Trump's Frustrations Were Built Into the Job

The fall of the health-care bill is the latest sign that the Constitution's checks and balances are working.

Oh, that pesky Constitution.

Photographer: Mandel Ngan/AFP/Getty Images

Constitutional checks and balances are doing their job, making sure Donald Trump doesn’t rule on his own. First, it was the courts blocking the president’s executive order on immigration -- twice. Now, remarkably enough, it’s Congress, which has refused to repeal the Affordable Care Act and change Obamacare into Trumpcare. Last week’s developments on Capitol Hill may seem more surprising, because a Congress of the same party is typically a weaker check on a president than an opposition-dominated one. But the constitutional design of separation of powers is supposed to work regardless of parties -- and in historical terms, it often has.

It’s important to distinguish between a dictatorship, where the president rules by fiat; a parliamentary system, where the prime minister governs through the majority party; and a presidential democracy, where the president must execute the laws passed by the separately elected legislature.

The differences may seem obvious, but I’ve spoken to many worried Democrats over the past few months who fear and loathe being “ruled” by Trump. My answer is always the same: Trump’s not ruling you, because the U.S. isn’t a dictatorship. And now, after his health-care-repeal debacle, I can add: He’s barely even governing.

The separation of powers is working, at least so far, because the each branch of government has different incentives and values. James Madison put it bluntly in Federalist No. 51, and his language still resonates: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

To be sure, interest and ambition work differently in the judiciary than they do in the political branches. The judges who have blocked Trump’s executive order on immigration aren’t in line for promotion, and they can’t be fired. The public doesn’t know much about them, even though they’ve issued historically significant decisions. Ask yourself: How many of those judges can you name? Indeed, a poll recently revealed that 57 percent of Americans can’t name even a single Supreme Court justice, and they’re enormously more visible than district and appellate judges.

What motivates almost all judges is, frankly, to do justice and follow the law. Their interest and ambition is to gain the respect of their peers and the legal community.

What’s more, judges and lawyers alike feel solidarity within the profession, and want to protect it against incursions from the president. That’s why I’m confident that Judge Neil Gorsuch, Trump’s nominee for the Supreme Court, really is “disheartened” by Trump’s attacks on the judiciary, as Gorsuch said during his confirmation hearing last week.

It’s also why I’m sure Gorsuch meant it when he said no one is above the law, including the president.

Congress’s interest and ambition is a lot more blatant. That’s really what Madison was addressing -- and it’s what saved the ACA.

Party loyalty can, of course, weaken congressional interest in championing the rights of Congress over the president’s interest. Madison wanted to minimize political parties when he was designing the Constitution, and neither he nor Alexander Hamilton addressed parties at any length in the Federalist Papers.

But as recent events show, even party loyalty doesn’t eliminate individual Congress members’ interests and ambitions.

Moderate Republicans feared paying a price in their districts for repealing the ACA if its replacement harmed constituents. Their interest was to get re-elected, and that outweighed party loyalty.

More fascinating, the right-wing Freedom Caucus members, who tend to be from safely Republican districts, placed their own ambition not to compromise on their Obamacare hatred over party interest -- and over the president’s.

The Freedom Caucus members seem confident that voters in their constituencies won’t punish them for their hardline stance. They can’t be challenged in a primary from the right, not after this shenanigan. And in the past, their rejectionist tactics have gotten them re-elected.

As for their long-term interests, the Freedom Caucus presumably sees this vote as a major victory. They’ve blocked the president and the rest of the Republican Party. That means, in theory, Trump and the party will have to turn right to get any serious legislation passed.

A rightward turn, of course, even if Trump were prepared to make it, risks alienating more moderate Republicans in Congress -- and their voters.

Behold the separation of powers at its finest. Trump, a former Democrat, becomes a Republican and gets elected. Then his own party in Congress blocks him from accomplishing what the party has for years been treating as its signature policy. His interest and ambition are blocked by interest and ambition in Congress.

These checks and balances aren’t cost-free. They make it hard to get anything done in government.

When I’m talking to people who are engaged in designing a constitution, as in Tunisia a couple of years ago, I tell them that you can array all constitutions on a continuum, from the most powerful government to the most hard-to-get-things-done. Separation of powers lies pretty far toward to the gridlock end.

When your party has the presidency and Congress, the checks and balances are frustrating. But when you’re in opposition, the checks and balances are a gift from the gods -- or at least from the Framers.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Noah Feldman at nfeldman7@bloomberg.net

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    Stacey Shick at sshick@bloomberg.net

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