Individual states might resist him, but in Washington he will have great powerby Adam Tomkins / November 11, 2016 / Leave a comment
Published in December 2016 issue of Prospect Magazine
At times such as these we reach for The West Wing, don’t we? One of my favourite lines is from an episode in series two when Josh Lyman, the Deputy White House Chief of Staff, says that there are only two things that stop governments: money and politics.
As a constitutional lawyer I’ve always been struck by this truth. Law does not appear on Josh’s list. Governments will do whatever they can politically get away with, if they can afford it. Smart constitutions focus on finding ways of allowing governments politically to get away with less. Really smart ones also seek ways of controlling the government’s resources.
What are the prospects of the venerable but in some respects crumbling US Constitution finding ways over the coming four years of constraining the Trump presidency? The American system is, after all, renowned the world over for its famous checks and balances. These come in two forms: the substantive rights of states and individuals, which the constitution protects from federal interference, and the structural constraints that are built into the internal architecture of the federal state.
The real potency of the US Constitution is supposed to reside in the way it splits things up. First, there is the separation of powers. The President runs only the executive branch of government. Congress is outwith his control (still only ever “his”…). The same is true with the Supreme Court.
And then there is federalism. Washington is supposed to have strictly limited powers—expressly enumerated in the text of the Constitution. Where the Constitution is silent the power remains with the states respectively, or with the people directly. Such, at least, is the theory.
But will these structures actually bridle Trump? I am not optimistic. Trump’s party controls not only the White House but also Capitol Hill—both the Senate and the House of Representatives. While Trump is hardly an orthodox Republican, the alliances he will need and the coalitions he must now build are with his own side. He will not have to reach far across the aisle. And the modern political party is the enemy of the separation of powers, which is why, like Edmund Burke, the Founders were so suspicious of “faction.”