After the new president delivers an uplifting inaugural address on the steps of the Capitol, he or she will proceed two-and-a-half miles down Pennsylvania Avenue to the White House, where a multitude of onerous problems await. At the top of the list is what tone to set, and what reforms to support, in reconstructing the presidency.
One critic of the presidency, Gene Healy, warned in 2008 that “it’s naive to imagine that the office can be put in its proper constitutional place with a carefully designed package of legislative and judicial reforms.” [641] The main hurdle to reform, he maintains, is Americans’ “romance” with “the Heroic Presidency.” If the public continues to envision the president’s role in grandiose terms, “even the most well-crafted five-point plan for restoring the constitutional balance of power is likely to fail.”
Healy is right that Americans expect much from their presidents—probably even more today than when he wrote those words a dozen years ago. One of the most challenging expectations—then and now—is that the presidency be strong enough to meet the nation’s many problems but at the same time remain in a meaningful sense a constitutional presidency that is adequately constrained by laws and norms, both in reality and appearance.
We explained in Chapter One why we believe a strong but restrained presidency is vital to making American government work. And we have endeavored to show throughout this book how a comprehensive program of reform can address many of the most pressing concerns about the modern presidency, especially those highlighted during Trump’s time in office.
The end of Trump’s presidency will not reduce the urgency for reform. It is reasonable to assume, as does Saikrishna Prakash, that the next or a future president “likely will continue to push the boundaries of the office outward and grasp at new powers. After all, every modern president supposes that his agenda is wholly just and absolutely necessary, that he alone enjoys a popular mandate, and that the ‘loyal opposition’ is in fact obstinately obstructionist.” [642] And we worry, for reasons we have discussed, that future presidents will learn from Trump’s novel exercise of presidential powers and exploit weaknesses in legal and normative constraints on the presidency even more effectively than he did.
Even had Trump not become president, the case for institutional reform would have been strong. But, as we have tried to show, Trump’s conduct of the presidency compellingly clarifies the stakes and has forced certain issues to the forefront of a reform agenda. Trump has declared that Article II of the Constitution “gives me all of these rights at a level that nobody has ever seen before.” [643] Whether in the attempt or the execution, Trump has exposed various ways that a president could presume to exercise his untenable version of “Article II” rights “at a level nobody has ever seen before.” If the Watergate episode in the Nixon presidency sounded the alarm and summoned the country to reform, so should the Trump presidency.
We have attempted to be very specific about what reforms are needed. The details matter. Both laws and norms are at issue: Norms do work that laws sometimes can’t, and reform of the law can reinvigorate norms. Norms will occupy an especially large space in the post-Trump reform program. Other presidents have skirted norms, but Trump has attacked them comprehensively and frequently, and disregarded them openly. He rejects the very constraining role that norms play in bolstering the constitutional balance. Presidents who come after him may not seize the “precedent” Trump has set in his assault on norms, but the nation cannot count on this. Affirmative reform, by statute or executive branch regulation, is needed to reset and extend these norms. So too is a presidential administration committed to them.
It will not be easy for the next president to strike the right balance between reforms needed to contain the presidency and prevent abuses of the office, and the preservation of a strong executive as a vital center of initiative and energy in our constitutional system. These objectives will always be in tension. But we are convinced that the tension can be managed and meaningful reform can be achieved, so long as we recognize that the results will be imperfect, that presidents will sometimes look to throw off the constraints, and that vigilance in maintaining the constraints is vital.
If the new president takes office in 2021, the nation will face one of the most difficult times in its history. It will be a pressing occasion for the new president to reflect on what makes for a “strong” presidency. The strength of the institution, and of a particular presidency, is measured by its capacity for effective executive leadership. Trump’s record of feckless leadership was closely related to his unrelenting efforts to defy or destroy constraining institutions. The goal in reconstructing the presidency after Trump must be to ensure that the institution characterized by the energy and initiative championed by Hamilton in Federalist No. 70 is nonetheless embedded, as Schlesinger rightly insisted, in a “system of accountability that checks the abuse of executive power.” [644]