The rules about the rules

The only thing about any of this that seems to me obvious is that our tripartite government is a tricycle with a wonky wheel — the presidency. Though there are ancient intellectual disputes about such questions as judicial review, a reasonably effective and stable modus vivendi has evolved for relations between the judicial and legislative branches. And there was, until fairly recently, a reasonably effective (though less stable) settlement between the presidency and the other branches. Congress expanded the executive branch, for instance with the creation of the Department of Education, and it constrained the executive branch, too, through legislation such as the War Powers Resolution and the Hatch Act. But the presidency is an opportunistic political organism, and it has grown, for good reasons and bad, particularly during the administrations of Richard Nixon and those who came after. Claims of executive privilege grew to such an extent as to amount to something like immunity from congressional oversight, particularly in matters related to political scandals. The role of the president as “Commander-in-Chief” was inflated to princely proportions. And now, President Trump wants a bigger presidency, too.

We should not give it to him.

As my friend Jonah Goldberg has shown through his invaluable writing on the subject of classical progressivism, the idea of an executive more or less freed from legal and constitutional constraints to do what needs doing right now was a favorite theme of Theodore Roosevelt and Woodrow Wilson, as emergency powers granted during times of war were sought for the “moral equivalent of war,” which over the years has covered everything from material relief (the so-called war on poverty) to science education to aluminum tariffs to carbon dioxide emissions. The pseudo-philosophy of political pragmatism and the politicians’ gift for creating an artificial sense of urgency around almost anything are together enough to ensure that a rationale can be constructed for almost anything. Marco Rubio, admirable man though he is, makes frankly ridiculous arguments for protecting domestic sugar producers (where do they work and vote?) as a matter of national security. I would not presume to speak for those who do the ugly and dangerous work of fighting our wars, but I suspect that, if it really comes down to it, the fighting men of the 82nd Airborne can take their coffee black and still get on with business.

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