William Howell
Subject: Limiting Presidential Power
Bio: Inaugural Dean of Johns Hopkins School of Government and Policy and Author of Trajectory of Power: The Rise of the Strongman Presidency
Transcript:
Larry Bernstein:
Welcome to What Happens Next. My name is Larry Bernstein. What Happens Next is a podcast which covers economics, politics, and history. Today’s topic is Limiting Presidential Power.
Our speaker is William Howell who is the inaugural Dean of Johns Hopkins School of Government and Policy. This is a new academic division located at the Hopkins Bloomberg Center in DC that plans to develop innovative, evidenced based public policy solutions.
William is the co-author with Terry Moe of a new book entitled Trajectory of Power: The Rise of the Strongman Presidency. I want to learn from William about why he opposes the will of a popularly elected president and why he thinks that congress is incapable of controlling expanding presidential power.
This podcast was taped at a conference in Washington DC that I hosted. So, you will be hearing questions asked by me as well as my friends.
William, please begin with six minutes of opening remarks.
William Howell:
This is a book that is trying to make sense of how we got a strong man president. Not Trump. We want to go all the way back to the founding of the administrative state in the progressive period. It was built by Big D Democrats and is disproportionately employed by Big D Democrats attending to objectives that if you are left of center you like. And if you are right of center, you do not like it and see conservative objections to the rise of the administrative state from the word go.
Around the mid-1970s conservatives see that the only way they are going to deal with this administrative colossus is through the action of a powerful president who is willing to go to war within his own executive branch.
10 years later under Reagan, you see the rise of the unitary executive theory in the Justice Department saying, let’s reread Article Two to justify claims to vastly more power to attend to this problem of an administrative state that is progressive in orientation. The power of the president initially is to do reasonable things like have the power to remove.
But that gets bigger when you say, everybody within the executive branch serves at my discretion to execute the law. I have carte blanche how to interpret the law.
Conservatives look out upon this administrative state with disgust and then layer on top of that rising populism which is at its core anti-institutional, and you have the foundations of a strong man president that has its origins long before Trump.
Larry Bernstein:
Your book starts with Nixon. As vice president he did not feel that the entire government was stacked against him. After his first couple years, he realizes that he can’t get what he wants.
William Howell:
Nixon is a transitional figure, which is initially he looks like Eisenhower. He is going to take the administrative state and build it out even more. You see Nixon trying to unilaterally intervene into this administrative state to redirect it. Part of that is frustration. It’s just, damn it, these people won’t do what I want them to do and I’m the president. The rationale is about small D democratic rationales, which is that the only way you get democratic accountability with the administrative state is through the presidency.
It’s not like you can look to the latest president and expect them through political appointees and their persuasive capabilities to turn this thing.
Where does the administrative state sit in the constitutional order? This thing did not land like an alien ship. It was created by successive generations of politicians who through law, built agencies as expressed in statutes. There are various forms of small D democratic accountability that are present. The idea that the president is the only one in town is to miss the investigatory powers of Congress, the ability of Congress to pass laws that would overturn the original statute that created agency X or to change its mandate. Budgets are another venue through which you can exercise control.
Larry Bernstein:
A statute is vague like we want clean air. Then the bureaucracy puts together regulations and then we need to interpret words in the statute. They have a period of discussion, then they have conclusions about what this means. You cannot build that dam there to save a sardine. And the new president comes in and he ran that he is going to kill that sardine and build that dam.
Unnamed bureaucrats who has never been elected making the decision and the president saying no way.
William Howell:
Congress is free to pass a new law that amends or overturns any rule that comes out of the administrative state. There are real and legitimate debates to be had about how to interpret those vague statutes. That is the stuff of normal presidential politics as they relate to bureaucratic oversight. And so when you elect a Republican, they’ll interpret those governing statutes narrowly and you elect a Democrat, they’ll interpret them more expansively. Strongman power is different.
Larry Bernstein:
Recently a truck was driving on an interstate in Philadelphia, and it blew up. This was one of the major arteries in the United States. The federal government and the state have rules and regulations as it relates to fixing this highway. But we got to get this thing fixed pronto. Let’s bid this thing out not according to the normal set of rules. Speed is the essence, and it is done in three weeks. What is wrong with that?
William Howell:
In this moment when you like this particular action that is taken by a political ally, you are going to say hooray. And in the next moment when your political opponent says, forget the rules and regulations, I am going to do whatever I damn well please, that is going to feel like lawless behavior. This is not a grand defense of the administrative state, neither in terms of recognizing it being politically neutral. It’s not. Nor in arguing that somehow the administrative state that we currently have is optimally designed to execute whoever’s will ought to be executed. But the rule of law ought to matter. And I want sabotage. Because when you have a president who steps in and says, what I am going to refuse to defend the existence of an agency before the courts and make it impossible for experts within that agency to do their work and I’m going to try to demoralize them in every turn.
That is a move that is not towards reinterpreting a statute. That is trying to kneecap an agency that makes it incapable to perform its most basic functions. It is waging war against the administrative state.
Keith Hennessey:
My name is Keith Hennessy. Why is it that when one party controls the White House, the Senate, and the House, they do not seem to have the capability to pass laws to do the things they want to do. What is the structural impediment?
William Howell:
My co-author Terry Moe, the first book we wrote together was making a case for an expansion of presidential power in a particular way allowing the president to introduce legislation to Congress that had to be voted on. What was motivating our thinking is presidential leadership ought to be a part of a solution to a legislative process that is broken. Part of the answer has to do with institutional dysfunction in the first branch of government and its incapacity to meet modern problems.
It’s easier to protect the status quo than it is to disrupt it. Which is why conservatives need a stronger presidency than Democrats do not. Because Democrats look at the administrative state and they lament that it isn’t as efficient, there is waste, and they want it to perform well.
If you’re a conservative, you look out on and see enemies everywhere. To upend it, you need way more power, which is why the unitary executive theory to be a justification to ever more expansive presidential power.
Larry Bernstein:
The next question comes from my high school debate partner Jay Greene.
Jay Greene:
I do not just go far back with Larry. I also go far back with William. Three decades ago, we collaborated on a study in Cleveland where we went to a steakhouse and ranked ordered all the schools for how we thought their test scores would come out just from a 15-minute walk around and we were spot on.
I also go far back with his co-author, Terry Moe. One of the best articles I read in grad school was by Terry and it was called the Politicized Presidency. The argument was that the administrative state was unwieldy and that the solution was to appoint like-minded ideologues to as many positions as possible in the bureaucracy. You could significantly reduce agency cost if you had like-minded ideologues in the position. Terry was thinking of Reagan and Watt in the EPA at the time.
Subsequent during the Obama administration with a pen and a phone that there was also a desire for asserting additional presidential power. Terry liked it because he said someone has to govern and interpret law, and these weren’t his exact words, but it’s just as lawless for the bureaucrat to make law as it is for the president to make law, but at least the president is periodically accountable.
William Howell:
He recognized 40 years ago politicization as a strategy that Democrats and Republicans alike use to exercise a model of control over the bureaucracy to appoint like-minded folk to deal with agency costs.
The argument here is that the wheels have come off. There’s a trade-off between expertise and control. There’s a difference between a Republican going to appoint somebody to run the agency into the ground so that it’s incapable of fulfilling its mandate.
Larry Bernstein:
I did a previous podcast with Lindsey Burke from the Heritage Foundation. She said that Congress had statutes requiring the Department of Education to do certain things like provide funds for scholarships or do programs. What we are going to do is take these programs and give them to a different agency and shut it. And you say, wait a minute, you need Congress to do that.
See you in court.
William Howell:
This is politically contested. These are live issues in the courts right now. Our first book I wrote was on the president’s unilateral actions, how presidents use executive orders. The whole model that I had was you can operate in spaces of ambiguity with the law, but you cannot overturn statutes. This is part of how you get strong man presidents that say the statutes is what’s in the minds of the president. Never mind that the entire administrative state was born of statutes that is attending to missions and objectives that are written into law. The only thing you should pay attention to is what is in the mind of the president. This is where we argue our democracy is in trouble.
Colin Teichholtz:
There are parts of the government like the Department of War that are not the province of the left.
William Howell:
Those are cases where liberal and conservatives have different views about how to deploy agencies, but those are not experienced by Democrats in the way that the EPA is experienced by Republicans. They are recognized as legitimate sources of state power and important functions of the federal government. There are debates about what they ought to be doing. What is animating the claim for more presidential power on the right is the progressive components of the administrative state, which are large and growing. We could imagine maybe we’re going to see if we build out ICE and a bureaucracy that is carefully monitoring sexual lives of women. Then I can imagine the left saying, this is dreadful.
Larry Bernstein:
Our next question comes from David Wecker.
David Wecker:
As I read the Constitution, the executive powers are invested in the president. The legislature is a more powerful institution than the presidency. It can impeach the president; it can override the president’s veto and it must approve major appointments. Clearly, the legislature is the higher body of the two. The problem is that the legislature is almost incapable of passing laws in enough detail to govern a continental size country much less a global empire.
If we don’t like that Congress passes generalized laws and then relies on an administrative state to implement them, we need to make Congress smarter to be able to write laws that are more specific. Every member of Congress probably needs a hundred experts as opposed to a few college staffers. We would move the bureaucracy from the executive to the legislative. And then they could set all the policies and be democratic. We haven’t done that. There’s no prospect of doing that. But you need experts.
William Howell:
Where do the experts sit? They sit over in the second branch of government by construction. That didn’t have to be that way. It doesn’t have to be that way going forward either. Congress is perfectly capable of building out its own capacity to pass laws.
Larry Bernstein:
The EU has a European parliament where the laws are proposed by the bureaucracy and then voted on by the legislature. This seems to be what Wecker wants where the experts create the legislation. But I am not sure it achieves the ultimate democratic objectives as few people vote in the European parliamentary elections relative to the national ones. There is significant dissatisfaction with that system. If you’re looking for a regulatory state, Europe’s got it. America chose a different path with less regulation.
William Howell:
We need institutional and constitutional reform. Some of this could be about capacity building in the first branch of government. The other is you do not like a law, pass a new law. But it’s impossible to pass a law presently. So take a step back and say, how ought we to rethink the legislative process so that it becomes possible to do that.
Jay Greene:
The solution that you just described and Wecker was describing is, well, if you do not like what the administrative state decides then pass a new law.
William Howell:
Yes.
Jay Greene:
I think there is no strengthening that could solve it. Laws cannot anticipate the future. Someone must interpret what that law requires in that moment in the future. And it could be an unelected bureaucrat is what we are defaulting into. Or it could be someone more accountable like an elected executive.
William Howell:
Count me in for efforts to resuscitate a legislative process that is incredibly difficult. Even if you had a more functional Congress that had greater expertise, they could pass laws. There nonetheless would be ambiguity that is written into law that requires interpretation.
You ought to have an administrative state with real experts with oversight by both the president and the legislative branch. That is a healthy politics. The idea that it should collapse to the will and the whim of one elected person who then is free to do whatever he wants, never mind what is written into law is a distortion of the rule of law and a violation of democracy.
Larry Bernstein:
The president announced a hundred percent tariff on China and said it was within his powers. Congress could say we are going to override it.
William Howell:
Yeah. But Congress is dysfunctional on the back end and on the front end. They’re not passing the clear statutes that are well-informed and they’re also incapable of constituting a reasonable check on strong man power.
Larry Bernstein:
You said, if ICE turns into an evil empire, then what would the congressional opposition do?
William Howell:
Progressives wouldn’t like that.
Larry Bernstein:
For sure. There are Republicans who may not like it as well. If you could get two-thirds of both houses to say the president has gone too far with ICE then shut it down. Congress sets up a hole that allowed a strong man president to take tariffs too far. And Congress can check it.
William Howell:
When you have a strong man presidency, where are you going to find your checks? You’re going to find it in the American people, in the courts, and in the legislature. Don’t count on it.
James White:
Congress still has the power of the purse. Why doesn’t it use it?
William Howell:
Why don’t they use it? It’s also like why don’t they protect it? Why don’t they say, look, when the president impounds, which we’ve seen this last nine months, why don’t they stand up and say, no, you don’t. And on principle, while I might be I’m aligned with you, I like what you’re doing, but what you’re doing is a gross degradation of congressional authority. I’m going to stand up for that on principle. That’s not a feature of our politics.
I want to distinguish bad policy from unlawful or unpresidential policy. You might say that this is just a policy mistake that you’re making and separate that from ways that presidents would betray the trust that’s vested in them as they occupy an office. There is a real tension here. I’ve argued this in the past, that one way to be decidedly unpresidential is to have power that’s available to you that would serve the public purpose and to not exercise it. That’s seen as a deep violation of the public trust. And so that’s a feature of our politics that goes way back.
Larry Bernstein:
It is like when President Buchanan refused to act after several states left the union and joined the confederacy.
William Howell:
Yeah, the worst rated presidents are not ones who exercised power with abandon and did bad things. It is people who stood down and said, nope, I won’t.
Larry Bernstein:
Why don’t Republicans in Congress view Trump’s actions as lawless?
William Howell:
The Republican party is the party of Trump in ways I have a hard time remembering ever the Democratic party being the party of fill in the name of a Democratic president.
Larry Bernstein:
FDR. It was FDR’s New Deal.
William Howell:
It is true where you have World War 2, the Great Depression, and huge Democratic majorities in Congress. This is a party that is walking in lockstep behind this president.
We have the rise of populism as a defining feature of what the right has become.
Jay Greene:
What do you mean?
William Howell:
It starts out with a deep critique of a broken political order. It says things are corroded all the way through and the voice of the people is not being heard. And all our institutions are corroded to the core, so invest your aspirations in me. I alone can solve it. And that move is where things go horribly awry.
Larry Bernstein:
When I asked that question, do the Republicans in Congress think Trump is acting lawless? The reason I asked the question was that they agree with him because if they did think he was lawless, the House at a minimum could pass a resolution and say the president’s acting lawlessly. But it has not even come up for a vote on a single action.
William Howell:
Congress is driven by my guy is doing something that I like. So, I am going to let procedure fly.
Larry Bernstein:
Is it lawless if Congress supports it?
William Howell:
Yes, it’s lawless. The administrative state is itself born of law. When you sabotage the administrative state, not reform it, not redirect it, not make public arguments about why it ought to be shrunk. When you sabotage it unilaterally, when you take a hatchet to it, you are behaving in ways that are lawless.
Larry Bernstein:
Our next question comes from Matthew Glavy who is a retired US Marine Corps Lieutenant General.
Matthew Glavy:
In the Biden administration we see similar lawlessness like not fulfilling federal law on the border. I am seeing other examples on the other side that fit your model.
William Howell:
That’s a false equivalence. That is not to say that Democrats abide strictly by the boundaries of their authority and that they are better people. That’s not the claim. It is that the arguments that they make about where the boundaries of executive authority are narrower in scope than are the arguments that we hear on the right as it relates to presidential power.
If you were to take a comprehensive listing of the violations of the rule of law, they are not the same. To say that on DACA that was an example of rampant lawlessness. That is equivalent with what we’re observing, I would argue over the last nine months is to mischaracterize what’s happening. What the book is arguing is that Democrats don’t need the power that conservatives when it comes to the administrative state.
Jay Greene:
Democrats have different forms of lawlessness. Rioting is a form of lawlessness. The 2020 George Floyd riots were encouraged by and often involved Democratic politicians who kneeled together in the rotunda in sympathy is a mobilization of a lawless populous mob to exert influence on government that was not doing what they wished it to do.
All you are describing is that part of politics is that people within the law will try to get what they want and when they fail, they could do things outside the law to get what they want. This is politics. And that of course we wish to adopt norms and systems that restrain that, but that we must recognize that this is part of political life.
William Howell:
The argument is not that Democrats never behave in ways that are lawless. Our argument is that the rise of a strong man presidency, which when laying waste to the administrative state is itself lawless, is a feature of conservative strategy that it is not of liberal strategy or liberal politics.
What was going on in Portland as troubling as it was, was not the same.
Larry Bernstein:
Wrap it up.
William Howell:
There are not easy solutions. There are deep historical forces in play. And so, we would do well to be as discerning as we possibly can moving forward.
Larry Bernstein:
Thanks to William for joining us.
If you missed the previous podcast, the topic was Understanding Trump’s Foreign Policy. Our first speaker was Emma Ashford who is a Senior Fellow at the Stimson Center, an Adjunct Professor at Georgetown and the author of a new book entitled First Among Equals: US Foreign Policy in a Multipolar World.
Our second speaker was a very dear friend of mine Rory MacFarquhar who previously was a member of Obama’s National Security Council.
Emma and Rory explained where Trump’s foreign policy is headed in Europe, Taiwan, Ukraine, and Venezuela.
You can find our previous episodes and transcripts on our website
whathappensnextin6minutes.com. Please follow us on Apple Podcasts or Spotify. Thank you for joining us today, goodbye.
Check out our previous episode, Understanding Trump’s Foreign Policy, here.
