Presidents Must Still Work Within Limits

After the Supreme Court's ruling that presidents enjoy total immunity from criminal prosecution for acts taken in their "core" constitutional responsibilities, constitutional experts have been warning us that we could be in for big trouble.

While agreeing with this alarm, I think we should remember that presidents still have many practical limits on what they can get away with. Those promising big changes will face special difficulties in delivering them.

Not all promises may be seriously intended. Everyone understands that we can't always take "campaign oratory" at face value.

This is what columnist James Reston was getting at in 1976 after Jimmy Carter was elected but before he was inaugurated. Reston wrote approvingly that Carter was "clearly not going to swallow his own campaign baloney."

But what if a newly elected president really means it?

Like an ocean liner with immense inertia that cannot turn on a dime, political and economic institutions have institutional inertia. They are extremely hard to change.

Candidates promising major changes will be largely unable to deliver. The checks on presidential power are not just the substantial ones listed in the Constitution.

Presidents are busy and must largely work through subordinates. The subordinates may flatter the president but won't always want the same things. They will naturally take advantage of their opportunities for creative insubordination or benign neglect of presidential orders.

President Harry Truman understood this. After General Dwight D. Eisenhower had been elected but before he was inaugurated, Truman noted: "He'll sit here [in the Oval Office], and he'll say 'Do this! Do that!' And nothing will happen." Poor Ike — it won't be a bit like the army. He'll find it very frustrating."

One of Franklin D. Roosevelt's aides wrote about the same point:

"Half of a President's suggestions, which theoretically carry the weight of orders, can be safely forgotten by a Cabinet member. And if the President asks about a suggestion a second time, he can be told it is being investigated. If he asks a third time, a wise cabinet officer will give him at least part of what he suggests. But only occasionally, except about the most important matters, do Presidents ever get around to asking three times."

A younger FDR had discovered how hard it is to change things. He had been assistant secretary of the Navy under President Wilson, and said that the Navy was like bedding: "To change anything in the Na-a-vy is like punching a feather bed. You punch it with your right and you punch it with your left until you are finally exhausted, and then you find the damn bed just as it was before you started punching.”

But what if a president replaces large numbers of top government employees (now protected by Civil Service rules) with his own people? This would be hard to do and if actually done would not be effective in getting changes the president desires.

Civil Service rules are laws enacted by Congress. Congressional cooperation would be needed to change them, and might not be gotten. And wholesale turnover of career administrators would replace experienced, capable experts with people whose principal virtue is (claimed) personal "loyalty" rather than competence.

The new people, too, would have to work thorough competent subordinates with immense ability to resist them. They wouldn't get much done. One can't fire everybody!

If this is the "deep state" at work, more power to it! It is extremely dangerous to try to change a complex society too quickly.

True conservatives recognize that institutions built up by long experience will beat theoretical panaceas nine times out of ten and that slow progress is better than upsetting the apple cart and turning back the clock.

We should all vote, of course, for the candidate we consider even slightly better. Think. Vote. But don't panic.