Just more than two months after taking office, the president of the U.S. is still roaring loudly, but moving forward slowly.
In November of last year, observing the surprising outcome of the election in the United States and trying to anticipate the possible consequences of Donald Trump’s victory, I wrote that “there is one political system in the world that was designed, from the beginning, to deal with such challenges and minimize the eventual collateral damage.” I said that in spite of the fact that, as in other places, the role of the presidency has expanded, “the mechanism for turning lions into kittens is still working.” Trump has been carrying out the duties of the presidency for a little more than two months. He is still roaring loudly. But he has been able to advance his agenda much less than he intended.
By using executive orders, he has been able to move some of his proposals forward. In particular, he resurrected the Keystone XL and Dakota Access petroleum pipelines, which had been stopped by Barack Obama because of their potential to cause environmental damage and affect the rights of native peoples. But at the time this evaluation was done, it would have to be said that much more was lost than gained. The design of the institution (and its resilient web) can do more than the one trying to manipulate it (and his urge to commit excesses). Let’s look at three examples that illustrate very well what it is that the “founding fathers” meant when they talked about a republic.
It is well known that one of the key elements of the campaign that propelled [Trump] to the presidency was his consistent criticism of immigrants. Latinos and Muslims, in particular, were held to be responsible for the main evils, from unemployment to insecurity, and obviously including terrorism. Trump moved ahead at full speed. He developed a proposal for building a wall on the border with Mexico and requested funding from Congress. The construction of the wall, despite the president’s enthusiasm, ran into all kinds of difficulties, inside and outside the United States. California, New Mexico, Texas and Arizona are opposed to its construction, because of impacts on property rights (since it can’t be built along the Rio Grande, it would necessarily have to be routed through private property). In addition to domestic opposition, there is that of the Mexican government, under Mexican President Enrique Peña Nieto, which categorically rejects paying for the wall as Trump wants.
If the border wall is running into problems, the regulation of immigrants from Islamic countries is hanging by a thread. The president’s executive orders for stopping immigration from other countries are encountering two kinds of resistance resulting directly from the design of the U.S. system. On the one hand, it is encountering resistance from the judicial branch. Federal judges in different states have ruled against the successive executive orders on the basis of the First Amendment (which guarantees, among other things, freedom of religion). On the other hand, it is running into opposition from the mayors of several cities. Eric Garcetti, the mayor of Los Angeles, affirming a previous policy, issued an executive order requiring that no city agencies may cooperate in the persecution of immigrants. Trump certainly will counterattack by threatening to withhold federal funding. The leadership of the city, for its part, argues that to do this, the president would have to have Congressional approval. The issue is still unresolved.
While Trump’s controversial immigration policy moves forward in hiccups, his much-trumpeted health care policy (the repeal of Obama’s health care law) has suffered a very clear defeat. This time, the president collided with Congress. The most interesting thing about this episode is that, as is known, the Republicans are in the majority (in the House of Representatives as well as in the Senate). But this has never guaranteed a U.S. president automatic approval of his proposals. To be able to move his legislative agenda forward, the president is obliged to persuade, or negotiate patiently with, the members of Congress. In this case, it is clear that he was not successful at this.
Trump has collided with judges, mayors and members of Congress. It is not a coincidence. The institutions, from the start, were designed for precisely this, as is argued clearly in Federalist Paper No. 51: “If men were angels, no government would be necessary,” and “[i]f angels were to govern men,” then controls would not be necessary. Given that this is not the way things are, controls are necessary, precisely by “dividing” the government and organizing it in such a way that each part controls the others, and can also control itself. The authors were clear about what the risk was that they wanted to avoid: tyranny. They knew how to avoid it: “mixed government.” This is supported by a long tradition, at the same time theoretical and practical, that goes back to Solon and Aristotle, to the Romans, Polybius and Machiavelli, up through Montesquieu and the Philadelphia Constitutional Convention.
The separation of powers and the increase in checks and balances has a price. It obviously increases inertia. Without impeding innovation, the institutional fabric minimizes the government’s discretionary powers and protects minorities. Trump, in the short or long term, will work with the separation of powers and the system of checks and balances to advance the substance of his agenda. For now, he is reaping more failures than victories. It has never been easy for a lion to walk across a spider web.
Editor’s note: [The author]’s position is supported by the analysis of Mark Jones, professor of political science.
The writer has a doctorate in political science and is a professor and investigator at the Instituto de Ciencia Política, Facultad de Ciencias Sociales, Universidad de la República (Montevideo, Uruguay).