I’ve been talking over the last few weeks about critical reforms that are necessary to make any kind of civic democratic revival in the U.S. even possible. The ending the filibuster and reforming the Supreme Court are high on that list. I want to talk about related topic today that we can only see if we take few steps back from the immediacy of day to day events over the last year and a half. These are tied to the over-mighty nature of the American presidency — or rather, the over-mighty potential of the American presidency, which a mix of Donald Trump’s degenerate personality and the theories of the conservative legal movement have brought to the fore.
The difference I want to note is between administration and ownership. We talk a lot these days about how Donald Trump seems to think he owns the United States – he puts his brand, his likeness, his signature on everything. He talks about his generals, his military, etc. But there’s a more concrete and specific way this is true and it goes to the heart of what needs to be fixed about the American presidency and the whole constitutional system.
We see it in DOGE, where people working at the president’s behest shut down or destroyed whole departments of the federal government. We see it in more physical, concrete ways, when Trump demolished the East Wing of the White House and began to build a vast ballroom set to dwarf the White House itself. He’s building this triumphal arch — redolent with militarist and fascist imagery — which will dwarf almost everything in Washington.
All of these actions bring to the fore the difference between administration and ownership. And that difference is the prism through which to understand the changes that need to be made to the presidency and the whole constitutional system.
An analogy illustrates the distinction. Say you’re a wealthy person with an estate and you hire someone to run it for you. Maybe you’re a true high roller and you summer there. But you need someone to run it, manage it. So we’ve found our estate manager and he’s running our estate. But now you heard that he’s tearing down the main house and replacing it with a roller skating rink. And there are three acres of land down at the bottom of a hill. Well, he sold those to someone else and he’s using the proceeds to build himself an ice cream factory on your estate.
At some point you found out about all this stuff and you say, WHAT THE ACTUAL FUCK IS GOING ON HERE? I hired you to run my estate, to manage it, to do upkeep, manage the staff, keep the lawn mowed. I didn’t hire you to demolish it or sell off parts of it.
You can see where I’m going here. The American people select a president to run the federal government, to execute the responsibilities the federal government has. That includes national security and foreign policy, administering a vast social safety net, running various duties the federal government has taken on — ag policy, biomedical research, grant research. The American people own the federal government. They are the sovereign. That sovereignty is expressed through laws passed by Congress. The president is elected to run it for four years. It’s not his. He can’t just lop off big parts of it, sell parts off, decide it should no longer do things it was designed to do.
Now in practice, at the margins, the line between administering and transforming can get murky. Under President Truman the White House was gut renovated and basically rebuilt within the outer shell of the structure. Is that so clearly different from demolishing the East Wing? Certain changes in policy direction, which we see as within the purview of the president, involve some transformation or reshaping of the executive branch. So there’s grist around for some amount of whataboutism and false equivalence. But to paraphrase Potter Stewart, we know it when we see it. During the height of DOGE, its defenders pointed to the Clinton Era “reinventing government” initiative which terminated a bunch of programs, culled the federal workforce, consolidated programs. But most of those reforms were recommended to Congress and passed as laws.
There’s no question that the presidency Donald Trump has created over the last 18 months is categorically new. It’s the embodiment of the kingship Trump aspires to and which the opposition has made the cornerstone of their opposition to his rule. How does that innovation get undone? How does that kingly, authoritarian version of the presidency get put back in the bottle? One way is not to have a supine Congress — one that, numerically, could have passed as laws, and thus authorized and legitimized, much of what Trump has done. (The key was they didn’t want to touch or take responsibility for Trump’s unpopular actions.) Another is that you need to toss out the nostrums and fake doctrines advanced by the corrupt Supreme Court, but also anticipated for decades by the conservative legal movement. Perhaps the biggest thing we see is that Congress was wise to create the independent regulatory bodies which the Supreme Court has now decided are unconstitutional. These are key — and entirely constitutional — locuses of oversight power, authorized and staffed by the Congress and the executive branch while not being immediately controlled by it.
The hallmark of Trump’s presidency is that we’ve learned that there are various things presidents cannot do — unless they really, really want to and come up with some notional “emergency” to justify it. In which case it’s fine. Then the president can do anything he or she wants. We see an endless string of permutations of this perverse logic Trump and the Court have: the civil service system doesn’t exist. Trump can fire anyone he wants. He can “negotiate” with his own appointees to award him cash settlements over claimed wrongs other presidents have done him in the past.
There are aspects of the American presidency that are simply too unbounded. These were vulnerabilities or latent powers that were always there — before Trump, before the Corrupt Court. They added to them. It took Trump’s degenerate nature to plumb all of their depths. Some of the problem goes back to the founding plan itself. The American president is basically the last standing example of the 18th century monarch, a vastly powerful figure who really did own his or her country. The Constitution Framers put all sorts of limits on the president. But the office’s DNA still bears the imprint of that history. We see evidences of it in things like the pardon power, a power based in the idea that the king can extend mercy against the demands of the king’s justice.
I don’t have a set of prescriptions to share with you. This post is more aimed at framing the question. The American president is fundamentally an administrator of the federal government, a thing owned by the American people and authorized and shaped by their representatives in Congress. Winning an election is fundamentally being hired to run it for four years. It’s not a property deed. The president doesn’t own the federal government. It’s not his. But when Donald Trump decided that it … well, it actually was his, his property, a thing he could do anything he wanted with … it turned out he mostly could. They say bad facts make bad laws. You could similarly say that bad presidents make bad reforms. Or they can. But Donald Trump won’t be the last strongman wannabe. So we have 30 months to figure out how to put this degenerate, corrupt genie of authoritarian presidency back in its bottle.