Scratch another mark on the wall. We’re three hundred and some days into this endurance trial of a presidency. That’s ten months down with only another thirty eight to go. What’s more: Planet Earth is holding together, give or take a leaking oil pipeline or racial slur. North Korea is still enjoying temperatures on the milder side of fifty million degrees, Alabama has not yet elected an (alleged) paedophile into the Senate, and American footballers can still “take the knee” whilst Jared had not yet taken the fifth. Even Donald Trump’s behaviour has tracked a fairly linear path from odd to crazy.
Yet if we seem to be coping thus far, the same cannot be said of America’s federal government. Like some robot built by IKEA to drop a million artificial buttocks onto a sofa in order to test its build quality, the Trump administration has been bouncing the stuffing out of central government. That America is still functioning after ten months of this president is proof that the Constitution was built to last. The First Amendment remains a bulwark against Trump’s authoritarian leanings, ensuring his attempts to undermine the press remain largely impotent. The Senate might have a bit few bust springs but it’s holding up too. The President couldn’t even get his own way on healthcare despite the Republican hold on Congress. That surely is proof of something…
Yet what we should begin to look for is the damage being done out of sight. When Steven Bannon called for the “deconstruction of the administrative state”, he foreshadowed the administration’s plan to destroy the system from within and so it has proved. Wherever the federal government was constructed around norms that had no statutory protection, this administration has driven wedges in order to exploit the weakness. Departments are now being run by people antithetical to their core values: Scott Pruitt, a climate change sceptic, at the EPA; the under qualified Betsy DeVos at Education; Rick Perry at Energy, the department he famously couldn’t remember when running for the Republican nomination in 2011. Meanwhile, the State Department is being restructured under Rex Tillerson and by “restructured” we really mean gutted and left in a state of ruin.
This past week, the latest round of extreme renovation started around the Consumer Financial Protection Bureau. The CFPB is another Obama legacy that Trump is looking to give a Trump makeover. Created in 2011 as part of the Dodd–Frank Act (three words that Republicans dislike almost as much as Trump hates Obama), the Bureau protects consumers against the excesses of Wall Street. The previous head, Richard Cordray, resigned and named Leandra English as his replacement, believing he’d done enough to ensure a line of succession. That’s when the President stepped in and appointed the current Director of the Office of Management and Budget, Mick Mulvaney, notionally leaving the CFPB with two heads.
Again we can Trump seeking to exploit a weakness, this time around the ambiguous language of the CFPB’s rule. Again the friction between government and executive produces confusion. Despite Mulvaney winning the battle as to who got through the office door and bagged the office seat first, this will surely be fought in the courts. Mulvaney believes in the CFPB about as much as Steve Mnuchin’s wife believes that leather looks best if left on a cow. Having previously arguing that the bureau should be disbanded, Mulvaney looks ready to “protect capitalism” by regulating the regulator. This looks to become another of the fights that are typifying Trump’s time in Washington, whereby the federal government is in legal conflict with the executive branch.
What these fights reveal isn’t so much that the federal government is resilient but that the system has never before been exposed to this level of harm from within. The pattern is familiar. Trump failed to get Obamacare repealed but he responded by using the Presidential Orders to scrap subsidies, knowing that Congress will eventually be forced to clean up the mess. Rather than bring government down with a single executive action, Trump exploits systemic weaknesses to cause the maximum chaos. What is also reveals is the degree to which American government was shaped by precedents rather than rules.
It all began back last December when the norms of presidential succession were quickly abandoned. With no procedure to hold the President-Elect to account, Trump chose to make calls to world leaders on unsecure lines and without input from the State Department. Then there was and remains the ongoing problem with the President’s tax returns. Repeatedly during the campaign, Trump promised to reveal his returns if elected. Again, there was no rule to ensure that he kept that promise. He has still not and now looks unlikely to ever release his tax returns. What people thought was a norm of American elections was proven to be a custom, which Trump was allowed to simply break.
The same might yet be true of The Emoluments Clause (more properly called the “Title of Nobility Clause”) which supposedly prevents members of the government from receiving gifts, offices or titles, without permission of Congress. Trump’s promised to divest himself of his business dealings and there was speculation about a “blind trust” but, again, it was held to be a norm rather than a law. Trump passed control to his sons but has been a regular user and promoter of Trump businesses, with the Trump International Hotel Pensyvannia Avenue already returning a surprising $2 million in profits this year after initial estimates suggested it would lose money.
The emoluments argument is currently before a court in Manhattan, where “Citizens for Responsibility and Ethics in Washington” are challenging Trump’s relationship to his business empire. This is no minor challenge and is being led by Norm Eisen, who served as chief ethics counsel under Obama, and Richard Painter, one of the most vocal critics of Trump, who served from 2005 until 2007 as the chief White House ethics lawyer for George W. Bush. However, until there is some ruling against Trump, norms will continue to be broken. Just last week it emerged that Senator Chuck Grassley of Iowa will be ignoring the so called “blue slip” system that allows senators from individual states to block nominations for judges to their states. Grassley’s move ensures that Trump can continue to pick the next generation of federal judges, many of whom are political appointees or, in the case of Brett J. Talley, lined up for a lifetime appointment for which the American Bar Association has said he is “not qualified”.
What we’re really seeing is the branding of federal government under the Trump name. The man that brought us Trump Steaks and Trump University now brings us “Trump Government”; government that over promises and under delivers. What is also clear is that the President continues to rule by diktat and will stretch every rule. Back January, we feared that Trump would go to war with the world. Come December, the reality is that he’s going to war against the United States of America and that the first causality might well be the federal government.
