The most revealing executive action of the new administration may have been among the least reported. President Trump, by memorandum, ordered the Secretary of Commerce to “develop a plan” under which all new, retrofitted, repaired or expanded pipelines inside the United States would use U.S.-made materials and equipment “to the maximum extent possible and to the extent permitted by law.”
Cutting to the chase, the extent permitted by law is zero. The president of the United States neither has nor ought to have the authority to tell private companies making private investments where to buy their equipment or materials. He has no authority to encourage them, pressure them or bully them. The conservative response to a comparable order from President Obama would, appropriately, have been apoplexy.
One of two scenarios is possible here: Either this memorandum is a sop to his Rust Belt base that the President knows is meaningless or, worse, it is a sop to his Rust Belt base that he thinks is meaningful. In either case, we have met the new boss. With respect to the ends of presidential power, he of course differs from the old. With respect to the power itself, he is indistinguishable.
So the point of truth arrives: Does conservatism care about the problem of authority and how constitutionalism manages it, or is it now a philosophy defined by results? If it is the latter, Progressivism—Woodrow Wilson’s Progressivism, the kind that sees the Constitution as an outmoded series of barriers to progress and the general will, and an unleashed and plebiscitary presidency as the answer—has truly won.
This would be the triumph of the doctrine of what Michael Oakeshott called “telocracy” as opposed to “nomocracy,” a regime organized toward ends rather than rules. Telocracy, Oakeshott wrote, was “a view of the proper business of governing, and not a belief about the authority of a government.” It does not disregard the rule of law, but it subordinates the law to the attainment of ends. Telocracy is ultimately hostile to law because it is a philosophy of command. Nomocracy, by contrast, is a philosophy of liberty that is not opposed to necessary power but that recognizes the need to discipline it by subjection to rules.
Those who would excuse presidentialism in the era of Trump because his policies accord with theirs yet who excoriated it under the administration of Obama because his ends were objectionable would define conservatism by telocratic goals, disassociating it from its historic concern with authority. And they had better be prepared for what escaped progressives for eight years: The power they invoke today will be exercised by other hands, for opposite ends, tomorrow.
Consider, in this context, the double voices with which many conservatives are speaking on the Affordable Care Act. When Barack Obama announced he would unilaterally delay enforcement of the employer mandate, conservatives were rightly appalled, noting that the legislative authority of the Constitution rested with Congress. Comes now Donald Trump, who on his first day in office signed an executive order directing officials with responsibilities under the Affordable Care Act to
exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation [emphasis added] of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.
That is, of course, virtually all the act. To be sure, the President has a wider degree of latitude not to enforce laws to which he objects constitutionally, though even then the authority of a constitutional officer obliged to “take care that the laws be faithfully executed” to decline to do so is questionable.
But this executive order expresses no constitutional objections, only policy goals. One of them is the repeal of the Affordable Care Act. But the proper place for repealing it is Capitol Hill, a process currently under way, with debate on the messy questions of how to go about it, including how and when to replace the law. The idea of Congressional authority over legislation—which is that this is best the work of many and diffuse hands, close to the people—is especially true in this instance.
Then there is the matter of the border wall, which he has also directed executively, apparently under the authority of the Secure Fence Act of 2006, which authorizes, as its title suggests, a fence. To be sure, it also authorizes “infrastructure improvements,” but it is difficult to see why it proceeds to specify a fence—and to specify, further, across what sections of land it will be reinforced—if the nature of the infrastructure was left to the total discretion of the executive branch.
This is to say nothing of the nettlesome question of funds, which the administration stunningly answered by announcing the possibility of imposing a 20 percent “border tax” on imported Mexican goods. (Note to White House: This means American consumers will pay for the wall.) Then the White House retreated, saying it was part of a “buffet” of possibilities, which included tariffs. Aside from matters of national security, which this is not, the President has statutory authority to impose tariffs only to address a trade deficit, not to raise revenue, which means he has the authority in this case only if the policy fails, since the purpose of a tariff would be to discourage imports and thus collection of the revenue.
Meanwhile, White House Press Secretary Sean Spicer, in math that barely qualifies as fuzzy, explained that since $50 billion of goods comes in from Mexico, a 20 percent tax would raise $10 billion. Is it necessary to explain to the Administration of a President elected for his supposed business acumen that when an activity is taxed, less of it occurs?
As to the executive order on refugees and immigration, the President has a far greater degree of constitutional and statutory authority. But even here, there is process prescribed, and for good reason. As John McGinnis notes, a 1962 executive order requires that such directives go through the Attorney General, whose authority is delegated by regulation to the Office of Legal Counsel. That process by all accounts was ignored here in a disaster of a rollout in which political operatives were making calls from which the relevant departments—Homeland Security among them—were excluded.
To be sure, all of President Trump’s orders have contained the requisite qualifications: “to the extent permitted by law” and the like. But either he thinks that extent far exceeds any reasonable interpretation of the law or the qualifier is not intended to qualify at all.
The question for constitutionalists is whether process and authority matter. They ought to, if constitutionalism is based on the idea that policy is transient, while institutions and rules endure. The early indications are not all positive. The conservative blogger Allahpundit, for example, crowed about the executive order on Obamacare:
Remember when King Barack decreed in 2013 that he would delay enforcement of the employer mandate even though the law itself required the mandate to take effect on a specific date? Conservatives like me howled that the president has no constitutional power to delay implementation when a federal statute requires it, but O got away with it. And now turnabout is fair play. If King Barack enjoyed a particular type of authority, King Donald enjoys it too. Good work, liberals.
This is the law of the playground, the constitutional theory of “they started it.” Indeed they did. Constitutionalism ought to be the province of the grownups. It has been noted that it is amusing to see progressives rediscover the separation of powers in the age of Trump. It is not gratifying to see so many conservatives so quickly forget it.