We've had a 'constitutional dictatorship' before. Trump is different.
Congress’s hesitancy to do its job would have puzzled the Constitution’s framers, argues Russell Riley
On the afternoon of Sept. 12, 2001 — for one of the few University of Virginia classes meeting that week after 9/11 — I set aside my prepared remarks and instead offered those rattled undergraduates a prediction about their futures.
Our messy, sometimes dysfunctional, politics of checks and balances would for a time disappear, I suggested, with Americans of all creeds united to follow their president’s lead. Yes, even in support of this unlikely national commander: an amiable but ineloquent Texan who rose to the presidency even though his opponent had gotten more votes.
I did not paint this picture to make my students feel better — although I anticipated it would. Rather, I was explaining to them what history showed was about to happen. At least until the president’s missteps in Iraq intruded years later, George W. Bush enjoyed extraordinary latitude to lead the nation against the threat of global terrorism, both at home and abroad. Republican and Democratic members of Congress joined hands on the steps of the Capitol to sing “God Bless America.” Troops became Bush’s to deploy unilaterally. Intrusive intelligence was his to gather. The economy was his to repair and resurrect. He was, in short, in broad command of our political system.
Bush’s ascension was predictable because it followed a durable pattern in America’s past: During normal times, our government by design and political habit is divided, and the zigzag path it follows emerges from the muddled process of compromise and consensus. Inefficiency is not a constitutional bug but a feature.
In times of genuine crisis, however, when strong action is needed without delay, Americans typically turn to a single, vigorous national leader. The eminent, mid-20th century political scientist Clinton Rossiter called these departures from the norm “constitutional dictatorships.”
Today we are experiencing another kind of vigorous national leadership from the White House. But the current presidency is unlike anything we have seen before. This is not an institution grown muscular from the natural push and pull of American politics.
It is a presidency on steroids.
There is no crisis clause in the U.S. Constitution. Rather, when presidents have proclaimed emergencies — or perhaps more accurately, when they have recognized them — in most cases, Americans have simply behaved differently. They rally to the leader. And these episodes of emergency leadership have produced astounding displays of executive power.
This pattern is older than the Constitution itself. During the American Revolution, the Continental Congress was the national government. But the perils of English marauders on American soil caused Congress to follow Gen. George Washington, who raised and equipped troops, controlled food supplies, meted out justice, regulated public health, and took any steps he deemed necessary to fight off the threat. Congress accepted all this while actively rebelling against kingly rule.
At the beginning of the Civil War, Abraham Lincoln was the government of the United States for 11 weeks, not even calling Congress back into session until he could get the Union war effort begun in a direction he single-handedly established. He blockaded Southern ports, a belligerent act widely understood to be the sole province of Congress. He spent tax dollars that had not been appropriated to raise, provision and deploy troops — all without specific legislative authorization. Later in the war he signed the Emancipation Proclamation, which by the conventions of the day amounted to a monumental taking of private property.
Lincoln’s powers were later dwarfed by Woodrow Wilson in World War I, who could, among other things, direct Americans as to how much sugar they could add to their morning coffee. Wilson was granted by a compliant Congress the power to distribute fuels and other public necessaries; to fix wheat prices and coal prices; to take over factories and mines; and to regulate the production of intoxicants. Enhanced legal constraints were created by Congress to control treasonous utterances and punish disloyalty, which the president executed, energetically, through the federal courts.
And during the Great Depression, and then the Second World War, Franklin D. Roosevelt ran a command economy. For a time, he shut down the nation’s banks. He directed human and natural resources to where he judged they were most needed. He controlled prices. And he supervised the growth of an unprecedented defense and national security state, including surveillance of public and private communications. The National Archives reports of Roosevelt’s Office of Censorship, “At its peak, in September 1942, more than 10,000 civil service employees opened and examined nearly one million pieces of incoming and outgoing overseas mail each week.”
FDR interned Japanese Americans and sanctioned the development of the most lethal weapon used in history, without any substantial oversight or checks by Congress or the judiciary. He didn’t even tell his vice president about the bomb, although Harry S. Truman was the one who ultimately had to decide whether to use it. These were powers unknown to even the most ambitious monarch. And during the long run of the Cold War, some of these enhanced authorities reappeared, especially in instances where the nation’s security was vulnerable.
All this muscular presidentialism is an undeniable part of American political history — and a reminder that aggressive use of executive powers in Donald Trump’s second term is not entirely new.
And yet: For all of Trump’s resort to emergency powers, he has seldom stuck to the accepted playbook of crisis government.
