Abuse of power doesn’t make Trump an imperial president — but voters can

After weeks of failed negotiations with Congress and facing an uphill battle for reelection, last weekend President Trump signed four executive orders to address the economic fallout caused by COVID-19. Trump’s latest end-run around Congress and assault on its power of the purse would seem to be just the latest salvo from an imperial presidency careening out of control.

Such claims are not new. Both President Bush and President Obama were derided by their critics for wielding imperial power. Has presidential unilateralism broken our constitutional system of checks and balances? And is Trump uniquely imperial? On both counts the evidence suggests no — though on the latter, the proper answer may be, not yet.

Critics of presidential unilateralism often warn that executive actions like these threaten the separation of powers. Calls for a polarized Congress to put principle over partisanship and check presidential overreach are common. However, less understood is that the most potent check on unilateral authority has long been political, not institutional. And central to this check is the power of public opinion.

Trump’s abuse of presidential power isn’t unique, but it is worrying in so far as it sets the stage for a true test of our system of checks and balances in November. If voters choose to allow Trump free rein on presidential abuse, we may have a truly imperial president.

In a systematic analysis of unilateral action over seven decades, we find that presidents commonly restrain themselves not because they fear formal reversals from Congress or the courts, or because they are reticent to violate democratic norms. Rather, presidents know that they risk negative repercussions from the public should they reach too far. A popular backlash would jeopardize their or their party’s electoral prospects as well as their ability to pursue the rest of their policy agenda legislatively. 

Historically, presidents have occasionally achieved considerable policy victories unilaterally that they never would have achieved from Congress. However, presidents have also repeatedly resisted the siren call to act unilaterally, even when they would almost certainly beat back any formal institutional effort to check them. Major unilateral policy shifts are surprisingly rare.

In some important respects, Trump is not that different from his predecessors. Empirically, he has resorted to executive action a bit more frequently than past presidents. But many of his actions overturned (or sought to do so) Obama era initiatives. And many other actions that received significant media attention have had limited effect — like the “evictions moratorium” which in practice would do little to help most vulnerable tenants.

Trump is not the only president to act unilaterally after failing to get what he wants from Congress. President Obama instituted the Deferred Action for Childhood Arrivals (DACA) program after repeated failures to secure congressional passage of the DREAM Act. And President Bush unilaterally created military tribunals to try terror suspects in 2001 almost immediately after signing the USA Patriot Act, which required suspected terrorists be charged within seven days of being taken into custody and provided access to the civilian court system.

Trump is also not immune from political pushback and popular backlash, which have checked some of his worst impulses. He has repeatedly floated or threatened unilateral action — to bring back torture, end birthright citizenship, and even adjourn Congress — only to back down in the face of elite criticism, often from members of his own party, and the public backfire such criticism fuels.

However, in two key respects, Trump is unique. President Trump’s actions were far less popular, on average, than those taken by his predecessors. In an analysis of all public polling data we could find on executive actions taken by Presidents Bush, Obama, and Trump from 2001 through early 2018, Trump stands out for his affront to national public opinion.

Instead, Trump’s actions have repeatedly courted his political base. Having launched his political career as a self-styled populist, Trump has always cast politics in terms of us vs. them. More so than any prior president, he has repeatedly used his unilateral powers to pursue policies prized by his base over those that enjoy broad public support. The reason is clear: the most powerful check on past presidents’ unilateral impulses — national public opinion — can do little to constrain a populist president who sees his political survival as depending solely on pandering to his base.

Second, Trump’s use (or abuse) of the presidency’s unilateral powers stand out for the brazenness of his assault on Congress’ power of the purse. Notably, his first broadside over the border wall was crafted primarily to satiate his base. His most recent gambit is more an act of desperation in the face of a significant deficit in the polls with less than three months to go before Election Day.

Has Trump forever altered the playbook? Not yet.

But two factors will be decisive. First, Republicans have pushed back against some of his worst impulses — most recently his threat to postpone the election. However, most have failed to call out Trump’s flagrant attacks on Congress’s power of the purse. This silence mutes the political costs Trump risks by acting so.

Ultimately, the true check on unilateral power has always been the public. Voters will render their verdict on this core tenet of Trumpism — the abuse of unilateral power for personal electoral gain — at the ballot box. Their answer may have lasting consequences for the constitutional balance of power.

Dino Christenson is associate professor of political science and a fellow of the Hariri Institute at Boston University. Douglas Kriner is Clinton Rossiter Professor in American Institutions and faculty director of the Institute of Politics and Global Affairs at Cornell University. They are co-authors of “The Myth of the Imperial Presidency” (University of Chicago Press, July 2020).