idea of a presidency wasn't initially embraced by the people who wrote the Constitution (the electoral college was a last-minute wrangle by the founders to try and stop it from having too much power), and over the centuries it's see-sawed from figurehead to power and back again. Most of the technical powers of the president are laid out in the Constitution, from war declarations to issuing pardons and doing diplomatic work; but beyond the black-and-white has been rather a lot of grey.
We're currently in a stage where power has shifted away from Congress and towards the presidency, something that the Blue Ridge Journal characterizes as "drift:" a gradual movement without overt or official legislation. However, all presidencies are characterized by a tussle between the other seats of power and the president, because that's genuinely how it's supposed to work. What is not supposed to happen is the complete bypassing of the other agencies; the president has "executive power," but a lot of that is actually meant to be about executing laws decided by other people (ie Congress, or the Supreme Court), not necessarily inventing a legislative object from thin air without any consultation, cough cough.
The President Is Supposed To Face Some Gridlock
The American democratic system is supposed to jam up. That's the entire point; if one branch doesn't agree with another, they can cause havoc for one another instead of having the power to run roughshod over things. In 2015, Noah Feldman of Bloomberg, in an exceptionally forward-looking bit of journalism, linked the crisis of the time — Obama's series of gridlocks over the ACA and gun control — to what would happen if Trump became president. (Feldman is basically Cassandra from Greek myth.) He noted that limits on presidential power are an inherent part of the legislative agenda, regardless of what party holds the White House:
In other words, things are going the way they're supposed to go if Supreme Courts, or Congress, or other aspects of the government, point-blank refuse to agree with one another. It's not a product of Trump's rule, nor is it a conspiracy against him; it's just what happens. David Brooks also pointed out, at the New York Times, that Trump's strategy of isolating himself will create more deadlocks, not fewer:
This is the way things are supposed to work: not that the president is utterly incompetent (that's unprecedented), but that his power doesn't necessarily mean everybody else has to follow his lead.
"But what about vetoes?" you might ask. They're more complex things than you might think. For one, there are two types. One is the absolute version, and the other is the kind that's qualified: basically the president boots the proposal back to Congress, and they have to get two-thirds approval in both Houses to overturn his decision to shut it down. We've had a pretty low incidence of absolute vetoes for the past few presidencies; the last one was Bill Clinton's, and he only did one during his entire presidency. (The last veto-happy president was Eisenhower, who put through 108 absolutes.) Congressional overrides do happen, too. Trump may well bring the culture of the veto back, but don't expect people to sit still while he attempts to flex absolute power.