It has become one of the most familiar rituals of the Trump restoration, an almost monarchical and medieval observance. Instead of a quill, the President picks up one of the Sharpie felt-tip pens, flourishes his distinctive signature and then brandishes the leather-bound document in front of the press as if it were some ancient parchment. Another executive order has come from his hand. Signed, sealed and delivered by Donald J Trump, with a scrawl which resembles the readout from a lie-detector machine.
These documents come with the force of US law. Already, Trump has signed 291 executive orders during his second term – well over a hundred more than Joe Biden issued during his entire four-year term. Once again, the President has usurped the power of lawmakers on Capitol Hill, altering the balance of the US constitutional system in his favour.
As the midterm elections fast approach, the Republicans and Democrats are fighting for control of an incredible shrinking Congress. Throughout Trump 2.0, Capitol Hill has become a sideshow. Whether starting a new war with Iran, seizing the former Venezuelan dictator Nicolás Maduro in a raid on his compound in Caracas or even seeking to re-write the Constitution by banning birthright citizenship, Trump has ridden roughshod over Washington’s 535 voting members of Congress. When Trump has been stopped in its tracks, it is the courts which have done the blocking. While Trump has increasingly governed like a king, Congress has largely abdicated its role as a check and balance on presidential power.
To build his cherished ballroom, Trump should have first sought approval from Congress. Needless to say, he did not bother. The President has shuttered an entire government department, the US Agency for International Development, that was established by an act of Congress, without any meaningful pushback from Capitol Hill.
To continue his war on Iran, US law stipulates that Trump requires congressional authorisation. The 1973 War Powers Resolution, which was brought in during the Vietnam era after successive presidents expanded the war in south-east Asia without consent from Congress, is unambiguous: a president can only use military force without congressional approval for a period of 60 days. When that legal deadline came in May, however, Trump speciously claimed a ceasefire was in place which stopped the clock. Democratic lawmakers protested. Republicans assumed their usual position, and bowed before the President. Here, there is an irony. A swathe of Republicans now stand to lose their seats because of the spike in fuel prices brought about by a war they have made no effort to halt.
The Democrats do not have the numbers to challenge Trump. Most Republicans have neither the inclination or sufficiently strong vertebrae. House Speaker Mike Johnson, the Louisianan evangelical Christian who owes his elevation to Trump, acts like a snivelling courtier. Republican Senate leader John Thune, the South Dakotan who is supposed to be the “Master of the Senate”, is unknown to a majority of Americans. A Pew Research poll last year found 56 per cent of voters had never heard of him.
This is not how the Founding Fathers intended the power dynamics of Washington to work. Knowing George Washington would be the first incumbent, they granted the president significant authority – greater prerogatives, paradoxically, than those wielded by King George III in Britain. Congress, however, was supposed to be the dominant branch of government. The drafters of the US Constitution gave lawmakers on Capitol Hill the power of the purse, the authority to raise taxes, to advise and consent on international treaties, to approve presidential nominees, to conduct investigations, to impeach and remove a president and even to decide the outcome of a disputed presidential election.
The power ranking was clear. Congress would be first, the presidency would be second and the Supreme Court a distant third. Now, we have witnessed an upending. The executive is the most powerful branch. The Supreme Court, with its present six-to-three conservative majority, is second. Congress trails a distant third.
This presidential power grab predates Trump. After the end of the Cold War, US politics became more partisan and polarised, and, consequently, Congress became more gridlocked. Harder to achieve was the bipartisanship usually required to pass major legislation. Presidents therefore tried to circumvent Congress with executive orders, which are legally binding but can be reversed by their successors.
Barack Obama, after losing control of Congress at the 2010 midterms, pursued what the White House called a “We Can’t Wait” agenda. Obstruction from Republicans, he argued, left him no other choice but to govern through executive fiat. Nor did Obama seek congressional approval for US military operations in Libya, just as Bill Clinton sidelined lawmakers during the Kosovo War. Wars usually end up vesting the US commander-in-chief with more authority. The simple fact that, since the attacks of September 11, the United States has been in an almost continuous state of conflict has concentrated more power in the presidency.
Trump is by no means the first imperial president, a term which came to describe the excesses of Richard Nixon in the early 70s. But when Nixon’s criminality was uncovered during the Watergate scandal, it was a posse of senior Republicans who made the journey down Pennsylvania Avenue from the Capitol to the White House to tell him he had to resign. Not even with the wildest leap of imagination could you foresee Mike Johnson or any of his colleagues following that same path in confronting Trump. In the modern era, there has never been a time when a president has tried to be so all-powerful and a Congress has been so feeble.
All this could change, of course, if the Democrats win back the control of the House of Representatives, which seems likely, and the Senate, which now seems possible. They would use the subpoena powers of Congress to investigate alleged corruption in the Trump administration. They could block new Trump Cabinet appointees, and haul existing administration officials more regularly before congressional committees. With a majority in the House, they could even impeach Trump for a third time, although the chances of removing him from office at the conclusion of a Senate trial, where Senators serve as jurors, is next to impossible. That needs a two-thirds majority vote, and would require Republicans to turn on the President.
Democrats are not only battling for control of Congress. Something larger is at stake. They are fighting to reassert this embattled institution’s constitutional relevance.