How Trump could trigger the third constitutional presidency

Less than a month into the second Trump presidency, we may already be witnessing a fundamental remaking of the constitutional presidency. President Donald Trump’s primary agenda in his first few weeks has been to use executive orders and memos to dismantle the executive branch he was elected to control. He has frozen congressionally allocated funds in violation of federal law and fired thousands of federal employees who perform important work, to name just a few actions. As these demonstrate, Trump brings with him a style of leadership that risks transforming the entire constitutional structure, and the president’s role in it.

The presidency has gone through several important developments throughout its history, and now we may be witnessing the next. This development could push our constitutional order increasingly far from a collaborative, interbranch democracy and toward a structure that expects a strong and slapdash presidency. Meaning, the next constitutional presidency may be antithetical to the Constitution itself.

In 1987, political scientist Jeffrey Tulis published “The Rhetorical Presidency,” uncovering in his research a fundamental transformation in the constitutional presidency in the early 20th century. Where 19th-century presidents were typically more muted officeholders who understood their role as a policymaker to be a complement to Congress, early 20th-century presidents like Teddy Roosevelt, Woodrow Wilson and Franklin Delano Roosevelt began to engage more with the public. Tulis refers to this development — the birth of the rhetorical presidency — as the second constitutional presidency. The new character of presidential leadership has changed the office of the presidency but is in perpetual tension with the original constitutional presidency that cannot wholly be vanquished because of its constitutional underpinnings.

The rise of the rhetorical presidency marked a change in public understanding about the presidency’s purpose and corresponding expectations about presidential performance. A president with a different style would appear anomalous and unusual — a failure, perhaps. A president who did not speak “over the heads of Congress” and engage frequently with the public would fall short of the public’s new understanding of what a president ought to do.

Against this backdrop, President Joe Biden’s lackluster public approval makes more sense. Biden was not derelict in his presidential duties that the Constitution requires — he showed up to work and took care that the laws were faithfully executed. Of course, he made choices that not everyone liked. But that’s normal and expected behavior for a president. Biden’s real deficiency, therefore, was not in the duties given to him by the constitutional presidency, but in his rhetorical duties. He was not a successful rhetorical president. His apparent declining cognitive abilities and lifelong stutter meant that Biden was not able to live up to what the public today demands of a president: a forceful and powerful rhetorician with sharp remarks, a clear command of the room, and frequent public-facing comments. Because of the rise of the rhetorical presidency, the public now expects presidents to frequently engage directly with the public in person and on camera. Because Biden did not do that, he looked to many like a weak president or a bad president.

The rhetorical presidency is a “constitutional” development in two senses. First, it is now so deeply embedded in American politics that the Supreme Court included the president’s rhetorical duties among his “official acts” for which he is entitled to immunity from criminal prosecution. Second, and more fundamentally, it changed how the constitutional system works. Presidents increasingly are treated as the leaders of their parties and the driver of the government’s policy agenda. They are expected to have a policy platform, rather than simply be a good manager of government administration. And this has meant an increasingly prominent national executive.

Simultaneously, we live in the world of what historian Arthur Schlesinger called the “imperial presidency,” what he saw as the gradual presidential rejection of the constitutional limits on presidential power, especially in the arenas of foreign policy and war. Trump’s refusal to rule out using military force to take control of Greenland and the Panama Canal is but one illustration of the imperial presidency’s possibilities. But where Schlesinger was principally concerned with the erosion of legal limits on a president’s power, Tulis sees a parallel transformation in the nature of the presidency itself — a “metamorphosis” of the institution, not just a change to the president’s legal authority.

Still, it would be a mistake to assume that Trump is just another in a long line of presidents operating in the era of the imperial and rhetorical presidencies. Although he has real trouble offering accurate information and answering questions clearly, Trump satisfies the public’s need and growing expectation for a president who engages frequently and directly with the public.

Trump’s style of presidentialism is to govern by executive order, memo, threat and social media. This practice ignores laws that Congress passed and renders Congress itself largely irrelevant, reduced to a club for both loyal spokespeople and particularly vocal opponents. It sees Supreme Court opinions constraining executive power as challenges to be overcome. It sees rapid movement and quick results as not just preferable but expected. It sees the Constitution as fungible, or even sometimes wrong.

The enormous and obvious question is: Will Trump’s new style truly mark the next development in presidentialism? Will his style become so deeply embedded in narratives espoused by the public and the media that it will effectively transform the office of the presidency? Is Trump’s presidential style the next rhetorical presidency? Are we witnessing the formation of the third constitutional presidency?

If so, any president who enters without promises to fire everyone their predecessor dared hire, without a mission to steamroll government, will risk being seen as a failure who can’t live up to the steep demands of the office. Any president with more modest goals than enormous territorial expansion, upending decades of established administration, and breaking through previously unthinkable norms and institutional guardrails risks being punished at the ballot box.

Under this edict, the government will be understood to be presidency-focused. Congress will increasingly be expected to do what it has for the last few weeks — sit idly by while the president ignores decades and even centuries of duly enacted laws. Congress will be little but a space for those seeking the presidential office to polish their skills and hone their platform for remaking America in their image.

Less than two months into his term, it’s hard to say for certain whether Trump’s presidential style will be the next rhetorical presidency and fundamentally transform how the public understands the office. We cannot yet be sure that Trump will precipitate the third constitutional presidency.

But what made the rhetorical presidency stick was the public’s acceptance of the ideas that undergird it. In a sense, normalizing the narrative of the rhetorical presidency has made it a lasting political development. Accepting the narrative of Trump’s presidential style and accepting its ideas as compatible with the Constitution will make it more likely to be permanent. It will mean that Trump’s presidential style will become the norm rather than what it presently is — a deeply problematic threat to the constitutional order we have long held dear.