Imperfect Union: The Constitution Didn't Foresee Divided Government

Watching the battle between Obama and a Republican Congress for two years may shake Americans' faith in the Framers.

Benjamin Franklin (seated) in the National Constitution Center, Philadelphia (Wikimedia)

“The president is completely ignoring the will of the American voters, who turned out on Election Day and overwhelmingly elected people who wanted to change the direction of the country,” Senator John Barrasso of Wyoming, chairman of the Senate Republican Policy Committee, complained Thursday to The New York Times.

Barrasso is right. President Obama is ignoring “the will” of those who turned out to vote this month. In a different system, he would have already moved out of the White House, replaced by a leader chosen by the Republican majorities in Congress. (For that matter, he would have been gone after his party took, in his words, a “shellacking” in 2010.)

Instead, however, he is president for two more years. When the voters were directly asked their “will” on his tenure two years ago, they handed him a title deed to the White House good, under our Constitution, until January 2017. With that in hand, he has made clear that he plans to go forward with executive actions to further his agenda.

Already, since the election, he has signed an agreement with China setting more strenuous goals for reducing carbon emissions. He has promised to issue soon an executive order providing broader protections against deportation for undocumented immigrants—in effect using executive authority to impose a limited form of the comprehensive immigration reform the Senate passed but the House refused to enact. Signals from the White House suggest that other executive initiatives may be in the works.

Is this an outrage, a defiance of democratic legitimacy? Is it a welcome sign of courageous presidential leadership? How does the coming duel between legislative and executive branch fit into the design of our Constitution?

The answer to the last question is easy. What’s coming will be painful, frustrating, and dangerous—and it will illustrate a constitutional malfunction unforeseen in 1787. The country will survive, and it’s possible it can even make progress—but at tremendous cost in polarization and missed opportunity. The country is like a car driving with the handbrake on: Any movement forward will be accompanied by smoke and internal damage.

So we might profitably put a six-month moratorium on paeans to the wisdom of the Framers. The problem of divided government is a bug, not a feature, and the Constitution itself provides no guidance on how to work around it.

Obama’s response may or may not be outrageous, but it is not novel. Remember 2006? If ever a midterm election delivered a verdict about the “will of the voters,” it was that one. A single issue—the disastrous war in Iraq—dominated election rhetoric nationwide, and candidates who opposed the war won almost everywhere.

President George W. Bush’s response? He escalated the war the people had just repudiated, with the “surge” of 20,000 new troops into Iraq and extended tours for those already there. That worked brilliantly, rescuing the Baghdad government from imminent collapse—or, wait, it postponed inevitable failure long enough for it to land in Barack Obama’s lap in 2014.

Judging the answer is, mercifully, not part of my remit. But the example shows how, for better or worse, the Constitution created a government consisting of three high places—president, Congress, and Supreme Court—and the lay of the land looks very different from each.

To Republican members of Congress, a sweeping electoral result like this month’s is the most important thing in the world. They are legislators, and they think in terms of legislative control; in a sane system, they tend to think, they would be quoting the late Lord Shawcross of Friston, who (unwisely, as it turned out) celebrated the British Labour Party’s 1945 victory by telling Parliament, “We are the masters at the moment, and not only at the moment but for a very long time to come."

From the vantage point of a president—particularly a second-term president—the world looks different. He has two years left on an eight-year project. Congressional leaders are outraged that Obama proceeded with the U.S.-China Joint Announcement on Climate Change during his long-scheduled trip to Beijing, despite the election results. But the idea that a president would scrap months of talks—as part of a multilateral negotiating process designed to last at least until 2015—because of a change in Senate control must seem, from the White House, not just wrong but (to quote the great Vizzini), inconceivable. Similarly, the president has a war to run and a wide variety of policy initiatives to steer through the bureaucracy for the remaining two years of his term; crimes to prosecute, secret counterterrorism operations to supervise, medals to present, etc. Congress, however hostile it may be, must seem largely irrelevant to much of his day-to-day work.

I’m not taking one side against the other; I’m trying to illustrate a dangerous weakness of our system, one that the Framers clearly did not foresee. Many of them believed there would not be political parties in the new system. Others no doubt thought that the government they had designed would consist of a Congress that met for a month or so every December and a president who would supervise a slumbering bureaucracy the rest of the year. Some of them assumed the president would be a passive figure, administering directions from Congress; others imagined a chief executive with some of the majesty of the king of England.

I don’t think any of them anticipated that the two branches would ever clash over which represented “the will of the voters.” The voters weren’t all that important in their design. The House was the only branch directly elected by voters. The Senate was picked by legislatures, the president by electors. Most of them believed the voters should be represented—a different thing entirely than being asked their “will.”

Today, however, the active consent of the people is commonly held to be the only true source of legitimacy; the two parties are hostile and polarized; and the day-to-day operations of government are vitally important in terms both of foreign threats and of an integrated global economy.

Had the Framers foreseen any of that, they might have made different choices. Something closer to a parliamentary system would have been one option; it’s a much more common system than our own. But they might also have given Congress different terms, so that all members and the president would be selected at the same time. Two years is, by world standards, a very short legislative term; politics has become a non-stop exercise. In addition, midterm elections that don’t directly affect executive power create the danger of two antagonistic governments trying to fit into one capital.

But they didn’t foresee how the system might go awry, and so we have to do the best we can with what we have.

The constitutional wisdom is that Congress has the ultimate weapon: the power of the purse. But to use the appropriations power well, Congress has to craft budgets the president will sign—or get two-thirds of the votes in each House to override a veto. Neither is going to happen in the present atmosphere. The new congressional leadership are not the masters; they're just players in a complex and dangerous game. Their only real alternative is genuine negotiation with the White House, but a party that has spent six years pretending Obama did not win two national elections is unlikely to want to negotiate with him now.

So we know what probably happens next: shutdown, perhaps default, and possibly impeachment. These are the weapons of legislators too weak and divided to govern. The nation has been down this road before, and it doesn’t lead anywhere we want to go.