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A few days ago a friend told me that Chuck Schumer thinks he’s a minority leader but he’s actually an opposition leader. Or rather that’s the position into which history has placed him — and he doesn’t realize it or he doesn’t grasp the difference or he’s simply not able to be the latter thing. There are lots of ways to explain the disconnect or incapacity. But I thought this was a pretty good one.
Last night, in this vein, I suddenly realized there’s a backed-up line of incapacity, a traffic jam of it.
I watched the reaction to President Trump’s latest salvo, an executive order purporting to upend key elements of election administration in the United States. People have to prove citizenship to register to vote, it says. No states can accept votes by mail after Election Day — and much more. The country’s most prestigious news organizations rushed to report these as fait accomplis. The Times announced that, henceforth, Americans would have to provide proof of citizenship to vote. The Post was more or less the same.
Most people, including a lot of journalists, don’t understand what an executive order even is. It’s not a law or even a quasi-law. An executive order is really just a memo from the president to his staff (in this sense, his staff of two million civil servants) to take certain actions. Do this and don’t do that. Enforce this law in that way. Those can be actions the Constitution empowers him to take or ones Congress specifically assigns to him through laws. I interpret the law this way, so take this action, etc. In areas where presidents have a lot of power — say, in border and immigration enforcement, for instance — executive orders are a big deal. Courts can say: no, the law or the Constitution doesn’t empower you or allow you to do those things. But executives act and courts mostly react. So in this area of broad executive power, they’re a big deal. That’s also where you get into the territory of genuine constitutional crises and potential presidential dictatorship, because the outer limits of some of those powers aren’t clearly charted.
But presidents have little to no power over election administration. States administer American elections, for state and federal office. Congress is empowered to create certain baseline rules for how states administer elections, in addition to those enumerated in the Constitution. But that’s the federal role — a critical fact under present circumstances, as I noted a week ago. The president has very little power beyond having the Justice Department bring lawsuits over claimed constitutional infractions or failure to follow federal law. In other words, an executive order on election administration is mostly meaningless — and this is the case for multiple reasons, including some I alluded to a week ago. Elections are administered by state officials and they are part of a separate, untethered sovereignty. The U.S. president can’t fire a governor or a mayor, ever. Federal law is supreme over state law. That makes states subordinate to but still not at the command of the president. They’re separate sovereignties. It is as though the tendons or drawwires that connect a head of state down to local government in a unitary state have simply been severed in a federal one. He doesn’t just lack the authority. He lacks the power. As I explained Monday, the real issue is going to come when the president tries to use his unauthorized power to extort compliance by withholding money.
With people not knowing what executive orders are, well … some of that is just doomerism, libs and lefties style of obeying in advance. But what about journalists at the most prestigious news organizations? How are we still there? I’m so tired of that 2024-and-before debate about whether journalists need to be “advocates for democracy.” I want clear descriptions of how the mechanics of government actually work. That’s a simple and inarguable ask.
Any good journalist covering the federal government knows this, though it could be hard to see it last night. But watching the initial press response, I realized it was something that runs deeper. What’s clear in these headlines is that the big news organizations simply lack a vocabulary or a strategy for how to report to readers when the president claims to do something he not only lacks the legitimate authority to do but even the power to do. That’s a very basic, foundational thing, and it requires some explanation about why we’re still here since we’re 10 years into this. But there we are.
News organizations have deep muscle memory creating the default assumption that when the president speaks it is if not fully accurate (as to legal authority or interpretation) or true, at least in the general ballpark of the same. So we see adjectives like “audacious” and “aggressive.” Fuzzy words that scrum around something rumbly and tough because the territory is somehow too daunting for journalists to walk on to. It’s the difference between “this is an outrage” and “that won’t even work.” Ten years in, Trump is still able to gobble up the space between the traditional assumptions of the political press and their lack of an idiom and vocabulary to accurately describe what he’s actually doing.
As I was watching this traffic jam last night, this soup-to-nuts conveyor belt breakdown of incapacity, I have to confess to you, just between you and me, I felt frustrated and a bit overwhelmed. We all collectively have to do better, be tougher … but more than tougher, have the flexibility, the elasticity of mind to confront the present moment.
A friend mentioned yesterday that a rising star Dem who may run for Senate next year went out and said that Chuck Schumer should step down as Senate Majority Leader. She’s right. It’s not something I’m really focused on. It’s not my call and he’s done lots of good things. Great guy. But he’s not up to it. I’m not even mad, as the Will Ferrell character says. He just doesn’t understand the moment. End of story.
I’m not even thinking about Chuck Schumer. Not my call. Not my circus, not my monkey. I’m just not interested in anyone who doesn’t have the vocabulary and dexterity for this moment.