The Institutional Presidency and its Modern Application: An Interview with Professor William Howell

William Howell is the Sydney Stein Professor in American Politics at Harris School of Public Policy and a professor in the Department of Political Science at the University of Chicago. This quarter, he is teaching an undergraduate course titled “The American Presidency,” that explores the issues of governance, power, and the institutional nature of the presidency. His scholarly work has focused largely on the presidency as an American political institution, and the idea of a government centered around a separation of powers. The Gate’s Dylan Wells and Saisha Talwar sat down with Professor Howell to discuss historical precedents and their possible impact and influence on the Trump presidency.

The Gate: Could you describe the conventional wisdom associated with the evolution of the modern presidency and how your book, An American Presidency: Institutional Foundations of Executive Politics, differs from this traditional notion?

Professor William Howell: I think there's a widespread recognition among scholars that presidential power today is considerably more expansive than it was a century ago. You see presidents engaged in policy domains that they weren't engaged in before, exercising powers today that they didn't have before. They are a focal point of attention and action today in ways that they were not in the nineteenth century.

Much of my work attends to questions that have to do with the conditions under which presidents can effect change, and the conditions under which Congress, the courts, the bureaucracy, or the broader American public stymie these efforts to change public policy. Most of my work is institutional in nature. I try to think about the ways in which elections shape opportunities for presidents to effect change, the ways in which the incentives are built into the offices, and how resources are accorded to the office that affect opportunities for presidents to change policy legislatively, unilaterally, by engaging state governments. In that sense, I think my work broadly comports with where the field of presidency scholarship is right now. Much of that work recognizes that presidential powers are ascendant and takes an institutional view of what those powers are.

Gate: If you had to compare Trump to one of his predecessors, would you say who he is most similar to and why?

Howell: I think it's the very person whose portrait Trump has decided to put into the Oval Office, which is Andrew Jackson. If you had to pick not a presidential candidate but an actual president, he embodies more than any other president the populous sensibilities that Trump likes to hold high and dear. But it’s worth I think pausing and asking, what is it about him that's unprecedented? Because there are some facets that are perfectly recognizable. He's not the first person to traffic in racial appeals. He's not the first presidential candidate or president to exercise unilateral powers. He's not the first president to disrupt existing coalitions and to call out a political class of experts that has disconnected with the American public.

I think to my mind what is new is the level of inexperience that he offers. He has less political experience than any president we have ever had. Certainly in the modern era, his temperament is like no president we've ever seen before. Plenty of presidents have found ways to communicate directly with the public—that goes back to FDR and these fireside chats—but there's an impulsiveness associated with his communication that is for some people really refreshing, and for other people really alarming. The last thing I'll say is that from what we've seen in his first two weeks, what is different is his willingness to exercise lateral powers with abandon, without a mind toward how bureaucrats will interpret his actions, how members of his own administrations will or will not defend them, and how a judiciary is likely to respond. So the dust-up that we've seen the last two weeks is like nothing we as a country have seen for a president so early in their first term.

Gate: Can you speak towards past efforts to overturn or amend executive orders, and under what specific circumstances unilateral action is most often contested?

Howell: These are subjects that I explored in my 2003 book called Power Without Persuasion: The Politics of Direct Presidential Action. In that book I tried to make sense of the institutional checks that define the boundaries of the president's unilateral powers. The presidents, in principle at least, can write whatever they want into an executive order, and simply issue that order, and for if only a moment, it will retain the weight and law of a statute. That is, it will be binding on those bureaucrats that it targets, but Congress and the courts have every opportunity, and sometimes every incentive, to check the exercise of those powers. A statute can always override an executive order, or a unilateral directive, just as the courts are free to step in and amend or overturn something the president does.

What we see, if you look at the historical record, is that most of the time Congress and the courts don't amend or overturn. The percentage of executive orders that triggers a congressional response is really quite small, and those bills that are introduced to amend or overturn an executive order usually fail. In federal judiciary, at the district, appellate, and Supreme Court level, cases that were brought before the courts to amend or overturn an executive order come out in favor of the president about 83 percent of the time.

Then the question is, what do we make of those findings? One story is that the president can get whatever he wants. His Congress rolls, and the courts get out of the way. That's not the right conclusion to my mind. Rather, much of what happens is that presidents act strategically. They anticipate what a likely congressional or judicial response is going to be, and they adjust their actions accordingly. They don't want to be overturned. There are political costs and policy costs associated with a reversal. So they scale back their ambitions in light of a Congress or a court that's likely to reverse them. The fact that in the aftermath we don't see reversal isn't evidence of congressional or judicial weakness, but rather of strategic behavior on the part of the president, which is why I say these last two weeks are so striking, because there doesn't appear to be much consideration of those possibilities by this president.

Gate: Do you think that President Trump was not acting strategically in his implementation of executive orders, considering the recent pushback by state department officials and federal judges

Howell: There are two stories that we can tell. One is that what we're observing is the behavior of an inexperienced neophyte in the White House who has no understanding of the president's place in the larger system of separated powers, and is making mistakes. It is a mistake when members of your own administration have to come out and clarify and roll back an executive order that they learn about in the news. It is a mistake when you see a federal district judge coming out and issuing a stay within hours of an executive order being issued. It suggests that Trump didn't do the kind of advanced work that's needed in order to most effectively exercise these powers.

Alternatively, it may be that Trump is quite deliberately trying to escalate a fight. He's trying to expand the boundaries of political contest in which the gains are not to be found in policies that are advanced today, but rather in the restructuring of the polity along terms that he sees as being more favorable tomorrow. His ambitions go way beyond simply trying to protect the borders and change the regulatory process at the margin in the ways that these recent executive orders have tried to do. Rather, as he put it in his first inaugural, he might want to bring the power back to the people in some deep fundamental way. Maybe there is some grand strategy that he's playing out.

To my mind, most of the evidence is more consistent with the first explanation. Occam's razor would suggest that you should take the simplest explanation that's available to you, and that was pretty simple and straightforward. But I wouldn't rule out the possibility that the relish that he shows for a fight isn't just expressive—it isn't just a function of his own temperament—but may reflect some larger strategic considerations not just by him, but by his administration.

Gate: In your book, Relic: How Our Constitution Undermines Effective Government—and Why We Need a More Powerful Presidency, you mentioned the need for a more powerful presidency. Could you explain what exactly you mean by this, and specifically in terms of Trump’s presidency?

Howell: I put out an essay with my co-author, Terry Moe, that was published in Prospect magazine and that addressed precisely this question. Our book Relic, which came out last year, tries to think seriously about the sources of government dysfunction and think about what might make for a more effective government. By effective, we mean a government that's more responsive to problems that the public sees as the legitimate subject of government action, and that works. That means that we can do something about tax reform and climate change and rising inequality in a meaningful, concerted way. What we argue is that the inability of government to attend to those issues is not a modern phenomenon—it's exacerbated by things like partisan polarization by the rise of interest groups. Even if you get rid of partisan polarization and rise of interest groups, you have a constitutional structure born in a historical period that looks radically different from today, and that virtually guarantees that we're not going to be able to effectively address national and international long-term complex issues, because it puts Congress and all of its parochialism at the very center of American government.

The book walks through ways in which members of Congress are, by institutional design, parochial and short-term in their thinking. They don't pay attention to the ways which policies cohere and hang together in a logical manner. Presidents, by contrast, are more attentive to national concerns, because they face a wider constituency; they are more attentive to long-term considerations because they care so much about their legacy; and they care more about the ways in which policy and government structures hang together in a coherent way, because they sit alone atop their governing institution. Not that presidents are perfect, and not that we should give them all that they want, and not that they don't make mistakes, but they offer a different kind of perspective.

The book makes the argument that when we think about who ought to be setting the agenda, presidents ought to be included. Members of Congress are the only people who can formally propose legislation that pushes presidents and all the priorities and concerns that they channel to the periphery of the law-making process. Terry and I think that that shouldn't be the case.

This is not a generic argument on behalf of a larger more expansive presidency. It's about agenda-setting power that presidents, we think, ought to have, that they do have in trade policy. We've learned a lot about what effect that has had on taming short-term parochial concerns when it comes to trade policy, which for the most part has been for the good, and that that ought to carry over into more policy debates with Trump. Then you say, "Uh, but now we've elected Trump. Why would you ever want to invest more authority into an office when somebody of his temperament and his outlook occupies it?"

Two things (there are many more than two things, but let me suggest two). The first is that conversations about institutional reform should not proceed from fears about, or hopes for, any one individual. This is a long-term argument about the machinery of government and how we think about how we might design a government that can attend to very real pressing problems that we as a country face. Point number two: If you're horrified with the spectacle of a Trump presidency, I would counsel you to resist the temptation to say what we ought to do is lock everything down and make sure he can't get anything done. Because how did we get Trump? How is it that somebody who is as disruptive as he is, and as intemperate as he is, and as inexperienced as he is actually won the presidency? A big part of the answer is that large portions of the American public feel disaffected and angry about the state of American politics, and they feel disaffected and angry in no small part because our political institutions aren't working. They aren't attending to the very real problems that they face. People who felt this way may or may not have been misdirected when they decided to cast their votes for Trump, but the votes that they did cast for Trump reflected these underlying concerns about the capacity of our government to govern.

If you’re worried about the possibilities of [more] Trumps coming along, the strategy of ensuring an incoherent, ineffective government set upon itself—that strategy is not available to you. There's no comfort to be had in moving in that direction, because that invites the very kinds of demagoguery and disruption that the likes of Donald Trump present.

Gate: Speaking of national sentiment and the kind of political climate in which President Trump was elected, what is the most influential precedent you think the Obama administration set? How it has affected the Trump presidency thus far or how might it in the future?

Howell: Every president participates in a larger project that involves expanding the arsenal of the powers available to them. All presidents look for ways to innovate, to think about new ways in which they can effect policy change in this political environment wherein Congress has the power to set the law of bureaucracy—not of any individual president’s making—and has the power and considerable discretion to implement as they see fit, and judiciary often stands in the president's way. Presidents all look for ways to innovate. There are lots of things that Obama did that attracted a fair bit of attention, involving drones, involving war-making, unilaterally escalating and de-escalating wars in Iraq and Afghanistan, and the rapid-fire directives that were meant to expand the number of regulations over industries that were doing things to harm the Earth and harm the climate. To my mind, that's all in keeping with past precedent.

The thing that Obama did to my mind that is most noteworthy—the way in which he innovated—is in the domain of education policy. He did a couple of things. Let me underscore the one that to my mind is the most important one, which is that when Obama was in office, the way in which federal government was involved in matters involving education was through No Child Left Behind, George W. Bush’s signature domestic policy achievement. This is a bill that both Republicans and Democrats alike have lots of concerns about, and yet Congress proved either unwilling or incapable of reauthorizing and making the changes needed to update it in light of new concerns and learning about how it actually had been implemented. Rather than engage Congress in a concerted way to ensure that they did update it, Obama spent years working around it, and he worked around it first through the Race to the Top initiative, which was a really creative use of a small amount of money in order to change the policies that states had adopted in education policy.

The thing that is most striking to my mind is that when that money ran out, he stepped forward and offered waivers to states that said, “Look, I'm going to relieve you of the most onerous provisions of this law.” Obama had the statutory authority in order to provide those waivers, but he took it one step further, and he said, “I'm going to provide you that waiver conditional upon your willingness to adopt a policy that I think you should adopt.” Those policies often were not to be found in the original statute.

So in this way, in negotiating with each state one at a time, he dismantled a federal statute and then erected a set of practices within states that didn't conform with that statute, all without Congress's formal involvement. That's new. Typically, what we're accustomed to seeing is that statutes always trump unilateral directives. Unilateral directives stand in the shadow of statutes, and yet what we saw under Obama is an effort to work around a statute by exercising his unilateral powers through waivers. I'll be interested to see how waivers as an initiative are deployed, if not by Trump, by then some subsequent president, in order to work around statutes that they don't like but that they lack the majorities that they need in order to override themselves within Congress.

Gate: You mentioned some advice that you would give to those who don’t align with the President’s policies and are eager to oppose him. Do you have any advice or cautions you wish to offer to the University of Chicago student body and specifically those members who may be frustrated at the election results?

Howell: Let me say two things. First, is if I said it's not going to affect us, that's not so. There are ways in which we are insulated. We are not as vulnerable as other public institutions are. Our prominence and wealth give us strength and a voice that other institutions lack. In that sense, we have certain advantages, but we've already seen ways in which Trump's presidency is directly affecting lots of students and some faculty here on campus, that this immigration ban is a very big deal, and I think a lot of people here are concerned in a principled way and fearful about the ways in which this kind of ban may affect them and people who they care about and principles that they hold dear.

My own sense is that the threat that Trump presents to our democracy, to a set of efforts initiated by the Obama administration to attend to problems like climate change, to our discourse, to our convictions about the importance of truth, is so great and so total, that on the one hand, it can feel utterly suffocating, and on the other hand, there are opportunities all around us in order to offer a form of resistance. That resistance may take the form of going to Washington and protesting, or walking the streets of Chicago and protesting, but to my mind, it can also take the form of doing the work of the humanities. If what you want to do is resist nativist appeals, what could be more powerful than literature, and poetry, and the arts, which reveal features of our shared humanity across lines in our daily lives we may not see? That is incredibly powerful and is part of a much larger effort to serve a set of cosmopolitan and progressive sensibilities.

The cautionary tale, I would say, is to go back to what we were saying before. The idea that what we ought to be doing is stripping all the powers that the president has and reflexively claiming that every exercise of authority that he draws upon constitutes a gross abuse of the Constitution, is short-sighted, because I think most people like it when your guy or your gal is in office, but you don't like it when the opposition is. But we live in, if not a democracy, then at least a republic, and we don't always get the person who we want into office. That isn't to say that there aren't ample opportunities and ample need to resist, and that resistance can take many, many, many different forms.

This interview has been edited for content and clarity.

The image featured in this article is licensed under Creative Commons. The original image can be found here.