President Joe Biden—and those who follow him—will navigate a new political landscape, reshaped by four years of Donald Trump.11:17 AM ETJack GoldsmithProfessor of law at Harvard Law SchoolSamuel MoynProfessor of law at Yale Law School
After years of Donald Trump’s boorish defiance of presidential norms, his incitement of the violence at the Capitol closed his term with a demented rave that shamed American democracy. Tomorrow Joe Biden will return the presidency to a more decorous and honorable choreography. But in important respects, Biden cannot restore normalcy. Trump’s most profound and least recognized contributions to the office he abused are a reorientation of some of the presidency’s important powers and responsibilities. Once-fringe understandings about the role of the president approached acceptance under Trump in ways that Biden cannot dismiss, and they could transform how the great office functions for years to come.
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True, Biden’s time in office will witness reversals by conservatives and progressives on some of the uses and limits of presidential power. The Harvard law professor Adrian Vermeule predicted at the dawn of the Trump administration that the sides would reverse their positions about aggressive uses of presidential administration. He compared the pattern to two lines of dancers in a Jane Austen novel who move to opposite sides of the ballroom and then continue dancing as before. “The structure of the dance at the group level is preserved; none of the rules of the dance change; but the participants end up facing in opposite directions.”
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In many instances, Vermeule’s prediction was right. Political actors and commentators supportive of Barack Obama’s “pen and phone” strategy—his aggressive use of executive orders, law-stretching interpretations of delegated power, and broad conception of his discretion to enforce (or not) the law—quickly switched their view when the Trump administration started making similar arguments in support of their quite different policies (related to immigration restrictions, environmental protection, and the like). And many conservative politicians and commentators flipped or shaded their views in the other direction as well.
This dynamic is one of the under-appreciated reasons why real executive authority has increased over decades, in spite of a rhetoric of constraint coming from whichever party has been out of power. On this score, in many ways, the Trump era was business as usual that will likely continue under Biden.
But, at the same time, under Trump new dynamics emerged that are not consonant with the standard pattern, and once-marginal understandings of the proper role of executive power approached the mainstream. This was not a merely partisan switching of sides only to continue the same dance, but a whole new song, perhaps even a new party—what Austen called in Sense and Sensibility “an unpremeditated dance.”
Sometimes Trumpian horrors provoked rage that has reshaped the presidency. At other times, he intended the reorientation. Occasionally, he was uninvolved, and the task fell to those around him. In the end, executive war making has emerged on the other side of the Trump years with both new constraints and new powers, while in the realms of economics and trade the presidency has seen once-marginal positions move to the center, leaving room for new possibilities.
The shift on war making stems from a remarkable mainstreaming in recent years of rhetorical opposition to “endless wars.” Trump railed against such wars during his presidency and both presidential campaigns. In office he clashed with the national-security bureaucracy and the military—with some public support—about drawing down troops in Afghanistan and Syria. Trump lost or was outwitted in many of these battles. But by the end of his presidency he could claim with some justification that “unlike previous administrations I have kept America out of new wars, and our troops are coming home.” There are fewer troops in Afghanistan and Iraq today than at any time since 2001.
Trump by no means supported a shift in executive power toward Congress, and he called for more military spending even as he questioned excessive foreign intervention. But during his tenure, from right and left alike, calls for reform of war powers dwarfed prior right-left opposition to American wars, in a remarkable mainstreaming of positions marginalized for many decades. The rhetoric of opposition to ending endless war took on a life of its own not just among activists but also among members of Congress, in an unprecedented reactivation of the defunct War Powers Resolution (in the case of the Yemen proxy war, supported by both Bernie Sanders and the conservative Mike Lee). Trump vetoed it, but a new consensus became visible.https://f4b94d01a6a448c08ef10605e85954c4.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html
Biden underscored the new reality with remarkable antiwar campaign pledges. He vowed to “end the forever wars in Afghanistan and the Middle East,” and to “end U.S. support for the disastrous Saudi-led war in Yemen.” A great deal of energy, from conservatives and progressives, will go into holding him to these promises. Just as significant, mainstream foreign-policy experts—including many former Obama national-security officials—now agree that something went dreadfully wrong in executive war making and American militarism generally. These sentiments have an even greater urgency as the coronavirus pandemic requires a rethinking of American national-security priorities. Biden’s national-security team has been dubbed “Generation Forever War.” But even if we assume that they are not chastened by past mistakes, they and the president they serve will have a tougher time asserting the same powers as before.
Ironically, Trump also contributed to this rethinking when he rattled America’s saber. His scary, impulsive threats to use his “bigger and more powerful” nuclear button against North Korea sparked serious congressional attention to plenary presidential control over nuclear weapons for the first time in four decades. We are a long way from any reform of this presidential power, but several officials testified about how informal constraints would check truly irrational presidential action in this area.
While the beginnings of a reset on war powers generally are discernible, a different and countervailing military reset—concerning America’s use of its cyberpowers—crystallized over the course of the Trump presidency. During the Obama administration, the United States suffered unprecedented cyber intrusions from foreign powers—notably the Russian interference in the 2016 election and the massive Chinese hack of the Office of Personnel Management databases. A consensus developed in the intelligence community that the United States had been too risk-averse in responding to these threats. The result was three important changes during the Trump era.
First, the Trump administration changed Obama-era rules in order to give Cyber Command greater latitude to engage in operations without White House sign-off. Second, Cyber Command developed and implemented a new strategy, called “Defend Forward,” under which it has a persistent presence in adversary networks so it can discover and check threats before they materialize. And third, Congress—on the quiet in National Defense Authorization Acts—gave the executive branch much more leeway to use offensive cyber tools abroad. The centerpiece of this bipartisan congressional scheme is a barely noticed express congressional authorization for Cyber Command to “take appropriate and proportional action in foreign cyberspace” in order “to disrupt, defeat, and deter” ongoing adversarial activity in the cyber domain if there is “an active, systematic, and ongoing campaign of attacks” against the United States by “Russia, China, North Korea, or Iran.”https://f4b94d01a6a448c08ef10605e85954c4.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html
Trump deserves little if any credit for these moves, which emerged out of a consensus between intelligence lifers like the Cyber Command leader Paul M. Nakasone, interested members of Congress, and sympathetic Trump national-security advisers. But the broad congressional support for these moves reveals a new consensus that the U.S. needs to take more forceful steps to protect its digital networks, and makes it unlikely that there will be a pullback under Biden.
A related mainstreaming under Trump of once-marginal criticisms of the executive pertains to domestic surveillance in the name of national security. Trump’s attacks on the FBI’s surveillance powers, and a damning inspector general report about the use of those powers in the FBI investigation of the Trump campaign’s connections with Russia, led to a drop in Republican support for the FBI and an unusual split in the party on the appropriateness of domestic national-security surveillance. (At the same time, Democratic support on these matters rose.) One consequential impact of these changes was Congress’s historic failure in 2020 to renew three important sunsetted provisions of the Foreign Intelligence Surveillance Act. A renewal bill passed the House in March 2020 with more Democratic than Republican support, and then it failed in the Republican-controlled Senate a few months later. Trump’s attacks and the inspector general report were the catalysts, but the shift in Republican views has been happening slowly for more than a decade. It is too early to tell how sticky this change will be, but ascendant Republican concerns about presidential surveillance authorities may combine with still-prevalent Democratic concerns to place longer-term restrictive pressure on domestic surveillance.
Trump also succeeded in bringing a politics of economic “freedom” into question, both in domestic politics and as a foreign-policy goal. This is clearest in the realm of trade policy. Trump rode to victory by railing on NAFTA—once the darling of the New Democrats’ global economic agenda—as a bad deal for American workers. He similarly bashed the World Trade Organization and decimated its core judicial body, often to the applause of many Democrats.
As with war, Trump’s rhetoric, and the perception of its electoral success, had incalculable effects in bringing once-unfashionable beliefs from America’s extremes to its center. The Democratic platform for 2020 features a more nationalist call for industrial policy—blaming Trump tax cuts for accelerating offshoring—than seen in any presidential campaign from either side since Pat Buchanan’s and Ross Perot’s proto-Trumpian attack in 1992 on what we now call “neoliberalism.” And incoming National Security Adviser Jake Sullivan proclaimed that the Biden administration would embrace a “foreign policy for the middle class” that measured success “against a simple metric” of making “the lives of working people better, safer, easier.”https://f4b94d01a6a448c08ef10605e85954c4.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.htmlSponsored VideoWatch to learn moreSPONSORED BY ADVERTISING PARTNERSee More
Trump’s rhetorical opposition to neoliberal globalization also intersected with presidential power in revealing ways. Congress narrowly passed NAFTA in 1993 (as a so-called congressional-executive agreement that does not constitutionally require a two-thirds vote), while the WTO emerged the following year when Congress approved comparable fast-track authority that effectively transferred trade policy to the president. In the intervening two decades, the executive, under Republican and Democratic control, has advanced neoliberal ideas of economic freedom until Trump. U.S. accession to the Trans-Pacific Partnership, the centerpiece of Obama’s pivot to Asia, went on life support after Hillary Clinton was forced to oppose it under pressure in her campaign against Trump.
Not that Trump attempted to return any trade authority to Congress, any more than he supported war-powers reform while selectively opposing wars. But, ironically, the NAFTA reform that would never have occurred without him, and that barely rose above symbolism in real terms, garnered more support from Congress than any comparable trade deal, passing the House 385–41 and the Senate 89–10.
Trump’s record of using executive power to resist neoliberalism was uneven and should not be exaggerated. U.S. Trade Representative Robert Lighthizer, the mastermind of Trump’s trade policy, never stopped attacking multilateral rules and organizations as bad for American workers, and he convinced Trump to use unilateral presidential weapons aggressively against trading partners. But these moves aimed not to establish autarky but, rather, to embed free-trade principles in bilateral arrangements that Lighthizer believes better protect America’s economic interests. The Trump administration wanted “to get to the position where the U.S. is competing with countries on a bilateral basis and on a no-barrier basis, and then let the United States, let pure economics make the decision,” Lighthizer explained in 2018.
Despite this qualification, Lighthizer established a trans-partisan reset on trade that was unthinkable before Trump, albeit with an unclear sequel. “Lighthizer has changed a lot of thinking in dramatic ways, which is terrific,” Lori Wallach of the liberal outfit Public Citizen told ProPublica, adding that “he has not been able to reverse decades of boneheaded, job-killing trade policies, such that we still see a trade deficit today that’s bigger than when Trump took office, and ongoing outsourcing of jobs, despite good efforts to try and turn around a mess.”
Related to Trump’s galvanization of a rethinking of neoliberalism is his alteration of the conventional wisdom on China policy—both on the content of the trade and cyber policy vis à vis China, and the use of presidential power to achieve these ends. Trump’s basic critique of U.S. China policy circa 2016 is now more or less conventional wisdom: The United States was on the losing end of China’s entry into the WTO; China presents an extraordinary economic threat to the United States; and China’s theft of U.S. trade secrets requires much more aggressive responses than the jawboning, soft agreements, and piddling sanctions used by Trump’s predecessors.https://f4b94d01a6a448c08ef10605e85954c4.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.htmlhttps://f4b94d01a6a448c08ef10605e85954c4.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html
To meet these threats, Trump has used delegated power from Congress to impose extensive and unprecedented import restrictions and tariffs on Chinese goods. He has also used statutory emergency powers (for example, the International Emergency Economic Powers Act) in unprecedented ways to punish globally the use of products of certain Chinese information intermediaries (such as, most notably, Huawei) and to impose broad sanctions on the use of certain Chinese platforms in the United States (like TikTok). And much more than his predecessors, Trump has reconceptualized economic competition with China as a national-security issue.
While many of Trump’s exercises of delegated powers (such as his emergency wall declaration) drew broad criticism, the basic thrust of these policies, and these unprecedented uses of delegated power, gathered muted criticism from some but support from many, including many Democrats. (There were, to be sure, loud complaints about the domestic impact of responses to some of Trump’s unilateral trade sanctions.) Biden will surely examine all of these measures, and probably adjust many of them, especially the tariff restrictions. But the conventional wisdom is that Trump was largely right about the threat and the need for an aggressive response, and the policies in the round will likely continue under Biden. “We expect to be taking a stronger position on China than has been the case in past Democratic administrations,” an unnamed senior adviser to the Biden transition told The Washington Post.
Trump was calamitous for the institution of the American presidency, but through a strange combination of attack, innovation, and neglect, he reoriented it for his successors. “Fine dancing,” Austen wrote in Emma, “like virtue, must be its own reward.” The same is hardly true of executive power, especially given Trump’s vice and macabre closing number. But he changed the music, and has forced his successor to take his first steps on a very different stage.