State of the Union January/February 2009

The Founders’ Great Mistake

Who is responsible for the past eight years of dismal American governance? “George W. Bush” is a decent answer. But we should reserve some blame for the Founding Fathers, who created a presidential office that is ill-considered, vaguely defined, and ripe for abuse. Here’s how to fix what the Founders got wrong—before the next G. W. Bush enters the Oval Office.
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The most dangerous presidential malfunction might be called the “runaway presidency.” The Framers were fearful of making the president too dependent on Congress; short of impeachment—the atomic bomb of domestic politics—there are no means by which a president can be reined in politically during his term. Taking advantage of this deficiency, runaway presidents have at times committed the country to courses of action that the voters never approved—or ones they even rejected.

John Tyler, who was never elected president, was the first runaway, in 1841. William Henry Harrison had served only a few weeks; after his death, the obscure Tyler governed in open defiance of the Whig Party that had put him on the ticket, pressing unpopular proslavery policies that helped set the stage for the Civil War.

Andrew Johnson was the next unelected runaway. Politically, he had been an afterthought. But after Lincoln’s assassination, Johnson adopted a pro-Southern Reconstruction policy. He treated the party that had nominated him with such scorn that many contemporaries came to believe he was preparing to use the Army to break up Congress by force. After Johnson rebuffed any attempt at compromise, the Republican House impeached him, but the Senate, by one vote, refused to remove him from office. His obduracy crippled Reconstruction; in fact, we still haven’t fully recovered from that crisis.

American political commentators tend to think loosely about exertions of presidential authority. The paradigm cases are Lincoln rallying the nation after Fort Sumter, and Roosevelt, about a year before Pearl Harbor, using pure executive power to transfer American destroyers to embattled Britain in exchange for use of certain British bases. Because these great leaders used their authority broadly, the thinking goes, assertions of executive prerogative are valid and desirable.

Certainly there are times when presidential firmness is better than rapid changes in policy to suit public opinion. Executive theorists in the United States often pose the choice that way—steady, independent executive leadership or feckless, inconstant pursuit of what Hamilton called “the temporary delusion” of public opinion. But not all shifts in public opinion are delusive or temporary. An executive should have some independence, but a presidency that treats the people as irrelevant is not democratic. It is authoritarian.

Lincoln and Roosevelt asserted emergency powers while holding popular mandates. Lincoln had just won an election that also provided him with a handy majority in Congress; Roosevelt was enormously popular, and in 1940 his party outnumbered the opposition 3-to-1 in the Senate and by nearly 100 seats in the House.

But sometimes a president with little or no political mandate uses the office to further a surprising, obscure, or discredited political agenda. Under these circumstances, what poses as bold leadership is in fact usurpation. The most egregious case arises when a president’s policy and leadership have been repudiated by the voters, either by a defeat for reelection or by a sweeping rejection of his congressional allies in a midterm election. When that happens, presidents too often do what George Bush did in 2006—simply persist in the conduct that has alienated the country. Intoxicated by the image of the hero-president, unencumbered by any direct political check, stubborn presidents in this situation have no incentive to change course.

When the voters turn sharply against a president mid-term, his leadership loses some or all of its legitimacy, and the result can be disastrous. Clinton was decisively repudiated in November 1994. After the election, the administration and the new Republican Congress remained so far apart on funding decisions that the government had to shut down for 26 days in 1995 and 1996. This episode is now remembered for Clinton’s political mastery, but it was actually a dangerous structural failure. (Imagine that the al-Qaeda attacks of September 11, 2001, had happened instead on December 20, 1995, when the stalemate had forced the executive branch to send most of its “nonessential” employees home.)

To sum up, while George W. Bush may have been a particularly bad driver, the presidency itself is, and always has been, an unreliable vehicle—with a cranky starter, an engine too big for the chassis, erratic steering, and virtually no brakes. It needs an overhaul, a comprehensive redo of Article II.

Constitutional change is a daunting prospect. But consider how often we have already changed the presidency; it is the Constitution’s most-amended feature. And this is the moment to think of reform—the public’s attention is focused on the Bush disaster, and ordinary people might be willing to look at the flaws in the office that allowed Bush to do what he did.

So how should the presidency be changed?

First, voters should elect presidents directly. And once the vote is counted, the president-elect (and the new Congress) should take office within a week. Americans accustomed to the current system will object that this would not allow enough time to assemble a Cabinet—but in England and France, the new chief executive considers ministerial nominations before the election. A shorter interregnum would force the creation of something like the British shadow cabinet, in which a candidate makes public the names of his key advisers. That would give voters important information, and provide the president with a running start.

Next, Article II should include a specific and limited set of presidential powers. The “unitary executive” theorists should no longer be allowed to spin a quasi-dictatorship out of the bare phrase executive power; like the responsibilities of Congress, those of the president should be clearly enumerated.

It should be made clear, for example, that the president’s powers as commander in chief do not crowd out the power of Congress to start—and stop—armed conflict. Likewise, the duty to “take care that the laws be faithfully executed” needs to be clarified: it is not the power to decide which laws the president wants to follow, or to rewrite new statutes in “signing statements” after Congress has passed them; it is a duty to uphold the Constitution, valid treaties, and congressional statutes (which together, according to the Constitution, form “the supreme law of the land”).

After a transformative midterm election like that of 1994 or 2006, the nation should require a compromise between the rejected president and the new Congress. A president whose party has lost some minimum number of seats in Congress should be forced to form the equivalent of a national-unity government. This could be done by requiring the president to present a new Cabinet that includes members of both parties, which the new Congress would approve or disapprove as a whole—no drawn-out confirmation hearings on each nominee. If the president were unwilling to assemble such a government or unable to get congressional approval after, say, three tries, he would have to resign.

This would not give Congress control of the executive branch. A resigning president would be replaced by the vice president, who would not be subject to the new-Cabinet requirement. This new president might succeed politically where the previous one had failed (imagine Al Gore becoming president in 1995, and running in 1996—and perhaps in 2000—as an incumbent). And that possibility would discourage the new congressional majority from simply rejecting the compromise Cabinet. Resignation might be worse for them than approval.

As a final reform, we should reconsider the entire Hamiltonian concept of the “unitary executive.” When George Washington became president, he left a large organization (the Mount Vernon plantation) to head a smaller one (the federal government). But today, the executive branch is a behemoth, with control over law enforcement, the military, economic policy, education, the environment, and most other aspects of national life. That behemoth is responsible to one person, and that one person, as we have seen, is only loosely accountable to the electorate.

In other areas, the Framers solved this problem neatly: they divided power in order to protect against its abuse. Congress was split into the House and the Senate to ensure that the legislative process would not be so efficient as to absorb powers properly belonging to the other branches. The problem now is not an overweening Congress but an aggrandized executive branch; still, the remedy is the same. We should divide the executive branch between two elected officials—a president, and an attorney general who would be voted in during midterm elections.

As we are learning from the ongoing scandal of the torture memos, one of the drawbacks of a single executive is that Justice Department lawyers may consider it their job to twist the law to suit the White House. But the president is not their client; the United States is. Justice Department lawyers appointed by an elected attorney general would have no motive to distort law and logic to empower the president, while the White House counsel’s office, which does represent the president, would have every incentive to monitor the Justice Department to ensure that it did not tilt too strongly against the executive branch. The watchmen would watch each other.

This arrangement would hardly be unprecedented: most state governments elect an attorney general. The new Article II could make clear that the president has the responsibility for setting overall legal policy, just as governors do today.

None of these changes would erode the “separation of powers.” That happens only when a change gives one branch’s prerogatives to another branch. These changes refer in each instance back to the people, who are the proper source of all power. The changes would still leave plenty of room for “energy in the executive” but would afford far less opportunity for high-handedness, secrecy, and simple rigidity. They would allow presidential firmness, but not at the expense of democratic self-governance.

It’s not surprising that the Framers did not understand the perils of the office they designed. They were working in the dark, and they got a lot of things right. But we should not let our admiration for the Framers deter us from fixing their mistakes.

Our government is badly out of balance. There is a difference between executive energy and autocratic license; between leadership and authoritarianism; between the democratic firmness of a Lincoln and the authoritarian rigidity of a Bush. The challenge we face today is to find some advantage in Bush’s sorry legacy. Reform of the executive branch would be a good place to start.

Garrett Epps is a professor of law at the University of Baltimore.
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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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