The Trouble With the Executive Branch

Article II of the Constitution—which sets the bounds of executive power—is notoriously short; the document imbues remarkably scant powers to the executive, and to the president in particular. Much of the text outlines procedural mechanisms, to do with the time, place and manner of elections, and behavioral limitations: duties the president is either compelled to perform or forbidden.

The president is effectively tasked with five primary powers: the power to veto legislation passed by both chambers of Congress; the power to make appointments to certain judicial seats and heads of executive agencies, as well as to make temporary recess appointments when the Senate is not in session; the power to pardon individuals for offenses against the United States, except in cases of impeachment; he has the power to negotiate treaties with foreign agents, subject to confirmation by the Senate; and he is commander in chief of the military.

It is worth noting that the majority of these powers do not touch upon domestic government in any meaningful way. In those few areas where the president has extremely truncated powers, such as in the ability to appoint friendly officials, his actions are subject to oversight by the Senate. The veto power is more a check on Congress than it is an expression of the value added to legislation by presidential input. Rather, the majority of executive powers in which the president is the primary actor, rather than a damper on the engine of politics, are focused outwards: on how the U.S. exerts itself on the international stage.

With this framework, one might well wonder how the U.S. has reached its current predicament, wherein the executive agency seems largely focused on political affairs. The legislature takes its cues from the president when considering its legislative agenda, and much of policy is implemented through a vast and nebulous network of executive agencies whose unchecked regulatory powers have an exceptionally far reach.

The Framers’ Vision

It would be a mistake to assume that, simply because the Constitution deals briefly with the issue of executive power, that the men who drafted the document intended to relegate the president to a place of near irrelevancy.

The Articles of Confederation contained no provisions for an executive branch—the federal government consisted primarily of an extremely weak unicameral body, a sort of colloquium of the states, where majoritarianism carried the day. This arrangement, at least in the eyes of James Madison and Alexander Hamilton, had disastrous consequences. As skirmishes flared up within and between states, it became clear to the drafters of the Constitution that an executive—and a powerful one—was needed if the nation was ever to have a chance at stability, and thus survival.

In his defense of the executive branch proposed by the draft Constitution—unsurprisingly viewed warily by many whose memories of life under a king were fresh at hand—Hamilton defended the concentration of executive power in the hands of one man.

Writing in Federalist 70, he explained:

“Energy in the executive is a leading character in the definition of good government. It is essential so the protection of the community against foreign attacks; it is not less essential to the steady administration of laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”

The president, then, was meant to be a steady and sobering presence, an elder statesmen whose removal from the daily fray of interest-driven politics would help temper the passions innate to democratic discourse. Energy in government was not, as it is today, a term imbued with the evil omens of despotic government run amuck, but with efficiency. Weak-willed and ineffective, the confederacy created by the Articles of Confederation had been stymied not only by its lack of power, but the high hurdles implemented to rein in government, which instead rendered it completely impotent at decision-making.

One voice needed to stand above this fray and provide direction. Hence the need for a president.

Sensitive to the charges that this singular office carried with it shades of monarchy, or, at the very least, aristocracy, Hamilton further made the case that the arrangement laid out in the Constitution was necessary for the sake of accountability.

Too many executive officials, he stated, would only confuse voters. When the executive went off the rails (and neither Hamilton nor Madison thought this was likely, instead believing that the purer democratic elements of the legislature would be the source of any dysfunction), the people could easily exact justice. As Hamilton wrote, again in Federalist 70, “one of the weightiest objections to a plurality in the executive…is that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds—to censure and to punishment.”

There were also other checks upon the presidency built into the Constitutional framework. Denying the president any source of income beyond that voted him by Congress—an amount that could not be changed during his tenure—meant the president lacked motive to use his office for his ends rather than the nation’s. In Federalist 73, Hamilton stated “a power over a man’s support is a power over his will.” Since the president was totally dependent on Congress for his support during his time in office, it therefore followed that he had an interest in negotiating with Congress towards public policy that benefited the nation.

Bad Augurs

To read many portions of the Federalist Papers today, particularly those that touch upon the likely relationship between the legislature and the executive, is comical. Hamilton and Madison both foresaw that government abuse would come from the executive and that this would be countered by energetic responses from states jealous of their retained sovereignty. The president, they believed, could be nothing but an honest, disinterested actor.

The reality of modern politics, however, is almost exactly the opposite. States have very little authority, sometimes even over political issues that develop within their own borders. The legislature has ceded much of its authority to the executive and when it does legislate, it tends towards band-aid stop-gap measures that simply throw money at issues, rather than looking for durable solutions. The courts are often concerned with their own prestige and unwilling to overturn the decisions of their predecessors; this emphasizes case law and precedent rather than attention to the Constitution.

In a nutshell: modern political dysfunction is not isolated to one branch. Often the bad behavior of one branch only exacerbates that of another.

The Founders, and Madison and Hamilton in particular, were bad judges of human character. They imputed bad motives to certain actors and good motives to others. Madison’s famous quip about men needing government as they were not angels stands in direct contradiction to belief in self-government. Congress was designed to check interest against interest, to create a sense of proportionality reflective of the polity as a whole. This was done so that no one man or interest group could seize hold of power—not even with an aim to govern despotically, but to benefit the self, as this is the most fundamental impulse of man. Yet, the singular office of the executive contained far fewer checks; any argument that the president could corrupt the government was waved away.

Hamilton wrote of unity in the executive promote responsibility by allowing citizens to censure and punish a president they disliked. But concentrating power in the hands of the executive has given this same power to the president. Modern officeholders have behind them not only an army of regulatory agencies but powerful party organizations that can work, both inside and outside government channels, to punish those who disobey their will. Energy in the executive has also morphed to give the president upper hand when it comes to crafting policy. True, the submissiveness of Congress is a problem of its own making, but it without fail largely defaults to executive preference in terms of policy particulars and the order in which legislation is considered. This is perhaps the worst upending of the balance of powers, as it make the executive both the catalyst and the check upon legislative powers. In effect, veto power is used to okay those ideas that were suggested by the executive and halt those that come from alternative factions.

Whither the Executive?

The Founders were wrong twice-over: placing executive actions in the hands of a unitary legislative body led to abuse and dysfunction, but so has a unitary executive. Energy in the executive has drained it from other political actors.

So, what’s the solution? To simply abolish the executive is tempting. But there remains the issue of the executive agencies, which chiefly enforce policy, and the fact that this would destroy the delicate framework of the Constitution. Beyond that, the executive concentrated power, particularly in the progressive era, through initiatives that succeeded in large part because Congress acquiesced through inaction. The states, for their part, have hardly been jealous of their rights. Madison predicted that ingress against one would translate to a philosophic attack on all, leading to the rallying of the states against the federal government. This has not happened.

American politics is effectively a system of causes and effects. It is impossible to alter one branch without altering the rest. Political force is also subject to the laws of physics: it can neither be created or destroyed, only transferred between actors. Government, after all is limited, in ways that private actors are not. Abolishing the presidency would eradicate a lot of abuse, but not the powers which have been abused. Who would next wield them?

Among the problems of modern politics is size: the federal government was simply not created to govern a land mass so large and disparate. Were there a thriving culture of political localism in America, this might be an endrun around the problem. Alas, this is not the case.

Most fundamentally, the issue of executive overreach is related to this, however. The problem is one of transference: the energy which individuals, not only as sovereign people but sovereign citizens who direct government, begins with the self. A well-regulated self is the fundamental building block to democratic government. Before Congress defaulted on its responsibilities, individuals defaulted on theirs. And, since political power cannot be destroyed, all the sovereignty abandoned by those who wanted a champion in government to look for their interests became concentrated in the hands of the president.

Transfer power back to its rightful owners, and this problem begins to rectify itself.

Also published on Medium.

All content protected by copyright. The Politics of Discretion, 2016.
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