Journal Feature: Is the Presidency Too Weak?
By Jeffrey K. Tulis
I am going to take up the question that was just posed in that kind intro- duction, “Is the presidency too weak?” I won’t hold you in suspense: the answer is no. The presidency is not too weak.
For a long time in political science, it used to be thought that the presidency was too weak. That was due to the powerful influence of a book by Richard Neustadt titled Presidential Power. Neustadt has a story about Harry Truman that sets up his thesis. In the early summer of 1952, before the heart of the campaign, President Truman contemplated the problems of a general’s becoming president, should Eisenhower win the forthcoming election. Truman said that Eisenhower would sit here, “tapping his desk for emphasis, and he’ll say ‘do this, do that’ and nothing will happen. Poor Ike, it won’t be a bit like the army. He’ll find it very frustrating.”
And so the dominant understanding of the presidency in American politics for the 1950s and ’60s tried to wrestle with the fact that it’s difficult not only for the president to get his will in Congress, but even for the president to control and direct the executive branch. But in the late 1960s and early 1970s, well-known public intellectuals such as Arthur Schlesinger Jr. claimed that the opposite was true; that presidents were far too powerful. The idea of the imperial presidency took hold, which suggested that presidents were actually dominating the American constitutional order. Today, the most influential literature in political science about the presidency emphasizes the enormous ability of presidents to exercise unilateral powers in a variety of ways. For example: across all administrations since FDR, we see the increasing ability of presidents to use executive agreements in place of treaties, to withhold information from Congress, and to use the processes of regulation instead of legislation. President Obama has already signaled that he is prepared to do all sorts of things on his own authority if he doesn’t get cooperation from Congress. Because so many of these executive actions have been used effectively to implement important public policies, in recent years we’ve had a spate of books on the “new imperial presidency.”
I want to suggest something different—that the presidency is very strong, but not imperial. This executive strength may indeed pose problems for democratic governance, but the source of those problems does not lie in the presidency. The presidency looks somewhat imperial today because of the failure of the Congress. In other words, the problem of presidential power today is actually not the exercise of presidential power; it’s the gross abdication of responsibility by the legislative branch, the Congress of the United States.
The core pathology of national politics today is congressional abdication. Now, you might wonder, how far back does that go? How old is this problem? Not too old. It goes back basically to the mid 20th century. The 19th- and early 20th-century Congresses were veritable models of constitutional responsibility compared to present practice. This is not to suggest that the 19th century was a utopian era. One can readily point to slavery, racism, gender discrimination, and all sorts of things to argue that time was deeply flawed compared to the modern period. But with respect to institutional politics and the civic education of the citizenry more generally, the 19th century was a really remarkable time. To see this, all you need to do is look at the congressional globe or the congressional record at random. Read the debates. You will find them unbelievably engaged, interesting, informed, often—but not always—principled, and of a high quality, rhetorically and politically. And if you do the same thing with the Congressional Record today you will find the opposite. American politics is characterized, believe it or not, by the absence of robust constitutional discourse and a dearth of institutional contestation.
I will come back to the obvious rejoinder: “What do you mean? Isn’t there too much conflict in DC today?” And the answer is: “Yes, there is.” “Isn’t there too much partisan polarization?” Yes, there is. But these per- verse forms of conflict that we see today are themselves the fruit, or byproduct, of a kind of institutional amnesia that has led to the absence of the fructifying, helpful sorts of institutional conflict that was built into our original political system and was manifest in the19th-century constitutional order.
Why would our original political system be properly characterized as designed for conflict? It is because the three branches of our government were not crafted to illustrate and embody the separation of powers principle, although this idea is the most familiar to everybody, and can be found in the original language used. Over time, transformation and misinterpretation of the separation of powers discussion have obscured what the Constitution was actually designed to be. I call this new constitutional design a democratic version of the mixed regime, a mixed democracy.
The classic mixed regime, some of you may know, was the idea that a polity might be better off if it could somehow represent the alternative regime possibilities in one polity so that one branch would be representing a monarchy, another one aristocracy, and another democracy. Taken together, they would insure a kind of continual agonism over who should rule. The polity as a whole would benefit from a continuing, institutionalized argument regarding fundamental political alternatives. The virtues of each alternative could be exploited and the vices of each contested.
America did not adopt the mixed regime, partly because we did not have pre-existing social classes that might represent these regimes, but also because we were committed to becoming some form of a democracy. The American choice, at least the founding choice, was to represent different desiderata of a democracy itself in different institutions. To represent energy and a need to attend to security in one, to represent a popular will and deliberation in another, to represent rights and judgment in another—and to structure these institutions so that the way they were built, even more than the powers we assigned to them, would incline them to see the very same problems from different angles, different democratic perspectives. And the reason to do that is to make sure over time, even though you didn’t know who would actually inhabit these institutions, you could count on the relevant considerations for democratic deliberation, discourse, and decision being raised. If the institutions inclined their occupants to look at the world in the way the institutions were designed to make them look at it, rights should be attended to in every case—what people wanted should be attended to and the security needs of a country, which is not a peculiarly democratic issue but is an issue for all regimes, would be attended to. The relative weight that should be given to these competing considerations would be a bi-product of the political contestation between these vigorous proponents of different ways of seeing politics. In order for this new design to work, the institutions have to be engaged to do it. The occupants of the institution need to see—and be motivated to see—the world from the designed point of view of those major branches of government. The Federalists described this as “tying the ambition of office holders to the duties of the place.” It meant that the ordinary ambitions of people, once they inhabit an institution, would be transformed as they looked at the world from that institution, in order to advance their own political ambitions.
Now, how does all of this bear on American politics today? Well, in fact, the presidency works pretty much the way it was anticipated and encouraged by the original design. A lot of Obama supporters were surprised that Obama continued some of the policies of the Bush administration, with respect to foreign policy and national security. To some extent they shouldn’t have been surprised because he adopted a moderate stance during the campaign. But there were some ideas or campaign commitments that he did change. His views changed because, as president, he looked at the world from a security perspective. Now sometimes that security perspective can be too narrow of a perspective for the polity to take, but it’s his job to take that perspective, and if you’re concerned about the foreign or defense policy result, you should be concerned about Congress not articulating its contending or competing perspective.
In the 20th century, however, Congress is no longer the agonistic, viable contender in national politics it once was. It gives up, or abdicates, its power to the presidency. For example: in the 19th century, one out of every three Supreme Court justices was turned down—either by resigning after the debate, or actually being voted down. In the 20th century, only a handful have been turned down. And more than one out of three were controversial in the earlier period, including some that weren’t turned down. That’s a huge change. And the still more important change is that we’ve come to the view that it’s a bad thing to have political argument over, for example, ideology, or jurisprudence, or the political views that justices bring to the table. In the 19th century, the full array of considerations that a president might have for nominating somebody—which ranged from crass political concerns regarding geography or representation of some group, to the higher considerations regarding the meaning of the Constitution and methods to interpret it—were ripe for consideration by the legislature as well as the presidency. In the 20th century, those concerns are no longer taken on and debated by the legislature. That is a serious abdication of power.
With respect to budgets, the legislature is the place that’s supposed to do the budgeting. A legislature’s fundamental job is to allocate money, particularly in an advanced, industrial, liberal-democratic society like our own. What else is there to do, legislatively speaking, that’s important? We no longer need a democratic legislature to spend its time arguing about whether we should be a democracy, as in old mixed regimes. The big questions have, in a way, been answered for us. The questions that are grave today actually have a technical dimension to them, such as how to best spend our money in order to make the country as a whole more prosperous, or more just. The modern-day Congress has found itself incapable of budgeting and so it is increasingly giving that responsibility to the executive. Initially the executive itself insisted that it was better at doing this because it had the tools—the technical tools—to do budgeting. And in the Nixon administration there was a really good and robust debate about this as President Nixon was impounding money. He was refusing to spend money that had been appropriated for particular things on the grounds that he had custody of the whole and they were thinking too much about the parts. Congress responded to that by cutting back his power to impound, but also by creating the Congressional Budget Office, the legislature’s own technical support institution, which over time has developed a reputation for being better than the executive branch. Even the executive branch now cites the Congressional Budget Office if it wants to make a credible claim about whether their budget means x or y. It’s the Congressional Budget Office numbers that they use, not those of the Office of Management and Budget—the executive’s institution.
Despite those resources, Congress punts on the budget, and they do this in a way that is very interesting. They do this in a way that resembles the story of Ulysses and the Sirens, from Greek mythology, in which Ulysses’s ship sails past beautiful sirens, whose singing causes sailors to jump overboard and swim toward them until they all die. In that myth, Ulysses decides he has to solve this problem, and he says, “Look, cover your ears, so you can’t hear these sirens, and put me up there and tie me on the mast so I can see what’s going on, but I can’t kill myself.” (It struck me as an odd solution. I would have said, “Why don’t we take a different route?” but he said, “No, no, no, I have to hear what is so special about these sirens.”) So that’s a kind of approach that’s actually been thought to be a form of political and ethical responsibility—that you can anticipate your own weakness in advance, and make advance arrangements for it, so that it doesn’t harm you. Now this idea, this notion of pre-commitment, is the one that Congress absorbed and tried to model for itself to deal with the budget. On the surface, it looks like a potentially responsible, not irresponsible, response to this problem.
In the Gramm-Rudman-Hollings Act, for example, and in proposed balanced-budget amendments, and in the recent sequestration that has been a subject of political debate, Congress said, look, “we’re going to devise a process in which if we don’t successfully make a budget ourselves, the budget will still get made.” By the way, a budget is simply a mechanism to figure out what amount of money is being collected, what amount of money is available to spend, and what one is going to spend the money on. That’s what a budget is. And the problem has been that Congress would just spend money on whatever they wanted, beyond any limit on what money was coming in. In response to this problem, Congress said, “Let’s figure out how much money we can spend, and if we fail to come up with a budget within those limits, we will delegate somebody to actually cut the budget, across the board, by a percentage amount.” It’s like tying yourself to the mast.
The difficulty with that solution, of course, is that in the end nobody, including the delegated executive or whoever the functionary is who executes this policy, has ended up doing the essential activity that legislatures were designed to perform—which is to decide among the priorities how much you want to spend on each. It’s obviously a dumb thing to cut every- thing by 15 percent, since some things are going to be killed by doing that, and other things are going to be hardly affected at all. The whole point is to make those legislative decisions about what’s more important, and that is not being done.
A final example: war powers. The president, as you know, has enormous authority over war and peace. Enormous authority. That’s where a lot of the credible claims about the imperial presidency come from. Yet, the president should be pushing the envelope regarding national defense. That is a principal job of the executive—to figure out how to defend our country. It is the Congress, however, that has not been doing its job— either by retrospectively evaluating those actions or, in the case of things like offensive wars, by insisting that they can’t happen unless the legislature authorizes them. I happen to be one who liked, for example, the Obama policy in Libya, but it was simply wrong and clearly unconstitutional for the president of the United States to execute it on his own authority. There is no compelling constitutional case that can justify an executive decision to take the nation from a state of peace to a state of war with another country on his own authority—but Congress did not stand up for itself.
One of the reasons for Congressional abdication of war power goes back to something that was mentioned earlier this morning. During Roger Berkowitz’s introduction to the conference, he listed several moments of leadership greatness: the Emancipation Proclamation, George Washington, Truman and the steel seizure. And I was thinking, wait a minute, how does this sequence work? The steel seizure case is generally thought to be American history’s most dramatic instance of presidential failure and weakness.
Some of you may know that Truman seized the steel mills in the Korean War to intervene in a labor-management dispute. There were all sorts of mediation efforts. Labor agreed to the mediators’ proposals, but management did not. Due to the intransigence of management, a strike was looming. The president decided the war effort would be hindered if the state did not have ready access to steel, so he seized these steel mills. The case was quickly taken to the Supreme Court. And the Supreme Court, in a decision that is the most confining of presidential power in the history of the Republic, hammered the president.
It was a highly unusual moment for the Court to refuse to ratify an assertion of presidential power. From the point of view of the opinion, from the people’s reaction to the opinion at the time, and from the judgment of historians since—the decision was received as a great triumph for American democracy—Truman was wrong in this received understanding; this was a supremely bad exercise of presidential leadership. I actually think Truman was right, and I think the Supreme Court opinion was wrong. The unnoticed piece of this story is that, unlike exercises of presidential power today, when Truman seized the steel mills he sent a letter to the Congress of United States saying, “I know this action is unprecedented; it does require your authorization. But the circumstances of war impel me to seize the steel mills. Here are my reasons but I will follow your guidance, your legislative judgment. You need to either ratify what I do democratically, or you need to suggest something to do instead, or you need to countermand my decision. Whatever you decide, I’ll follow.” No response from Congress. He sends another letter to the Senate 14 days later: “I don’t know if you got my first letter but . . . ” He repeats basically the same argument. Nothing happened.
The steel companies brought the lawsuit and the Supreme Court decided to arbitrate this dispute, or alleged dispute, between Congress and the President. Truman interpreted Congress’s failure to respond as tacit consent—“It’s your job to deliberate, I’m doing my job to win a war.” He believed that whatever separation of powers issue was raised by his action was one to be resolved by the two political branches—Congress and the President. But the court decided that they were going to do Congress’s job on its behalf. They said, this is not right, the president should be following the Congress, and the Congress did not authorize this. That extraordinary Supreme Court decision had enormously unfortunate con- sequences for the conduct of American politics subsequently. It means now that if Congress ever has the wherewithal to care about what a president does with respect to its own powers, it tends to go to the court to figure out if it can do what it should be doing, rather than stand up and develop its own constitutional conscience, its own constitutional position, and its own articulate view. The Court hastened the legalization, and depoliticization, of formerly robust constitutional contestation between Congress and the president.
So those are examples of congressional abdication. As a result of the demise of constitutional conflict in the United States, we have seen a stunning reversal of the use of Congress. In the 19th century, ideologues and partisans would be transformed into constitutional officers. I sometimes tell my students that hypocrisy is a virtue of constitutional design even though it’s a defect of individual character. You certainly don’t want your friends to be hypocrites. But a lawgiver who figures out how to make politicians intentionally hypocritical—which is to say, induces politicians to say the right thing whether it’s in their hearts or not—that is the supreme triumph of modern liberal democracy. It happened in 19th- century America.
The irony is that this defining feature of modern constitutional design has been reversed in our century. Rather than ideology and party being co-opted by the institution, we now have the Congress of the United States being hijacked by a political party. I could say “by political parties,” except I happen to think that what’s called polarization is wrong to the extent that you think of it as a symmetrical problem with ideologues on the left and ideologues on the right. It’s not. There are some ideologues on the left, but in general the Democratic Party has been rather moderate ideologically, and prone to compromise with the Republican Party. The entire ideological spectrum has moved toward the right, and the right has become intransigent. The right has increasingly used constitutional institutions for partisan purposes—for examples, filibusters, temporary budget resolutions, and debt ceilings. So we do have too much conflict, too much of what’s called polarization, and too much gridlock in American politics today; but it is due to the perversion of institutions that were originally structured for a different kind of conflict.
Let me end by saying what this account says about presidential leadership and its needs. I think that one possible ill consequence of a conference like this is to focus too intently on presidential leadership as the principal instrument of democracy. The worry that the president is too weak to contend with the demands of modern governance captures this focus and this error. If our meaning of leadership is an ability to do what many effective leaders that have come to this conference do—mobilize groups of like-minded partisans—then at the presidential level, to be effective as that kind of leader and to normalize that idea of a leader is to actually undermine democracy. Democracy requires deliberation—democratic deliberation—and leadership of the sort most familiar to students of the presidency supplants deliberation.
For this reason, the greatest ancient statesman-lawgivers—those great political problem solvers—were not the model for presidential leadership when the American Constitution was designed. George Washington was the model of a presidential leader, and his kind of leadership did not supplant deliberation in the manner of ancient lawgivers. He was not thought to be a Lycurgus or a Solon. He did not want to be a statesman-lawgiver and he did not want to have the power to remake a people—to make a people into a different people. A constitutional leader needs to be, in Washington’s model, representative of a people already made and making itself.
So our constitution envisions leadership as constitutional officership that only occasionally has to step out of that more limited notion of officership in times of war and emergency, where the presidents become something a little bit more like the statesman-lawgiver-leader of the past. But, in general, constitutional leaders are supposed to make the Congress do its job better. The kind of leader we need now is not necessarily the one who is more effective at getting a particular policy agenda rammed through Congress, or one who accomplished partisan policy goals outside of Congress—although, in present circumstances, an effective partisan president may be the best we can get. The kind of leader we most need now is a constitutional leader that gets Congress reoriented toward doing its own job better. And in order to do that, the citizenry is going to require a high level of civic education that is almost unimaginable—an education that equips us to better monitor the Congress, so that the Congress is responsible to the citizenry. I’m not talking about civic education as participation, such as going to rallies and so forth. (I’m all for going to rallies and I also think movements that have been described in sessions here are profound and important.) The kind of education that is relevant to the pathology I have described is a constitutional education, and it requires a kind of deliberative discourse that is in serious decay today.