US presidency still checked against authoritarian rule

Donald Trump speaks during an election night event at the Palm Beach Convention Centre.

It is the paradox of American presidential elections that their outcome has far less impact on the US than on the rest of the world. From the republic’s earliest days, the separation of powers has tightly constrained presidents’ ability to reshape the way the country works. And no matter what one makes of Donald Trump, it would be foolish to believe those constraints are about to fade away.

Trump has, for sure, been accused of being a fascist. However, no one who has any understanding of what the word means could take that accusation seriously. It may be that he harbours authoritarian instincts, but the claim that he would govern dictatorially does not sit easily with the record of his first term.

Measuring the unilateral exercise of presidential power is inherently difficult. Nonetheless, since the Federal Register Act of 1935, it has been possible to systematically track the extent and scope of executive decisions. Those decisions acquire legal effect by being translated into executive orders, presidential memorandums, proclamations, signing statements and final rules.

There are, additionally, breakdowns that distinguish the decisions that are substantive, in the sense of setting out new policy, from those that are minor, essentially administrative or largely symbolic.

Using the number of significant decisions as an indicator, the first Trump administration did not make any greater use of unilateral presidential power than its predecessors. Thus, from Dwight Eisen­hower to Trump, American presidents issued, on average, some 220 executive orders in their first term; Trump issued 218. And while Trump issued slightly more presidential memorandums than Barack Obama, he promulgated only one-seventh as many significant final rules.

Donald Trump speaks during an election night event at the West Palm Beach Convention Centre.

What is true is that advocacy groups, primarily on the left, challenged his administration’s executive decisions at an unprecedented rate. Moreover, with the administration’s decisions – and especially those relating to environmental protection and immigration – at times cutting procedural corners, fully 77 per cent of the orders subjected to challenge were quashed by the federal courts.

Adding its own weight to the challenges, the US Supreme Court severely rebuked the sloppy reasoning the administration relied on in one of its most important executive orders, which rescinded Obama’s Deferred Action for Childhood Arrivals program. Presidential action, the Supreme Court reaffirmed, must conform to stringent standards of procedural integrity and substantive rationality.

There is no evidence whatsoever of the Trump administration ignoring those rulings; on the contrary, it complied with the courts in every instance, including by properly revising the orders it regarded as particularly crucial.

It is, at least to that extent, incorrect to claim, as The New York Times does in its election wrap-up, that Trump flouted the separation of powers. And, if anything, the much reviled Supreme Court’s most recent decisions make the hurdles the separation of powers will impose on the new administration even steeper.

Especially important are the decisions that overruled Chevron deference and established the “major questions doctrine”. The Chevron framework, set out in a 1984 Supreme Court decision, vested sweeping, quasi-legislative, powers on the executive branch, allowing it to interpret ambiguous statutory text as it saw fit. By overruling Chevron, and by requiring that executive agencies point to clear congressional authorisation before making decisions on “major questions”, the Supreme Court dramatically reduced the room presidents have to determine domestic policy without an explicit congressional mandate.

Nor will it be easy for Trump to secure that mandate. The outcome in the House of Representatives is still unclear; what is known is that the Republicans have a workable majority in the Senate.

But congress is and has always been most in character when it is saying No. Cherishing its habitual role as a brake on the machine of federal government, it is at least as obstinate as it is constructive.

And even if the Republicans manage to hold the House, that could easily change in 2026. The Democrats controlled all three elective branches for 18 of the 20 years between the 1932 and 1952 elections. However, since then, and particularly since 1992, patterns of control have become increasingly unstable, with the permutations of control changing at virtually every election.

The US, it could be said, has once again become trapped in the institutional instability that, from 1872 to 1892, characterised the so-called Era of No Decision. As the major parties struggled to devise practical policies that reflected the needs of an economic and social structure experiencing wrenchingly painful change, voters repeatedly punished incumbents.

As a result, there were, in those two decades, only four years in which one party controlled all three elective institutions, with each episode of unified control lasting just two years.

Now, as then, there are few signs of the institutional instability waning. Trump’s victory, which saw the Republicans enjoy a widely based swing that allowed them to convincingly win the popular vote, gives his presidency a legitimacy the Democrats always denied it had.

But it still falls well short of momentous shifts, such as those that marked the elections of 1800, 1828, 1860, 1896, 1932 and 1972, that presage a fundamental, stabilising, realignment in American politics.

Substantive policy change – including the renewal of Trump’s 2017 tax cuts, which expire next year – will therefore require coalition-building that assembles, however fleetingly, what John C. Calhoun famously called “concurrent majorities” throughout the principal elements of the country’s governance. In a constitutional system that lacks any mechanism, such as our double dissolutions, for resolving intractable conflicts between its branches, the key, if it is to turn the lock, will have to engage each pin – the House, the Senate and the President – and then pass Supreme Court scrutiny to boot.

That constraint, experience has repeatedly shown, is a two-edged sword. Almost inevitably, it stymies the soaring hopes of a new administration’s supporters, making American democracy a perpetual lesson in disappointment. But it can also claim to be America’s principal defence against bigness, facelessness and hubris in government, assuaging, at each election, the worst fears of the contest’s losers.

None of that means the administration’s foreign policy, which is subject to far fewer constitutional limitations, will be sensible – though for all its hits and misses, Trump’s first term had some notable successes, including the Abraham Accords.

Even less does it mean that Trump is an admirable human being. But the Americans who voted for Trump didn’t think they were electing a saint. They thought, in a system replete with constitutional safeguards, that they were electing a president who could make their lives at least a little bit better, a little bit easier.

In all societies, governing is hard. In American society, mobile, diversified, conflict-ridden and violence-prone, the task is harder than in most. History records, however, that it has been met and discharged, not unsuccessfully, before. Whether Trump can rise to that challenge is the question that lies ahead.