Radical Change and Challenges to the Constitutional Order

The United States’ political system is a slow-moving, often frustrating, sometimes confounding instrument of constitutional government that has served us well for nearly 250 years. Today, we face a direct challenge to the legitimacy of that system. Donald J. Trump, a disruptor and change agent, largely failed to move the system in his first term in office, but in Trump 2.0, he is driving change and leading what may be a radical restructuring of government. How is he doing it, and what will it mean to the future of the republic?

Our system of checks and balances, a separation as well as an overlapping and sharing of powers, is designed not to be efficient or easy to move. The Founders deliberately created a system that was slow and required a widespread consensus before action could legitimately be taken. While this may be a problem for some today, their logic was — at least to them — impeccable. They had just fought a revolution against centralized executive power (see the Declaration of Independence, a bill of indictment against a tyrannical king) and wanted to prevent the new government from trampling on the newly established rights of the people. Centralized power was seen as the agent of oppression. As Justice Louis D. Brandeis wrote in Myers v. United States (1926), the doctrine of the separation of powers was adopted not to promote efficiency but to preclude the exercise of arbitrary power, to establish a “government of laws and not of men.”

Today that system is being challenged.

The Republican Party controls the presidency, both Houses of Congress, and the Supreme Court. They have the trifecta of power: a “unified government.” Presidents have often faced divided government in which their party did not control all the levers of power. This makes governing difficult, as partisan conflicts often lead to deadlock. Historically, when a new president comes into office with the trifecta, he quickly begins to press Congress to pass “landmark legislation,” big ticket items that will have a large and lasting impact. Think LBJ and civil rights, or FDR and New Deal legislation. More recently, President Obama got a Democrat-controlled Congress to pass the Affordable Care Act (Obamacare), Donald Trump got large tax cuts, and Joe Biden got passage of a major stimulus package and infrastructure reforms. They were successful because they got a friendly Congress to support their efforts at change.

Why is Donald Trump NOT pursuing landmark legislative reform when he has all the pieces of the leadership puzzle aligned? Instead, Trump has opened his second term with a flurry of executive orders (more than 50 in his first three weeks, more than any president in history).

Political scientists would tell him that you should go for the gold when you have the numbers (congressional majorities) and rely on executive orders when you can’t get Congress to comply. But Trump is doing it backwards. This creates a problem for Trump. Executive orders are short-term cures. If past is prelude, the next Democratic president will undo what Trump is now doing. That is the pattern: Obama comes in and rescinds many of George W. Bush’s orders and issues many of his own, then Trump comes in and undoes the Obama orders, replacing them with his own, followed by Biden who does the same, and now Trump repeating this same pattern. But this merely creates a seesaw, back and forth dynamic, and establishes short-term rules that are quickly and easily reversed. Why get crumbs when you can get the whole loaf?

Trump skillfully recreated the Republican Party in his image. He has them. Why not use them? Is it a strategic blunder, or a reflection of Trump’s hunger to project power? “Look what I’ve done, look at the great changes. Give me credit.” While Democrats are engaged in teeth-gnashing, it is the Republicans who should be seeing the writing on the wall. Short-term wins look good, but the gold standard is landmark legislation, and in this Donald Trump is missing a great opportunity.

Michael A. Genovese holds the Loyola Chair of Leadership and is president of the Global Policy Institute at Loyola Marymount University. The author of more than 50 books, he teaches political science in the LMU Bellarmine College of Liberal Arts. In 2017, Genovese was awarded the American Political Science Association’s Distinguished Teaching Award. His article on the Southern Strategy, “Going South,” appeared in the winter 2023 issue of LMU Magazine.