IT'S LONG PAST TIME TO ROLL BACK PRESIDENTIAL POWERS.

In The Wall Street Journal, Andy Kessler prays for Donald Trump to channel his inner John Tyler, and plead inability to find that line in the Federal Constitution authorizing the latest in wishful thinking.

Expectations for a second Trump term include mass deportations, threats against allies, and huge tariffs on Chinese products. But what will be Mr. Trump’s legacy? Let’s face it, someone who splashes his name on tall buildings across the country cares about legacy. How does Mr. Trump change his legacy from authoritarian blowhard to transformative president? Simple. Go rogue. Do something no one ever thought he would do. Like Nixon going to China. Or “Bedtime for Bonzo” Hollywood actor Ronald Reagan becoming a free-market, Soviet-busting genius.

In the cases of Nixon and Reagan, there was an intellectual foundation for going to China or speaking of transcending Communism. Somehow a career rent-seeker using eminent domain to clear land for a failed casino isn't an auspicious beginning for what Mr Kessler prays for.

Reduce the power of the executive branch. Mr. Trump told Sean Hannity he plans to be a dictator for only a day. Fine, close the border, end DEI, get NATO partners to pay, cancel Mr. Biden’s executive orders, and reverse his industrial strategies, er, policies. But then pull the ladder up behind you so no future president can repeat the Biden administration’s power grabs.

Guard future generations against a strong president—or, worse, a weak one like Mr. Biden taken over by unelected administrators. The Constitution says legislators make laws, the executive branch enforces them, though it often doesn’t seem that way. Mr. Trump can make sure there are no more Obama “I’ve got a pen and I’ve got a phone” situations.

That is difficult, because a lot of the Public Purposes that Congresses deem Worthy of Attention are either Excessively Compelling or Ill Conceived, and Congresses pass and presidents sign legislation creating new Swarms of Officers to Harass the People and Eat Out their Substance, while leaving the enforcement to the Officers Themselves, in the form of "The Secretary shall issue Regulations" language.  Moreover, in political economy and public administration, you will encounter people making the argument that such delegation is necessary as no Congress can draft the proper set of policies for all time and the agency charged with enforcement has to be able to adapt, either to changed political and economic circumstances, or perhaps to a new boss in town.

That noted, perhaps the best reason for the Supreme Court to get rid of Chevron deference might be to make Congress more careful about delegating powers properly theirs to the administrative state, or to the next elected dictator's pen and phone.

Some of this is already happening. The Supreme Court in West Virginia v. Environmental Protection Agency used the “major questions doctrine” to curtail executive-branch regulatory power. The justices may soon limit the Chevron deference doctrine and further restrain executive-branch regulators. Presidents can’t appoint special envoys without Senate approval anymore, though Mr. Biden ignored this when appointing John Podesta climate special adviser.

Mr. Trump can lead the dismantling of our post-Franklin D. Roosevelt kinglike presidential platform. It would almost be Washingtonian, the man who refused to be named king. It would certainly be anti-Biden.

Limited government lets the private sector flourish.

That might be, although a closer reading of Mr Kessler's wish list makes clear that sometimes the biggest opponents of free minds and free markets are business owners and managers who would like those annoying competitors (think Chinese social media or German steel) brushed away.  Yes, his peroration is inspiring, but will we see any of it from Donald Trump?

Free ideas—expression free from DEI and ESG diktats. Free opportunity—no discrimination, period. And finally, freedom from parasites—the administrative state.

Use the bully pulpit to dismantle the too-powerful platform behind you. Work with Congress to pass laws defining hard limits on executive power. The presidency, I’m against it. And yes, I know, this all sounds far-fetched, but can’t a boy dream?

Reason's Gene Healy, yes, he of Cult of the Presidency fame, would also like the obsession with Presidential Powers to end.   "The modern presidency is a divider, not a uniter.  It has become far too powerful to be anything else."  But can it?

The former president's apocalyptic rhetoric and rageaholic antics aren't what made the presidency itself a central fault line of American polarization. It's the fact that the president, increasingly, has the power to reshape vast swathes of American life. The modern presidency, by its very nature, is a divider, not a uniter. It has become far too powerful to be anything else.

Over the past several decades, as our politics took on a quasi-religious fervor, we've been running a dangerous experiment: concentrating vast new powers in the executive branch, making "the most powerful office in the world" even more powerful. Fundamental questions of governance that used to be left to Congress, the states, or the people are now settled, winner-take-all, by whichever party manages to seize the presidency.

Worse still, recent presidents have deployed their enhanced powers to impose forced settlements on highly contested, morally charged issues on which Americans should be free to disagree. In the age of identity politics, the modern president has become our culture warrior in chief. Unless and until he's disarmed, we'll have "uncivil war" and American carnage from here to the post-apocalyptic wasteland.

The "former president" he refers to is Mr Trump: skeptics of the office may find their own examples of "apocalyptic rhetoric" and "rageaholic antics" in old clips of Bush the Younger or Obama the Messiah, and when he's fully caffeinated, Dementia Joe is filling up the files with similar stuff.

I wonder, though, whether both parties might see in some clarity from the High Bench a way to reverse the escalations of Presidential Power.

As a future Supreme Court justice, Elena Kagan, noted in a 2001 Harvard Law Review article, "Presidential Administration," modern presidents have accrued significant power over regulatory policy, "making the regulatory activity of the executive branch agencies more and more an extension of the President's own policy and political agenda." The process began when bright lawyers in the Reagan administration saw increased presidential authority as a way to ride herd on the regulators and lower burdens on business. But what goes down can come back up, and rise to new heights: As Kagan noted, the president's administrative authority works just as well to push "a distinctly activist and pro-regulatory agenda."

The original constitutional design required broad consensus for broad policy changes, but as law professors John O. McGinnis and Michael B. Rappaport warned in an important 2021 article in the Ohio State Law Journal," Presidential Polarization," presidents now "can adopt such changes unilaterally….Domestically, Congress's delegation of policy decisions to the executive branch allows the President's administration to create the most important regulations of our economic and social life. The result is relatively extreme regulations that can shift radically between administrations of different parties."

Presidents have become our primary policy makers. Whenever the presidency changes parties, McGinnis and Rappaport note, "rules affecting almost every aspect of American life will pivot 180 degrees." The shift from Obama to Trump, for example, carried with it reversals on net neutrality rules, fuel economy limits on new vehicles, and which immigrants can come to the United States, as well as new rules governing free speech disputes and sexual assault claims on college campuses across the country.

What's more, legal changes made by presidential decree may be locked in for as long as the president's party holds the office—even when there's majority support in Congress to overturn them. Attempts to rein in presidential lawmaking must themselves run the gauntlet of the ordinary legislative process, subject to presidential signature or veto. The default setting of American government has shifted toward presidential unilateralism. The president now enjoys broad power to do as he pleases unless and until Congress can assemble a veto-proof supermajority to stop him.

The current dispensation exists to provide maximum frustration. I fear, though, that until Congress has to exercise the oversight it's supposed to, under Article I, do, we'll continue with the current dispensation in which the Obama executive orders get Trumped, and then the Trump executive orders get undone, process without end.  And it's terminally silly.  "Decisions about what goes on school library shelves should be made at the local level, not forcibly dictated from the state house. Still less should those decisions be dictated from Washington, D.C." 

Unfortunately, and this is likely to disappoint Mr Kessler, the Trump presidency is all about over-Trumping the executive orders that the Jarrett regency has saddled us with.

Strap in, because it's about to get worse. The increasingly influential "national conservatives" have nothing but scorn for those who want to limit government power and force the feds to mind their own business. Their aim is to seize power and wield it against their cultural enemies, waging war on the Conan Principle: Crush your enemies, see them driven before you, and hear the lamentations of their transwomen.

Trump is coming down that escalator again, on a mission of vengeance. He'll take [the civil rights bureaucrats] off the "book ban" beat—and instead sic them on teachers who cover critical race theory, transgender issues, or "other inappropriate racial, sexual, or political content." They'll face "severe consequences" under federal civil rights law.

As recently as 1996, the Republican Party platform acknowledged that "the federal government has no constitutional authority to be involved in school curricula" and called for abolishing the Department of Education. Now their standard-bearer wants to use $79 billion in federal education funds to work his will on thousands of local school districts. The federal government has no constitutional authority to set qualifications for teachers either, but Trump promises to "create a new credentialing body to certify teachers who embrace patriotic values and the American way of life."

Standard administrative state stuff, never mind that the use of public money in education is censorship per se, and if we can't separate school and state, perhaps we can devolve the school functions to the local school boards, where parents can stir in whatever extracurriculars they want, and learn for themselves what happens when they shortchange their spawn on the basics.

Puberty blockers and drag queen story hours go from compulsory to forbidden every four to eight years, depending on which political party wins the presidency. At some point you have to ask yourself: Is this any way to run a country?

It's not just stupid; it's dangerous. About 60 percent to 70 percent of Democrats and Republicans now view their political opponents as "a serious threat to the United States and its people," while 42 percent say the other team is "not just worse for politics—they are downright evil." As McGinnis and Rappaport note: "The imperial administrative presidency raises the stakes of any presidential election, making each side fear that the other will enjoy largely unchecked and substantial power in many areas of policy."

Politics divides. Is it too much to ask that politics divide us less?

Every election becomes a Flight 93 election: Charge the cockpit, do or die.

We should be heading in the opposite direction: limiting the damage presidents can do, lowering the stakes of presidential elections, and reining in the president's ability to make law with the stroke of a pen.

One hopes that Americans will rediscover the "better angels of our nature," put politics in perspective, and rediscover what unites us. Pending that moral awakening, our more pressing need is for structural reforms that limit the harm we might do to each other amid the fog of partisan war. Chief among those is reining in the powers of the culture warrior in chief.

As a side benefit, such developments mean less hysterical crisis-mongering by the Drive-Bys, as well as a reduction in the influence wielded by the regulars on the cable news political panels, and the talking heads on the Sunday shows.