Which parts of the US Constitution have aged least well? In prior posts in this series, Jennifer Victor nominates slavery and suffrage and Seth Masket the electoral college. But it is also the case that our treasured “checks and balances” have become, well, unbalanced. Consider that we seem incapable of agreeing upon legislation that addresses the pressing issues of the day — everything from immigration to our crumbling infrastructure to health care. And forget about climate change.
Some of this dysfunction may be the result of persistent polarization and tribal “partyism.” But a primary cause is constitutional and rooted in the anemic lawmaking powers that our 1787 document grants to the president. This is only obvious once we compare the presidency to executives in other constitutional countries. It may seem strange to consider augmenting executive power during one of the most controversial administrations in US history, but now is exactly the time to evaluate the idea, when we can clearly understand the consequences.
One of the twists of fate from the founders’ summer project of 1787 is that they opted for a president over a prime minister. At some moments that summer, it looked like they might choose the latter. This fundamental difference between presidentialism and parliamentarism matters.
Prime ministers, as lead legislators, have power to set and implement the legislative agenda directly. US presidents can mostly just react to legislation through their veto power, though admittedly the threat of a veto could serve as a downstream constraint that legislators take into account upstream. This lack of initiation power was exhibited starkly last week when Senate Majority Leader McConnell informed the president that the Senate would not — contrary to the president’s tweet — be taking up comprehensive health care reform.
Most presidential systems have adapted the US model by explicitly allowing presidents to introduce legislation. Professors Terry Moe and William Howell have suggested a fix: fast-track privileges guaranteeing presidential proposals a vote in Congress.
Even in countries where presidents can initiate bills, their proposals are not as successful as are those of prime ministers. Consider some data collected by Sebastian Saiegh on the “batting average” of a large sample of executives over 30 years — that is, the percentage of executive-initiated legislative proposals that are ultimately enacted. As we might expect, the data shows that prime ministers have more success than do presidents. The US president, who cannot even come up to bat, is obviously not included in the analysis.
So, the US president has little direct power to affect legislation, at least initially. But what interests me is that the office also lacks many of the indirect legislative powers of presidents in other countries. We can think of indirect powers as providing “outside options” to legislation as well as threats/protections vis a vis the legislature; both sets of powers increase a president’s leverage in legislative bargaining.
Consider eight such powers. Outside options in other constitutions for executives include:
1. issuing legislative decrees;
2. calling a national referendum;
3. declaring a national emergency; and
4. proposing an amendment to the constitution.
Threats (or shields from threats) might include:
5. dissolving the legislature;
6. challenging the constitutionality of a law;
7. providing immunity for the executive from criminal prosecution; and
8. restricting legislative oversight.
And one could add other powers, such as the line-item veto.
The US president has none of these, at least constitutionally (which is critical). Other constitutions — for better or worse — include some or all of these. The chart below shows the sum of these eight powers for executives in presidential constitutions. The US score of zero, sitting lonely at the left side of the histogram, helps explain why our executives are not able to herd legislators in the direction of their agenda.
The US president’s anemic powers were evident during the Obama years. The shift to a Republican-controlled House in 2010 set in motion a perpetual standoff between Obama and Congress. One low-water mark may have been the brinkmanship over raising the debt ceiling during the summer of 2011. Each side needed the other’s approval to shape a budget bill and each, presumably, preferred an agreement to none at all.
As it happens, President Obama did have a constitutional outside option. Under one interpretation of the 14th Amendment (not President Obama’s, evidently), the president could have raised the debt ceiling unilaterally, to ensure the “validity of the public debt of the United States” (14th Amendment, Section 4). President Obama rejected this Constitutional option, which, according to Paul Krugman, amounted to a “systematic destruction of his own bargaining power.”
President Trump has a very different bargaining style. During the standoff over border wall funding, he has made aggressive use of his emergency powers. These powers, importantly, are not enshrined in the Constitution but rather in ordinary legislation, which renders them far less sacrosanct. It is not at all clear that the Supreme Court will find President Trump’s aggressive use of that statute to be consistent with his constitutional powers.
The emergency power example reminds us that our leadership over the years has tried to build a more muscular presidency outside of the Constitution. In addition to using statutory emergency powers, presidents have engaged in the dubious practice of “signing statements” that indicate their intent to honor only parts of legislation. The growth of extra-constitutional powers is what Arthur Schlessinger had in mind when he coined the phrase “imperial presidency” in 1973. Schlessinger worried that accumulating executive power outside of the constitution defined emperors as against presidents.
Other presidential countries have periodically revised the US model to constitutionalize many indirect legislative powers. Brazil, for example, along with the US and averages for presidential and parliamentary systems, has gradually built a strong set of presidential powers over legislation. It will be interesting to observe how President Bolsonaro wields such powers.
Which brings us to political considerations. Debates about constitutional prerogatives do not happen behind a veil of ignorance. Many constitutional drafters have in mind the next (or current) president. It didn’t take much for the Philadelphia drafters to imagine that George Washington, the archetypal consensus choice, would fill the office.
The reverence in which they held Washington makes it all the more ironic that they endowed the office so weakly. In our times, it is hard to imagine any legislator advocating for more executive power for their tribal opponent. Still, it may be that that is just what we need if we are to build and maintain bridges, update immigration laws, enact consensus legislation regarding guns, and solve problems in health care provision. Or we could continue to use our Congress to write bills to name post offices.