[Eric Posner] Long live the imperial presidency?

One of the striking contrasts between the Trump and Biden administrations is the debate about whether the presidency has achieved more power than is consistent with the public good. Donald Trump’s term in office was accompanied by a drumbeat of commentaries arguing that the presidency had become too powerful, enabling a madman or despot to destroy Americans’ liberties. The critics urged Congress and the courts to reassert themselves before the country slid into authoritarianism.

Since Joe Biden took office, however, Democrats have done nothing to rein in the presidency even though they know that a Trump-like figure, or Trump himself, may succeed Biden. Instead, they have shifted their institutional focus to voting rights.

Why are Democrats squandering the opportunity to reform the presidency? One explanation is that Democrats do not want to risk hobbling their president, especially because control of Congress might slip from their grasp in the 2022 midterm elections. If Democrats lose control of the House or the Senate, achieving their policy agenda will require them to embrace the strong presidential power that they decried a year ago.

Another possibility is that the left’s attacks on Trump’s abuses of power were never sincere. His critics might have believed that cries of “dictatorship” would be more effective than complaints about tax cuts when it came to rousing opposition. Or perhaps the presidency’s current powers are so deeply entrenched in law and custom that any effort to reform the office is bound to fail.

But beyond all this, there is a deeper reason why presidents keep accumulating power even as the trend incites alarm: The public -- including experienced political observers -- wants a powerful president, not as a matter of theory or ideology, but as a matter of practicality. Only a strong presidency seems capable of addressing the country’s many challenges.

This has been the lesson of the past two decades, when the United States was slammed with three major crises: The Sept. 11, 2001, terrorist attacks, the 2008-09 financial crisis, and now the COVID-19 pandemic and economic collapse of 2020-21.

A crisis calls for decisive governance. Even at the best of times, Congress is prone to squabbling and pettiness, and to the kind of rational but self-destructive haggling that produces delays rather than action.

Crises such as the Great Depression and World War II gave rise to the modern “imperial” presidency. Congress willingly transferred power to the presidency through a series of statutes empowering the executive branch to respond to, and forestall, any new crisis. In the subsequent era of Cold War and regulatory growth, resources and authority encrusted an office that America’s founders would no longer recognize.

The size of the national government has increased without serious interruption since WWII, with virtually all of the gains in personnel, money, and infrastructure occurring in the executive branch. Democrats want a powerful president to regulate the economy, while Republicans want a powerful president to protect the country from foreign threats, illegal immigration, and -- increasingly -- economic insecurity. Anti-government political impulses of the 1980s and 1990s all but vanished on 9/11. The president claimed, and Congress and the courts ratified, new surveillance and security powers in the name of protecting Americans from terrorist attacks and other foreign hobgoblins.

The financial crisis seven years later provoked the largest-ever state intervention in the US economy, with executive branch officials again leading the response. Congress pitched in by supplementing the executive branch’s limitless resources with an extra few hundred billion dollars, and then by extending the president’s already massive power to regulate the financial system after the crisis had ended. Widespread personal insecurity born of economic calamity helped propel extensive government intervention in health care markets during the Obama years.

This pattern repeated itself in the last year. The pandemic and economic crisis led to even greater state intervention, accompanied by the most broad-based and extensive constraints on personal liberties in American history. The only puzzle in this story of ever-expanding executive power was Trump’s refusal to use it in the midst of the worst of these three crises. Liberal politicians who had long claimed to believe that Trump was looking for an excuse to inaugurate a dictatorship joined Republicans in showering him with cash to use as he saw fit. They demanded that he impose lockdowns and invoke the Defense Production Act to marshal private economic resources for the pandemic response. Trump mostly resisted these calls, though he did ratify spending more than a trillion dollars in congressionally appropriated rescue funds (and made sure his name appeared on the stimulus checks).

Trump acted weakly rather than decisively because he feared that a strong federal response would further damage the economy and undermine his prospects for reelection. While Trump deserves credit for the vaccine pre-purchase program, Operation Warp Speed, he gave the impression of following Congress rather than leading -- and he paid the price at the polls. Given that Trump presented himself as a strong leader to the right and was feared as an authoritarian by the left, the irony is rich.

Clearly, Biden has resolved not to make the same mistake. Calculating that presidential aggrandizement will serve him best, Biden has launched the most ambitious political program in decades: Not only a slew of executive actions and far-reaching legislative proposals, but even a show of consideration of reforming the Supreme Court, the Republicans’ last redoubt in the federal government. The absence of debate about presidential power -- just months after a mob attacked the US Capitol at the behest of a president accused of authoritarian ambitions -- suggests that the imperial presidency is here to stay.

Eric Posner

Eric Posner, a professor at the University of Chicago Law School, is the author, most recently, of “The Demagogue’s Playbook: The Battle for American Democracy from the Founders to Trump” (All Points Books, 2020). -- Ed.

(Project Syndicate)

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