Instead of designing a system of direct democracy that would allow the people to choose their president by a national popular vote, the founders established the Electoral College, which allocates to each state a number of electors equal to its combined (Senate and House) congressional delegation. (The District of Columbia was accorded three elector votes by the 23rd Amendment, ratified in 1961.) When Americans go to the polls, they don't actually elect the president. They vote instead for a slate of state electors, who cast the real votes.
Alexander Hamilton argued in the Federalist Paper No. 68 that entrusting the selection of the president to electors rather than the people would ensure that presidents were chosen by "men most" likely to possess the information and discernment requisite to such complicated investigations," and guarantee "that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications."
History has proven Hamilton and the founders wrong. On no fewer than five occasions, we have installed presidents who won the Electoral College, but lost the popular vote: John Quincy Adams in 1824; Rutherford B. Hayes in 1876; Benjamin Harrison in 1888; George W. Bush in 2000; and Donald Trump in 2016.
Trump lost the 2016 popular vote by a greater margin (roughly 2.8 million votes) than any president in U.S. history. His fascism represents a tyranny of the minority unanticipated by the founders, but made possible by the system they devised.
2. The Constitutional Design of the Senate
Under the Constitution, all states are allocated two senators, regardless of population. In 2016, Senate Democrats won far more votes nationally than their Republican counterparts. Nonetheless, the GOP emerged with a solid majority in the upper chamber.
Since his inauguration, Trump has used the Republican-controlled Senate to further minority rule, ramming through two conservative appointments to the Supreme Court and many more appointments to the lower federal bench. Trump also benefited from the GOP's hold on the Senate in his impeachment trial, securing a quick and easy acquittal. Seeking to protect the president at all times, Senate Republicans blocked any witnesses from being called.
3. Abuse of Executive Orders
Although the Constitution vests Congress with the power to pass legislation, presidents can issue executive orders pursuant to grants of congressional authority, or under their inherent powers. Every American president has issued at least one, dating back to George Washington's 1794 proclamation aimed at suppressing the Whiskey Rebellion. Unless overturned by the courts, executive orders have the force of law.
Ultimately, it's not the quantity of executive orders that matters, but the quality. If executive orders run afoul of Congress' law-making powers to a great enough degree, they are a conduit to autocracy.
Among Trump's most odious mandates are his Muslim travel ban of 2017; his 2018 order establishing a task force to evaluate the "operations and finances" of the beleaguered Post Service; his 2019 order imposing additional sanctions on Iran in the aftermath of his decision to withdraw from the Iran nuclear agreement; and the order issued this past May, purportedly for "preventing online censorship." Critics charge the censorship order has nothing to do with free speech, but was motivated by Trump's desire to exact revenge against Twitter for removing some of his more unhinged, conspiracy-driven posts.
On August 8, Trump announced additional orders designed to break the congressional stalemate over a new stimulus package to combat the economic devastation wrought by COVID-19. The new edicts may look benign at first glance, but they include a directive slashing the $600 per week in enhanced unemployment benefits approved by Congress in March to $400, with cash-strapped states being held responsible for doling out one-quarter of the amount. Another order calls for deferring the Social Security payroll tax, a step that could severely undermine the delicate balance sheet of the Social Security Administration in the middle of a pandemic.
4. The National Emergencies Act
Passed in 1976 as a post-Watergate reform to rein in presidential power, the National Emergencies Act has in practice been a failure, in large part because it doesn't define what constitutes a national emergency. The act accords the president complete discretion to issue an emergency declaration, as long as the president specifies at least one emergency power contained in an existing federal statute that will be used to address the declared emergency.
In February 2019, Trump invoked the NEA to redirect $2.5 billion in federal funds for construction of his shameful wall along the border with Mexico, citing an obscure section of the United States Code dealing with deployment of the Army's "Ready Reserve" units. In July 2019, the Supreme Court, in a 5-4 ruling decided along ideological lines, overturned a lower-court decision that had blocked the funding transfer. In October 2019, Trump vetoed a bipartisan bill that Congress had passed to repeal the emergency decree.
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