Since the election, we’ve repeatedly been told that President Trump has every right to contest the results wherever he thinks something untoward has taken place; and that, as commander-in-chief, he has every right to pull troops from Afghanistan, Iraq, Germany, or wherever he thinks best. Of course, having a right is not the same thing as being right. Delaying a transition out of petulance over an electoral loss and playing a game of Risk with American forces is, to say the least, not what we expect from the nation’s chief executive.
President Trump’s behavior has starkly revealed what might be called the “character lacuna” in the current system. The two and half months between November’s Election Day and the day a new president takes office is not a terribly long time—and certainly an improvement on the March inaugurations we had until 1937. (Imagine what President Trump might have up his sleeve if he had five months to work with.) Nevertheless, a president is still very much a president until he walks out of the White House for the last time on January 20, wielding immense resources, and comparable authority. Given a president’s responsibilities as the nation’s chief executive and commander-in-chief, there is no question that he should wield anything less. Unlike the Congress or the Supreme Court, there is a reason the executive never goes “out of session.”
The president’s discretionary authority has grown from the republic’s earliest days—but perhaps not only in the ways the Founding Fathers would have found surprising. As the federal government has grown, so too have the laws that need to be executed and administered. As the U.S. has become a world power, so has grown the requirement for presidential leadership of the country’s vast military resources and direction of its global engagements.
Per the constitution’s original design, the chief executive’s powers were to be overseen and checked, if necessary, by an equally potent Congress. There would be an institutional interest in the first branch holding the second branch accountable. But the rise of party politics unifying control of the White House and one or both houses of Congress has lessened this interest substantially. Moreover, during this lame-duck window, the normal tools that Congress has at its disposal—legislation, money, hearings—are mostly unavailable or unlikely to be effective.
The second “check” on presidential behavior was the president’s own ambition. As originally conceived, there were no limits on a president seeking reelection. It wasn’t, as we know, until after FDR that the two-term limit was formally adopted. The Founders’ logic counted on the president to align his personal interest with the longer-term interest of the nation. A responsible and effective chief executive could expect, or at least anticipate, the reward of reelection. But with no third term or a defeat at the polls, the tie of interests is cut. What matters at this point is the character of the president.
It’s routinely noted by historians that with George Washington presiding at the Constitutional Convention, delegates were undoubtedly aware that he would almost certainly be the nation’s first chief executive. And, indeed, according to one delegate, Pierce Butler, the powers given to the president were “great, and [even] greater than” he “was disposed to make them” precisely because the delegates “cast their eyes towards George Washington as President; and shaped their ideas of the powers to be given the president, by their opinions of his virtue.”
While there might be some truth to what Butler says, it’s notable how little effort the convention made to create the kind of criteria for being president—like holding substantial property, advanced age, governing or military experience—that might make it more likely that a “Washington” might succeed Washington. Indeed, the constitutional criteria (35 years old, native born and a resident of the country for 14 years) are quite minimal.
What they did spend time on was crafting the Electoral College. That system was put in place to meet two principal goals: one, to ensure the executive was not picked by the legislature to solidify the second branch’s independence, and two, to have the selection reflect the federal character of the Union, without being totally divorced from popular sentiment. In those two respects, the system is regularly successful.
If there was a problem with the Electoral College it was the presumption that the electors would be voting either for “favorite sons” whom they knew or persons of national repute—a proxy of sorts for a level of virtue required for someone to be president. As political parties became part of the American political scene, that judgment was largely left to the parties themselves. At times, this meant mediocrity, but the back-room calculations had the benefit of experienced hands on the wheel.
Since the mid-1970s, however, the parties have had less and less say over whom their nominees will be. Rather, populist-leaning primaries are nearly universally in use, meaning the race for the nomination is more like the children’s game of “capture the flag”—with an expanding field of candidates who are noteworthy less for their experience in government and more for their sales pitches to some small segment of the politically active base. The fact that Joe Biden won both his party’s nomination and the election is not a sign of the health of the system but the luck of the roulette wheel in landing this time on Red 7. What’s really problematic is not the way we elect presidents but the way we now select the candidates running for president.
Figuring out a way to introduce character into a modern liberal democracy’s electoral system is undoubtedly a bridge too far. Indeed, even the Constitution’s Framers found it impossible to square that circle. But, perhaps, the one positive thing to come out of Trump’s tenure and his lame-duck thrashing around might be that, four years from now, voters might remember this last two and half months and ask themselves not just what a candidate’s policies are but, just as importantly, whether he or she is fit for the office.
Gary Schmitt is a resident scholar in strategic studies and American institutions at the American Enterprise Institute.
Photograph by Brendan Smialowski/AFP via Getty Images.
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