My title is a labored pun on the title of a famous paper by Ken Shepsle entitled Congress is a “They,” not an “It”: Legislative intent as oxymoron. It makes little sense to treat a collective body as a single entity when determining “intent,” he scolds law professors. Watching the Trump administration flounder around, I realize that the same point can be made about the president—and not just Trump himself.
Trump’s problem is that he lacks the personal capacity to supervise the executive branch. He’s appointed a bunch of people as he must, hoping no doubt that they will divine his intentions and carry them out, but those people all disagree with each other. They must either resolve their disagreements through debate or carry on separately, committing the presidency to mutually inconsistent policies that confuse foes and allies alike.
Thus, we see people like Tillerson, Mattis, and Pence assure allies that the United States will uphold its NATO commitments, while Trump himself, channeling Bannon, says he wants to tear them up. Bannon also wants the U.S. to withdraw from the Paris climate agreement, while Tillerson and Ivanka Trump want the U.S. to stay in. On immigration, a range of possible positions have cycled through the airwaves—temporary bans on certain Muslims, on lawful permanent residents or not, a reduction of legal immigration, or a path to citizenship for DACA beneficiaries. Obamacare will be repealed, repaired, left alone, renamed Trumpcare. Taxes will be simplified or complexified, raised or lowered. Making the best of the confusion, Trump’s subordinates assure us that Trump is mature enough to welcome disagreement.
Trump is not the first collective president. He is the 45th. (Or 44th if you count Grover Cleveland as one rather than two presidents.) Lincoln’s chaotic administration was celebrated as a “team of rivals.” Franklin Roosevelt tolerated contradictory policies in the New Deal: this was much-needed “experimentalism,” or so it was said. Reagan famously couldn’t make a decision until his obstreperous subordinates reached a consensus and then told him what to do. But these guys were able to get a handle on things in a way that looks increasingly unrealistic for Trump.
The collective nature of the presidency complicates the standard arguments, going back to Hamilton, that the president should have primacy over Congress because, as a single agent, he can act more swiftly, secretly, and decisively. But while the president is legally a single agent, in practice he needs the support of his aides, which requires him to make concessions to them where necessary. He doesn’t just listen to their advice and make his own decision.
Trump hasn’t moved swiftly, secret, or decisively except by imposing a travel ban that was immediately blocked by the courts. Not swiftly because his subordinates can’t agree. Not secretly because his subordinates use leaks to undermine each other. Not decisively, because Trump doesn’t have a strong set of principles that he can use to resolve disagreement among his subordinates. Hamilton must have assumed a president with stronger skills and more developed views than Trump’s.
Of course, Congress is in even worse shape, with hundreds of nominally equal members. Its leadership needs a strong president to set direction for legislation. Not only is Trump unable to set a direction, but it must occur to Ryan, McConnell, and others, that Trump cannot even be trusted to sign a tax, health care, or immigration bill that embodies his (current) preferences. What Trump and his subordinates can agree to at time 2 is not necessarily what one or more of them say at time 1, especially if scandal-plagued subordinates are constantly circulating in and out of the administration. With a weakened presidency, one might predict that Congress would seize the reins of government. Gridlock and drift seem more likely.