The president also shares two powers with the Senate—to make treaties, and to appoint federal judges and other “officers of the United States,” including Cabinet members. And, finally, the president has two specific duties—to give regular reports on the state of the union, and to “take care that the laws be faithfully executed.”
[…]The modern presidency is primarily the intellectual handiwork not of “the Framers” but of one Framer—Alexander Hamilton. Hamilton’s idea of the presidency can be found in a remarkable speech he gave to the convention, on June 18, 1787. In it, Hamilton argued that the president should serve for life, name Cabinet members without Senate approval, have an absolute veto on legislation, and have “the direction of war” once “authorized or begun.” The president would be a monarch, Hamilton admitted, but an “elective monarch.”
Hamilton’s plan was so far from the mainstream of thought at the convention that none of its provisions was ever seriously discussed. Nonetheless, Hamilton was and remains the chief theorist of the presidency, first in writing his essays for The Federalist and then in serving as George Washington’s secretary of the Treasury. In this latter role, acting as Washington’s de facto prime minister, Hamilton took full advantage of the vagueness and brevity of Article II, laying the groundwork for an outsize presidency while the war-hero Washington was still in office.
[…]Under the pen name “Pacificus,” Hamilton wrote a defense of Washington’s power to act without congressional sanction. The first Pacificus essay is the mother document of the “unitary executive” theory that Bush’s apologists have pushed to its limits since 2001. Hamilton seized on the first words of Article II: “The executive power shall be vested in a President of the United States of America.” He contrasted this wording with Article I, which governs Congress and which begins, “All legislative powers herein granted shall be vested in a Congress of the United States.” What this meant, Hamilton argued, was that Article II was “a general grant of … power” to the president. Although Congress was limited to its enumerated powers, the executive could do literally anything that the Constitution did not expressly forbid. Hamilton’s president existed, in effect, outside the Constitution.
[…]Hamilton’s interpretation has proved durable even though there is little in the record of constitutional framing and ratification to suggest that anyone else shared his view. In times of crisis, power flows to the executive; too rarely does it flow back.
[…]The system that the Framers developed for electing the president was, unfortunately, as flawed as their design of the office itself. When Madison opened discussion on presidential election in Philadelphia, he opined that “the people at large” were the “fittest” electorate. But he immediately conceded that popular election would hurt the South, which had many slaves and few voters relative to the North. To get around this “difficulty,” he proposed using state electors. Electoral-vote strength was based on a state’s total population, not on its number of voters—and the South received representation for three-fifths of its slaves both in the House of Representatives and in the Electoral College.
[…]The text of Article II contained no provision for a presidential ticket—with one candidate for president and one for vice president. Instead, each elector was supposed to vote for any two presidential candidates; the candidate who received the largest majority of votes would be president; the runner-up would be vice president. In 1800, this ungainly system nearly brought the country to civil war. Thomas Jefferson and Aaron Burr ran as a team; their electors were expected to vote for both of them. Jefferson assumed that one or two would drop Burr’s name from the ballot. That would have given Jefferson the larger majority, with Burr winning the vice presidency. But due to a still-mysterious misunderstanding, all the electors voted for both candidates, producing a tie in the electoral vote and throwing the election to a House vote.
[…]In 1804, the Electoral College was “repaired” by the Twelfth Amendment; now the electors would vote for one candidate for president and another for vice president. This was the first patch on Article II, but far from the last—the procedures for presidential election and succession were changed by constitutional amendment in 1933, 1951, 1961, and 1967. None of this fine-tuning has been able to fix the system. In 1824, 1876, 1888, and 2000, the Electoral College produced winners who received fewer popular votes than the losers, and it came startlingly close to doing so again in 2004; in 1824, 1876, and 2000, it also produced prolonged uncertainty and the prospect of civil unrest—or the fact of it.
Even when the election system works passably, a president-elect must endure another indefensible feature of the succession process. […] Originally, a new president didn’t take office until March 4. […] The Twentieth Amendment, ratified in 1933, cut the interregnum nearly in half, but 11 weeks is still too long. […] …the voters have no means of holding their leader accountable.
[…]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.
[…]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.
[…]Constitutional change is a daunting prospect. But consider how often we have already changed the presidency; it is the Constitution’s most-amended feature.
[…]
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.
[…]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.
…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.
Source: The Atlantic (January2009)
Subjects: Excerpts, History, Politics & Public Policy
