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.
The result is a system in which seismic political shifts may have little direct effect—and, perversely, may impel the executive to adhere more closely to policies that the voters seem to have, well, refudiated.
After the Republican victory of 1994, Bill Clinton used his political skills to "triangulate" between Congressional Republicans and Democrats, and emerged victorious in 1996. The Democratic victory of 2006 was a clear rejection of Bush's rigidity and of the Iraq War. Bush took the occasion to escalate the war, and to strengthen his claims of executive authority at home and abroad. In neither case did the President actually share direction of the nation with the majority on the Hill.
What lesson do we draw from this? I certainly don't think Obama should invite this Republican party to join him in power somehow. However high-minded that sounds, it is simply impossible to share power with a party whose single aim is to destroy the government he would be asking them to join. And let it be noted for the record that Obama tried harder than any President I can remember to form a bipartisan Cabinet. He retained Bush's Defense Secretary, and offered the Commerce spot to a conservative Republican Senator, Judd Gregg.
But I wonder whether the recurrent bad behavior of our Congress doesn't stem in part from its disconnect with actual policy. Why wouldn't the Republicans think only about 2012? Victory in any election but the presidential is in some senses an empty exercise.
Put yourself in the position of a Democratic member elected in 2006, or a Republican elected in 2010. You are a politician. Your aim, for yourself and for your party, is power. In other countries, you or your party would either take or at least share executive power—which would mean executive responsibility. The fate of the nation would be at least partly in your care. You would have to be very cautious about wrecking foreign or domestic policy.
Not in the U.S. So you use your subpoena power to paralyze the bureaucracy and accuse the Administration of nebulous criminality. You block confirmation of executive appointments, hoping to bring the policy apparatus to a halt. You use the budget power to push right up to—and maybe over the edge of—government shutdown. If you are truly maddened by impotence, you sabotage economic recovery—and risk Depression—by voting down an increase in the debt limit. And if the opportunity presents itself, you throw the nation into a trumped-up impeachment like that of 1998.
The one thing you seek to prevent is any kind of national success.
Each spell of divided government spurs the Executive Branch to make more extravagant claims of power; some of these claims stick, and after each crisis the Presidency is even more powerful. As the Presidency becomes more powerful, the incentives to legislative irresponsibility grow. It's a classic vicious circle.
There's no easy solution to this problem. It would require a change in the Constitution, to permit it to take note of parties and to allow the party out of the White House to negotiate for a real share of power. As we worry over the future of our broken system, that's at least worth considering.
Recent history might have been very different if there had been the disposition and the willingness to come together after an election, rather than--as exists today--the incentive to magnify differences and look only to the next one. Consider what history might be like if, after the disastrous 2000 election, George Bush had had the imagination and the means to say, "I know I didn't get as many votes as Al Gore. The only way we can ever put this behind us is by forming a government of national unity, with the two parties working together in the Cabinet and on the Hill." Or, even if he let that opportunity slide, what if he had formed such a government after 9/11? History might regard him as a great President, rather than a terrible one. And the past decade might have been very different.
If Barack Obama is skillful, we can look ahead to two years of executive finesse and legislative gridlock. If he is not, then we will live through a two-year train wreck.
It's worth noting that most other advanced democracies wouldn't allow things to reach such a pass.