The Presidency: Bending Institutions to Save Them? By Professor Julia Azari

The Presidency: Bending Institutions to Save Them? By Professor Julia Azari

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The Presidency: Bending Institutions to Save Them? By Professor Julia Azari

GAI | July 22, 2022

By Professor Julia Azari, Marquette University

Presidential power is a bit at odds with democracy. Presidency scholars have noted this for years, suggesting that “greatness” is often uncomfortably close to the kind of norm-busting, authoritarian action that our constitution is supposed to avoid.

Presidents also face a dilemma about who they represent. They are positioned, by the “take care” clause of Article II, to be the final defenders of the Constitution. More informally, they are positioned to be the rhetorical “definers” of national values and identity. But they’re also politicians and party leaders, and balancing these competing demands has been a challenge in a polarized era.

In other words, presidents have tended to have a lot of power – some of it in tension with other powers, and often more than it seems like a single person should have. Yet in 2022 it seems like Joe Biden has been unwilling or unable to tap into that power as the country lurches toward Constitutional crisis.  Biden is struggling in the presidency. But more specifically, he is struggling in the post-Trump presidency.

This post brings together two questions. The first is how Trump changed the office of the American presidency. After the 2016 election, I predicted that he would. Every president does. But Trump was unusual on so many dimensions, and left office under such strikingly unusual conditions, that it has been difficult to trace exactly what his institutional impact has been. This question is intellectually interesting to me as a presidential scholar. But even though it’s academic and abstract, it’s also a question of practical importance. Because the presidency plays such an outsized and often contradictory role, interpretations of the office’s capacities and the expectations of citizens touch many aspects of American politics.

The other question is why Biden has struggled so much politically. At first glance, the answer would seem to be overdetermined rather than mysterious. The never-ending pandemic, inflation, difficulties ending U.S. involvement in Afghanistan. But Biden also seems like the answer to what presidential commentators have asked for: an experienced politician whose reputation has been built by serving in office, not by mastering media or achieving celebrity status. He has a reputation for ideological moderation as well as successful negotiations with the other party, including in times of crisis: in 2011 he and Leader McConnell brokered a last-minute agreement averting debt ceiling default.  Private conversations among experts have revealed that many of us see the administration more favorably than the polls do: a stable, scandal-free White House, careful decision-making in the Ukraine situation, a few big legislative accomplishments despite a precarious situation in the Senate. On the one hand, it seems like if bipartisan infrastructure and gun bills had been passed while Obama or Trump were president, news media would have hailed these as major accomplishments. But it all feels deeply inadequate to the moment.

Watching the emergency January 6 hearings on June 28, in which former White House employee Cassidy Hutchinson described Trump’s actions on that violent day, the connection occurred to me. Trump’s behavior, as described under oath by Hutchinson, neglected the Constitution, disrespected the office, and ignored the will of the people. This, of course, was not new. Trump at various points had expressed ignorance about basic provisions in the Constitution, suggested that presidential power was absolute, and disrespected the prerogatives of Congress as a coequal branch. More importantly, though, Trump made it clear that the office of the presidency was no longer dedicated to representing the people. This was clear in Hutchinson’s testimony: as Trump talked about armed protesters at the Capitol, he said, “They’re not here to hurt me.”

This is how Trump changed the office, violating a long-standing, if imperfectly realized, expectation of the presidency. His deviation was twofold: Trump’s statements made it clear that he was the president only for his supporters. He publicly attacked news media, called for his political opponent to be locked up, and delegitimated political opposition at every turn. His words and deeds left a great deal of doubt about whether he was the president for Democrats, liberals, immigrants, or LGBT Americans. Trump was hardly the first highly partisan president. But his punitive language and direct targeting of specific groups took division to a new level.

The other way Trump challenged the idea of the president being for the people was through his boosting of private business interests, surrounding himself with family as political advisors, and abandoning political associates in favor of his own interests. This was not the first time we have seen this kind of behavior from a president – Nixon’s efforts to reject the professionalization of the bureaucracy and create an executive branch that was loyal to him were also at the foundation of the Watergate scandal. Trump privatized the presidency in new ways, mingling government business with his private business interests and giving friends and family preferential treatment for distributing personal protective equipment when the pandemic hit in 2020.

It might be tempting to see this as a trait that Trump took with him when he left office. But another, increasingly evident interpretation is that these behaviors fundamentally changed the office and how it functions in American politics. Polls suggest that the executive branch lost public confidence around 2020 and has not regained it. Seeing the other party as illegitimate (even if initially tied to specific actions that do indeed threaten institutions) can be a disease in our body politic that infects all it touches, but most especially the Presidency as the embodiment of a party’s leadership.

If Trump’s problems in office were inexperience and norm violations, then Biden seemed like the ideal candidate to remedy these issues. I suspect retrospective evaluations of Biden’s presidency will show how experience mattered. But as far as norm restoration goes, there is no going backwards in politics. Many presidents violate norms, and what is more, these norm violations often get characterized as strong leadership. From accepting the 1932 nomination in person to threatening court-packing to running for a fourth term, FDR never met a norm he didn’t want to violate. Abraham Lincoln, though often constitutionally cautious in a way that reflected his Whig political upbringing, ultimately had to go far beyond the usual boundaries of what is seen as acceptable in politics. This included pushing the limits of presidential war powers, ultimately using them to free some enslaved persons as an act of war. In other words, there is a fine line between presidential greatness and norm violation. The difference may not always be clear. But an important criteria for greatness is having, and explaining, a vision for how the use of presidential power advances the goals of the Constitution and serves the nation.

Here, Biden appears to have made a fundamental miscalculation: he has underestimated the difficulty of restoring a presidency that serves the Constitution and the people. Part of this is a polarized political environment that cannot be easily overcome by experience or negotiation; Democrats and Republicans have different visions about what the Constitution means, and claiming victories is difficult with razor-thin margins and Sens. Manchin and Sinema. Biden also takes office after a long period of racial strife has played out in the presidency. Obama opponents successfully framed his presidency as one in favor of non-whites, a sentiment Trump was able to capitalize on in the 2016 election. Biden inherits this challenge, and has responded in some ways: appointing Black women to new offices, speaking about structural racism. But it hasn’t been enough to dig out of the presidential deficit created by Trump.

And the problems can’t be totally laid at the feet of polarization: Biden is losing support among Democrats as well.

Biden has at once been very cautious in his deference to American institutions, and surprisingly bold by the standards of post-Reagan era Democrats. He has supported filibuster carve-outs, most recently for legislation to protect abortion rights. But the president has tread carefully on the subject of Supreme Court legitimacy, stopping short of endorsing expansion or change. Over and over, the crisis presidency has relied on the ability of presidents to do a few things: take advantage of their position as the only nationally-elected official in the country; identify the problem with the status quo; and justify norm-breaking action with an argument about how it protects deeply held constitutional values. At a moment when many core values seem under threat – majority rule, free and fair elections, privacy and self-determination – the president seems stuck when it comes to tying it all together.

The American presidency is a problematic and confounding institution, difficult to constrain but essential for Constitutional expression when the country has gone astray. Coloring within the Constitutional lines has rarely been associated with great presidential leadership. In the aftermath of Trump, in a political system deeply distrustful of its institutions, Biden’s task is all the more difficult and calls for serious abnormality. The essence of the presidency is that it carries the obligation to defend the Constitution and serve the people, even when that means pushing the limits of executive power.

Expanding executive power is not something to take lightly in a democracy. But the very reason such power exists is to protect the republic and its constitution.