Here’s an interesting piece in the new Atlantic arguing that the Founders messed up in designing the presidency and offering some suggestions for fixing it. Despite the author’s suggestion that the abuses of the last 8 years might get the public interested in this, I’m skeptical, not least because it wouldn’t serve a particular institutional or partisan interest; each party tends to like an inflated executive when its the one in charge of it. It’s possible, I suppose, that Congress could be brought to see executive reform as a way of reasserting the balance of powers between the branches, but, again, the track record doesn’t inspire much confidence.
"Man is but a reed, the most feeble thing in nature, but he is a thinking reed" – Blaise Pascal
4 responses to “Fixing the imperial presidency?”
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I’m not convinced; virtually all the problems listed in the article are signs of a Congress failing to fulfill its Constitutional duties rather than excessive Presidential powers. It’s Congress that lets Presidents get away with undeclared wars, for instance; it’s Congress that doesn’t take its impeachment powers seriously; and so forth. And the suggestions to change things are just awful — we have no adequate infrastructure for direct elections of the President in a population of 300 million people, and such elections are notoriously unstable and contentious (the only system that really consistently works better than ours is the parliamentary system, and people don’t directly pick Prime Ministers, either, since in such systems they elect Parliaments, not Governments); while the interim period might be due for a shortening, it serves serious functions, allowing time for resolution of disputes and clarification of murky situations; enumerated powers won’t help any, because they are already enumerated and limited — what constitutes the executive authority of the President is explicitly stated by the Constitution, and the expansion of the executive branch is due entirely to the expansion of laws that it is supposed to be taking care are executed — if enumerating powers were sufficient, the enumerated powers of Congress would be enough to keep both branches limited. (I do agree, however, that we need to get rid of this ‘signing statement’ nonsense, and if a constitutional amendment is required, we should be trying for that.)
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All good points. But I think the issue of overly broad executive power still stands–by which I mean the sort of plenary grant of power that the Bush admin. (and apparently Hamilton) seem to think exists. Do you think this is a constitutional weakness, or something that could be avoided by a more vigilant Congress? (One less gun-shy about impeachment maybe?)
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Certainly, a lot of the blame for the presidency’s aggrandizement may be laid at the feet of Congress — but that’s largely because the voters have shown themselves, time and again, to be quite fond of the imperial presidency. So I don’t think that making the presidency more popular is any kind of a solution; from the standpoint of limiting power, democracy has generally been part of the problem, from Andrew Jackson to George W. Bush.
However, I also think that the Constitution’s safeguards on the presidency are weak, not so much because the document was badly designed as because Hamilton (and his heirs) embraced a different construction of it from the beginning. That is, Jefferson and Hamilton could look at the same document and infer much different ideas about the president’s limits — and this was, I believe, deliberate on Hamilton’s part. He certainly didn’t say everything he was thinking on that head when he wrote his Federalist entries, anyway. Some people did suspect what might happen, though. Jefferson once wrote skeptically that the Constitution’s president looked like “a bad edition of a Polish king”; he wanted additional safeguards (like a Bill of Rights and, IIRC, term limits) before he signed on to ratification.
In light of how constitutional interpretation has changed over the years — we are living in a Hamiltonian world in many ways — I think some revision of the text might be appropriate.
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It’s difficult for us to wrap our minds around it, but the Founding Fathers were fairly deliberate in making sure that each branch could do pretty much what it wanted, with only some restrictions on things that were deemed especially dangerous; the real safeguard is that to get away with doing what it wanted requires the complicity of at least one other branch. So I think there is no constitutional problem here; the problem, as Wilson suggests, is civic weakness rather than constitutional flaw. But if it’s civic I don’t think rewriting the Constitution will do much good; civic weakness will corrupt any remedy one might propose.
I’m also inclined to think that overreach and abuse tends to develop not when the Presidency is strong but when it is relatively weak — as now, when the executive authority is expected to do so many things that there is no way customary ways of doing things can be effective. This establishes a very powerful incentive for trying to play the system in order to increase one’s effectiveness. This is clearly what has happened in the case of Bush, who has been a weak and ineffective President even among modern Presidents; every single one of the obviously dubious moves by Bush has been in an attempt to do the sort of thing Congress and the public expect the President to do, even though the office couldn’t possibly possess the power to do it.
I also think it’s important to keep in mind that while Bush’s administration has highlighted the issue because of its incompetence in justifying its actions in a coherent and rational way, we of the present time do not have a special problem with these issues. The Presidency we face is much more hemmed in than many generations prior to us. We have not recently had a President deliberately and explicitly violate the Constitution, as Lincoln did in suspension of habeas corpus; term limits have blocked the possibility of Roosevelt-like grasp on political power; Bush administration overreach involves largely the same types of excesses that were found in the Nixon administration. (All three of those cases were cases where Congress actually took the trouble to do something about things that were regarded as abuses. It has the ability to do an immense amount to rein things in, if it chose to do so.)
A Thinking Reed 
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