Donald Trump’s hostility toward congressional oversight is leading some of his critics to describe him in monarchical terms. The Washington Post’s Dana Milbank argued that the president’s legal argument for ignoring subpoenas was “closer to the divine right of kings.” The New York Times’ Charles Blow wrote that the United States is “drifting dangerously close to an imperial presidency that exists above and outside the rules we thought were designed to prevent such an occurrence.” Even Jerry Nadler, the chairman of the House Oversight Committee, told reporters that Trump’s lawyers were “claiming that the president is a king.”
Trump’s opponents are right to worry about his breathtaking claims of executive power. What they miss is how much the nation’s constitutional fabric has warped beyond his presidency. Take the recent slate of anti-abortion laws. On Wednesday, Alabama Governor Kay Ivey signed what amounts to a total ban on abortion. It would imprison doctors for performing a safe and legitimate medical procedure. It would also allow rapists to force any woman in the state to bear their children or face the state’s wrath. A dozen other states have also passed or are planning to further restrict abortion.
The multi-state campaign defies almost a half-century of Supreme Court rulings on abortion, but that’s exactly the point. Its undisguised purpose is to pressure the court to overturn Roe v. Wade—and it just might work. The United States overthrew a king when it was founded more than two centuries ago, but the real wielder of power in this supposedly royal age isn’t whoever sits in the Oval Office. It’s whoever casts the deciding vote on the Supreme Court—which, more often than not, is Chief Justice John Roberts.
I often think back to a prescient article early last year in the National Review, “Anthony Kennedy Can’t Be Allowed to Die,” in which author Michael Brendan Dougherty worried for the fate of American democracy if the Supreme Court lost the associate justice. Dougherty correctly noted that the nation’s eighteenth-century governance structure wasn’t designed to handle twenty-first-century partisan warfare. “Technically, its role should be to declare whether or not this or that piece of legislation or executive-branch initiative is constitutional,” he wrote. Instead, as the country has become “less like a federal system in an orderly republic ... and more like a closely competitive mass democracy,” the Court’s role “has been to moderate and restrain the ambitions of each party.”
While the Court moved rightward over the past few decades, moderate justices like Lewis Powell, Sandra Day O’Connor, and Kennedy himself preserved a delicate balance of power in the cultural wars between America’s partisan factions. The court pleased conservatives by curtailing abortion rights and affirmative action, but without upending the status quo entirely. Liberals also won major victories, like when Kennedy led the court in protecting gay and lesbian Americans’ civil rights. “His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country,” Dougherty wrote of the swing justice.
The equilibrium could not last forever. “I’ve started to worry that if the Court soon consolidates to the left or the right, partisans on the losing end of that bargain will swiftly lose faith in democracy itself,” Dougherty wrote. “A non-swinging Supreme Court would give the impression of super-charging the ability of one party to act, and restraining its competitor. A consolidated Supreme Court could open up whole new fields of legislation for one side to act against the other. At that point, what would happen?”
We’re learning the answers now that Kennedy has retired. With Brett Kavanaugh in his seat, conservative legal activists are working to tee up landmark decisions on “religious freedom” exemptions, the federal government’s regulatory power, and civil rights protections for LGBT people. Liberals have begun searching for creative ways to overcome a Supreme Court that now looks poised to strike down their legislative agenda for at least a generation. Some have embraced term limits for justices, though that would require a constitutional amendment. Others have argued for packing the court with additional justices to restore ideological balance to the court.
The post-Kennedy era is also restructuring the other branches of government. Trump, who is eager to satiate his hardcore base of supporters but unable to get major legislation through Congress, increasingly relies on aggressive executive actions to circumvent lawmakers. In recent months, he’s declared a national emergency to bypass Congress on border wall funding, restricted asylum claims beyond what federal law authorizes, and mandated that asylum seekers stay in Mexico while their cases proceed through the courts. Legal challenges have temporarily blocked some of these measures while judges scrutinize them. But Trump still seems to be operating under the assumption that the Supreme Court will eventually side with him, even if the lower courts don’t.
This explains why, over the past few months, Trump and his lawyers offered views of executive power that veer toward the monarchical. The administration is resisting dozens of congressional subpoenas under the dubious legal theory that they don’t serve a “legitimate legislative purpose.” In a letter this week to the House Oversight Committee, White House Counsel Pat Cipollone argued that “Congressional investigations are intended to obtain information to aid in evaluating potential legislation, not to harass political opponents or to pursue an unauthorized ‘do-over’ of exhaustive law enforcement investigations conducted by the Department of Justice.”
Taken to its logical conclusion, this line of thinking leads to mind-bending legal arguments. William Consovoy, one of Trump’s personal lawyers, told a federal judge this week that Congress couldn’t investigate a president for possible corruption because that was law enforcement’s responsibility. The judge asked if that theory would have barred the Watergate investigation that felled Richard Nixon or the Whitewater inquiries that hounded Bill Clinton. Consovoy suggested that it would. “That is still law enforcement,” he replied. Considering also the Justice Department’s position that a sitting president can’t be indicted, the president believes he is beyond the reach of any mortal punishment (save for impeachment, which Democratic leaders are loath to pursue).
Trump’s assumption is hardly irrational. Chief Justice John Roberts and his colleagues are largely favorable to the president’s expansive views of his own power so far. The court’s conservatives accepted his dubious justifications for the Muslim travel ban and upheld the executive order. In oral arguments last month, they also seemed willing to buy his administration’s bad-faith argument for adding a citizenship question to the 2020 Census. Until the justices rule against Trump in a decisive way, he likely will continue to assume that they have his back.
Would a Democrat in the White House do anything to scale back the imperial presidency? It’s doubtful. Barack Obama took relatively few steps to reverse the growth of the executive branch after the George W. Bush administration. A President Bernie Sanders or President Elizabeth Warren might find it politically untenable among their supporters to use emergency powers to fight climate change if Mitch McConnell blocks meaningful legislation in the Senate. With Republican lawmakers already well-versed in wielding investigations as political cudgels, they might also be tempted to take a hard line on oversight powers, too.
In theory, the best counterbalance to an aggressive presidency and an assertive judiciary would be a strong legislative branch. Unfortunately, Congress is weaker than it’s ever been. Lawmakers spent decades handing their power to the executive branch on everything from immigration to trade policy to national emergencies. Thanks to institutional constraints and hyper-partisanship, there is now no easy way to claw it back. As I noted earlier this week, even if Congress passed a bill to rein in the executive branch, the president only needs the support of slightly more than one-third of one chamber to prevent Congress from overriding his veto. If those lawmakers happen to be in the Senate, he can also avoid removal from office.
Left with few substantive ways to exercise its power, Congress has become performative. Anyone who tuned in for major hearings over the past few years—James Comey’s appearance after Trump fired him in 2017, or Christine Blasey Ford and Brett Kavanaugh’s testimonies during the latter’s confirmation process last fall—saw how lawmakers from both parties showed more interest in grandstanding for the cameras than obtaining meaningful answers from witnesses. Not a few of these lawmakers already had their eyes on the presidency.
Which is yet another problem. Democrats’ only hope for enacting major legislation in the next few years runs through a handful of Senate seats in red or purple states. But more than a few popular Democrats who could mount serious bids for the Senate—including John Hickenlooper in Colorado, Steve Bullock in Montana, and Beto O’Rourke in Texas—are instead mounting long-shot presidential campaigns instead. One can hardly blame them. Why bother working on legislation when it almost certainly won’t make it past the Senate or the president’s veto?
Even the states are reorienting themselves toward this new world order. California’s Xavier Becerra and Washington state’s Bob Ferguson, both attorneys general, have had better luck at halting Trump’s executive actions in the courts than anyone in their congressional delegations. New York’s attorneys general under Trump, beginning with Eric Schneiderman, have proven more adept at investigating the Trump Organization and his other business interests than any lawmakers so far. Even Keith Ellison, one of the most prominent House Democrats and a vice chair of the Democratic National Committee, decided to give up his congressional seat last year and run (successfully) for attorney general in Minnesota.
Conservatives are all too familiar with this shift in the dynamics of American governance. During the Obama years, Republican attorneys general filed lawsuits in favorable judicial districts to challenge almost every major policy initiative he enacted. The legal challenges bogged down his agenda in the courts and delayed some key policies from going into effect before his term ended. Their highest-profile victory came in 2016 when the Supreme Court deadlocked in a case challenging Obama’s plan to expand Deferred Action for Childhood Arrivals, also known as DACA. The 4-4 split left the lower court’s decision striking down the plan as the final word in the matter before Obama left office. (Trump has tried to roll back DACA itself, but the courts have kept it in place for now while they hear legal challenges to his move against it.)
Some Republican-led states have more ambitious plans in the works. The GOP failed to repeal the Affordable Care Act in 2017, even though they controlled all three branches of government and spent almost a decade campaigning against it. Then, in December, a federal judge in Texas sided with a coalition of states to declare the entire law unconstitutional because Republican lawmakers had reduced a key tax rate in the statute to zero. The decision may ultimately be struck down in the appellate courts, but it still captured the strange new philosophy of American governance: Why bother with 219 votes in the House and 51 votes in the Senate when a fifth vote on the Supreme Court will suffice? It must be good to be the king.