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Donald Trump, Constitutional Conservative

Who but an artful negotiator has the political skill and constitutional sense to get things right?

In 2014 I wrote that political power was increasingly centered on a king-like presidency. I called my book The Once and Future King. That rubbed some people the wrong way. They didn’t like the suggestion that they were living in a monarchy. They yearned for a return of power to Congress under a Constitution of separation of powers, and called themselves “constitutional conservatives.”

They had an endearingly naïve plan for the way back. First the Republicans would elect a president who’d share their love for a constitution of shared powers, and rule modestly. And that would teach the Democrats a lesson! Subsequent Democratic presidents would take their cues from the Republicans, and rule modestly themselves. And when the constitutional conservatives found Ted Cruz, they thought they’d died and gone to Heaven.

But then that didn’t turn out so well, did it? And it wasn’t simply the candidate’s less than winning personality. It was also the lunacy of believing that, through unilateral disarmament, the Republicans could teach the Democrats a lesson. If a Republican president ruled modestly, he’d simply be a patsy and scorned by subsequent Democratic king-presidents.

Democrats have shown that they’re pleased as punch with one-man rule by a Democratic president. The Constitution requires a president to “take care” that the laws are “faithfully executed,” but that hasn’t stopped Obama. He’s done an end-run around Congress, around the Constitution, making laws by diktat and refusing to enforce laws that displease him. The constitutional conservative wants to return to a constitution of 1787, but we’ve returned to the constitution of a century earlier, that of James I and the royal prerogative.

So what’s the way back, if there is one? For an answer, don’t look to patsies, or to constitutional theories about the three branches set in equipoise like the one-hoss shay of Oliver Wendell Holmes, Sr. Look rather to personalities, to the kind of person adept at reaching across the aisle and reaching an agreement. And who could that be, other than Donald Trump?

The Framers of our Constitution knew about the art of the deal. When they gathered in Philadelphia, they couldn’t agree on anything at first. We nearly split apart into two or three different countries. The delegates threatened each other with Civil War.

If that didn’t happen, it’s because they made a deal. They took their cue from Benjamin Franklin, who told them that, when a board doesn’t fit, carpenters saw off a bit here, a bit there. And that’s how we got a constitution. One side gave up a bit, the other side gave up a bit, and they agreed on a Constitution.

They knew it wasn’t going to be perfect, not then, not ever, and that there would have to be future deals. And that’s the secret of our Constitution. Deal-making is baked into it.

Things aren’t supposed to happen unless the president, House, and Senate all get together to make a deal.

Deals are what the Founders intended. But now they don’t happen. Not only is Obama bad at deal-making, he doesn’t even try. Gridlock is his friend. He points to it and says I have to act on my own. Thazs arrogant. Self-centered. Egotistical. And Hillary is no better. She feels entitled to rule. She calls Republicans her enemy. If you thought that Obama wears a crown, wait till you see Queen Hillary.

Hillary doesn’t have a legislative agenda. She has an executive action agenda. By contrast, Trump wants to change our laws, not by executive actions, but by legislative reform. He’s promised to rip up every single one of Obama’s unconstitutional executive orders and decrees, but after that you can expect him to bargain with Congress over a broken statute book.

Think of the things he’s said need fixing. He wants to repeal and replace Obamacare with a health care system that serves ordinary Americans, not the trial lawyers, not the insurance companies. He wants a new immigration system that opens the door to immigrants who can help make America great again, and shuts the door to everyone else. He wants a new Tax Code that reduces marginal rates for most Americans and closes off the crony loopholes that permit billionaires to pay a lower tax rate than their secretaries. None of that is going to happen except in the old-fashioned way, when the president, Senate, and House of Representatives agree on a bill.

The list of potential Supreme Court nominees Donald Trump released tells us he’s a constitutional conservative. But even before that we should have figured it out. It’s impossible to imagine him as president doing anything other than negotiating with Congress. Fish got to swim, birds got to fly, the Donald got to negotiate. And that’s the way back.


 

Michael Vadon/Creative Commons

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