Obama's Setback and the Case for Coalition Government

In any other advanced democracy, Barack Obama would be out of office or hard at work assembling a coalition government. Under our system, he is (or should be) devising ways of using executive power to set national policy in the teeth of opposition from the new Congress.

This paradox of American politics ought to spur us to think about the peculiarities and perils of our system. These thoughts are spurred in part by the release of a new paper, "The Power of the President" by the progressive Center for American Progress detailing ways that the President can govern by executive order over the next two years. (The Center's paper is not the only helpful offer of advice Obama has received, though it may be the most constructive. Consider David Broder's suggestion that Obama save himself by orchestrating a crisis with Iran.) The paper's authors are quite cheery about the road ahead: "Concentrating on executive powers presents a real opportunity for the Obama administration to turn its focus away from a divided Congress and the unappetizing process of making legislative sausage. Instead, the administration can focus on the president's ability to deliver results for the American people on the things that matter most to them," they suggest. "Making legislative sausage," of course, is at the heart of most visions of actual governance. The prospects, however, are for little governance over the next two years, and a large number of foreign-policy initiatives abroad and executive orders at home.

There's some evidence Obama has already started down this road—witness his high-profile demand that the new Congress continue our bipartisan Russia policy by ratifying the New START Treaty. As someone who admires Obama far more than his enemies, I hope the President succeeds in this strategy. If he is skillful and lucky, he is on track to be re-elected despite the potentially crippling losses his party suffered on Election Day.

As someone who studies the Constitution, though, I want to point out how differently our system handles electoral repudiation of the President than others do. And I sometimes wonder whether the Constitution's failure to provide for party government has contributed to the corrosive, indeed dysfunctional, state of our political system.

Obama's setback was huge. Democrats lost not only their majority, but roughly one-quarter of their seats in the House. In Britain, Obama would have left Downing Street that night. In Italy or Israel, his party would have begun attempting to assemble a coalition government. In France, he would still be President—but a new Prime Minister would have the task of enacting the agenda of the new majority.

In our system, a midterm like this one has no clear effect on the government. That's because the Framers fondly imagined that high-minded Americans would not organize into vulgar political parties. (Gauge how wrong they were by the fact that the two authors of The Federalist, Hamilton and Madison, ended up as leaders of the first two parties to emerge.)
Their system was certainly not designed for mass politics and a huge lower House. (The First Congress had 26 Senators and roughly 60 House members—about as many in all as currently sit on the House Appropriations Committee.)

When it went into effect, the original Constitution also lacked the strict "separation of powers" ideology we have read into it. The Framers wanted to block the emergence of a parliamentary system, with legislators serving as ministers—witness the requirement in Article I, § 6, cl. 2 that "no person holding any office under the United States, shall be a member of either House during his continuance in office." But in the early days, the lines between Congress and executive were hazier. During Framing and Ratification, it was taken for granted that the Senate was in some way a part of the Executive Branch, to be actively consulted about treaties and appointments. And when the First Congress created the Treasury Department, they required the new Secretary to report directly to Congress, not the President, in effect taking direction of financial policy for itself. Justice Scalia and a majority of the Court would regard that as grossly unconstitutional. (Ten members of the First Congress had also been delegates to Philadelphia. What did they know?)

Today, neither House has any direct influence on how the President or the Cabinet carry out their duties. Congress can limit their discretion through the appropriations process. But they can't block executive regulations (considering that the President could always veto a statute that did so) and they can't directly tell the President what to do.

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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. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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