Preventing Presidential autocracy: thoughts on reining in Executive power
Preventing Presidential autocracy: thoughts on reining in Executive power
Matt Yglesias posted a jarring tweet this past week when he wrote:
He elaborated by linking to a long-form article he wrote four years ago, explaining his position, where in relevant part, he wrote:
America’s constitutional democracy is going to collapse.
Some day … there is going to be a collapse of the legal and political order and its replacement by something else. If we’re lucky, it won’t be violent. If we’re very lucky, it will lead us to tackle the underlying problems and result in a better, more robust, political system. If we’re less lucky, well, then, something worse will happen.
….
In a 1990 essay, the late Yale political scientist Juan Linz observed that “aside from the United States, only Chile has managed a century and a half of relatively undisturbed constitutional continuity under presidential government — but Chilean democracy broke down in the 1970s.”
Yglesias — and Linz — saved me a lot of work. Because I had long ago heard that the US was the only Presidential democracy that hadn’t succumbed to autocratic rule. That was precisely Linz’s finding. At this point the only other democracies that I know of that come close are Costa Rica (since the last coup of 1948) and the Fourth and Fifth French Republics (since 1945).
Historically, the problem has been that, over time, in any Presidential system, the President accretes more and more power (vs. a corrupt, ineffective, and/or deadlocked Legislature) until the Legislature degenerates into a toothless rubber-stamp, or else is disbanded by a President turned autocrat.
The US has not been immune. The first six Presidents, through John Quincy Adams, saw themselves as “Chief Magistrates,” only vetoing laws they thought were unconstitutional, and at least approximating a meritocracy in their limited number of appointments. That began to change with Andrew Jackson, who vetoed any legislation that did not exactly conform to his wishes, and initiated the “spoils system” of appointing only political backers to government posts.
With the vast expansion of the bureaucracy during the 20th Century, Presidents obtained much more power via all of the appointments they were able to make. And following the Second World War, the large and permanent global military footprint enabled lots of chances for the Commander in Chief to flex his muscle.
Now we are getting very close to the final crossroads. Obama committed troops to Syria after the Congress completely gave up their war-making authority, preferring to sit on the sidelines and snipe. Trump’s declaration of an emergency simply because he could not get what he wanted out of Congress, if upheld by the Supreme Court, all but ensures that government by Executive Decree, that can only be overruled by a 2/3’s majority of both Houses of Congress, will probably quite soon become the norm.
In fact, Trump’s refusal of the GOP’s compromise proposal is almost certainly because, now that he has found this powerful new toy, he intends to use it more.
Once Presidential Emergency Edicts become more routine, unless this or any future President’s party fails to seat at least 1/3 + 1 in both Houses of Congress, why even bother convening?
The bottom line is, I agree with Yglesias. We are on the way to autocratic Presidential rule unless the power of the Presidency is definitively reined in.
So, how should the Executive be reined in? Obviously, this must be via Constitutional changes. Below are my considered opinions for how to do that.
The mixed Presidential-parliamentary system used, for example, in France, in which some Executive powers are vested in a “Premier” or “Prime Minister” who is a member of the Legislature seem to be the best remedy. In the US, there are seven Presidential powers that ought to be either limited, or devolved in whole or in part to the Congress or its Legislative head:
1. Appointment of rule-making authorities in the bureaucracy (vs. adjudicating authorities, whose appointments would remain with the President). For example, the SEC both makes rules for corporate governance, and enforces those rules. The President ought to be completely taken out of the former, Legislative, role. Those regulators should be appointed solely by Congress.
2. Aside from full declaration of war, or the need for an emergency response, devolution of the authority for taking of limited military action. Thus, for example, if the Congress were to refuse to declare war, then any commitment of troops to Syria would be the sole authority of the Legislative head. (This would make Congress far more responsive to popular skepticism of any such adventure). This is in accord with the manifest intention of the Consitution originally, in which *all* types of hostilities, including limited ones such as a “Writ of Reprisal” were vested in the Congress.
3. The 2/3’s majority requirement to overcome a veto gives the President too much Legislative power. The requirement, if not outright eliminated, ought to be reduced to something like 60%. And in any case, a sustained veto should only delay implementation of a law duly passed by Congress for two years, so that whether the law should go forward or not becomes a campaign issue in the next Congressional elections.
4. The Legislative head should be able to be removed in a no-confidence vote just as in Parliamentary systems, although a majority negative vote in both Houses of Congress might be required.
5. Unless specifically embodied in the language of Treaties, the President should not be able to single-handedly terminate them (just as the President cannot unilaterally terminate laws with which he disagrees).
6. The President should not be able to pardon any member of his own Administration for any acts committed before or during that person’s service during the Administration, nor for any acts undertaken in support of the President, or in conspiracy with the President.
7. No emergency declared by any President should be allowed to last longer than the time necessary for Congress to convene and debate the alleged emergency, e.g., 60 days.
I know I’m just typing some words on a keyboard for a few readers. But the bottom line is, government by Presidential Edict looks like it is looming in our near future. Parliamentary democracies are far less susceptible to such autocratic power grabs than Presidential systems have been. Two hundred years of such history ought to be enough to learn the lesson. The remedy must be a clear circumscribing of Presidential authority, with an effective counterweight in the Congress.
[cut-and-paste from my email last Friday]
On 3/15/2019 9:02 PM, Xxx Xxxx wrote:
So you’re saying that if working people can vote to certify when they want, unions will come back? Explain further please.
* * * * * *
I thought it was sort of self-explanatory — sort of an automatic assumption. If you look at economies like Germany or Denmark where unions have not been illegally put out of business unions are sort of universally chosen. I don’t know why we should be any different.
The issue should be an automatic winner for Dems. People gone over to Trump — from Obama — are disgusted that the Dems never did anything for them. Well, there isn’t really anything anybody can do for them besides giving them their own power back. When people have the same political organization and cash that billionaires have along with most of the votes, then, life here can return to the same kind of equality we had when I was a kid in the fifties (if you were white, of course). Seems such an auto win I cannot imagine why the Dems would not pick it up,
[snip]
Why Not Hold Union Representation Elections on a Regular Schedule? Andrew Strom — November 1st, 2017
“Republicans in Congress have already proposed a bill that would require a new election in each [private employer] unionized bargaining unit whenever, through turnover, expansion, or merger, a unit experiences at least 50 percent turnover. While no union would be happy about expending limited resources on regular retention elections, I think it would be hard to turn down a trade that would allow the 93% of workers who are unrepresented to have a chance to opt for unionization on a regular schedule.”
https://onlabor.org/why-not-hold-union-representation-elections-on-a-regular-schedule/
* * * * * *
Nothing could evaporate the misguided support for the New York loudmouth-in-chief faster than pushing with all our energy for a long overdue federal labor rule mandating regularly scheduled union certification elections at every private workplace. I would suggest one, three or five year cycles — local plurality rules.
Nothing could turn America into a just, German like, democratic economy faster. People are disgusted with the Dems doing nothing for them — nothing defined as not reviving their own dormant (almost deceased) union power, even if they don’t know it consciously.
Denis.
This is beyond tiring. Read the bill you are constantly referring to. It is the total opposite of what you say you want.
Yes, it calls for “elections” regarding the formation of unions. It also calls for the power to call those “elections” be totally in the control of the employer.
Employees would have no right at all to call for an election. Employees would have no right to vote in a regularly called election.
They would be totally under the control of the employers.
You need to stop.
NDD:
Certainly your discussion deserves far better treatment than what I have seen in the last few days of comments quibbling back and forth on unrelated topics. I agree with you we are on a perilous course to which there appears to be no correction. I do not believe the House is representative of the population as it was meant to be. The 1929 Reapportionment Act locked in the numbers at 435 representatives making it susceptible to a minority of the population being able to preside over a majority and disrupting the balance of power agreed upon by the Founders in establishing both legislative bodies with one representing population and the other representing by states. The 1929 Reapportionment Act needs to be revoked and relegated to the trash bin of politics for which it was put in place.
The filibuster was never meant to be. Aaron Burr’s pondering whether the “Previous Question Motion” was still needed because Senators are supposed gentlemen and there is no need to have such a legislative rule in place should have never been decided upon as being unnecessary. The filibuster has grown in popularity as has legislating by party politics over country. Filibustering since Aaron Burr has grown in popularity and was used to block a black president in office only due to the color of his skin rather than what he proposed. Compare such to today’s president who one could portray it as being of the opposite perspective.
Legislating by Executive Order is gathering popularity with Reagan being the biggest user of them of recent presidents and Obama using the fewest of them since Grant. If one were to drop Franklin Roosevelt from the count, Republicans have easily surpassed Democrats in using Executive orders to legislate. It does need to be curtailed s no one person should be allowed to legislate or ignore the law as passed by Congress. Trump appears to be a president to legislate by personal beliefs and desires at the cost of much of the population. https://www.dailydot.com/layer8/number-of-executive-orders-per-president/
I do agree with your post NDD. We need a radical change at the presidency and in the legislative bodies to change this reign of witches.
The US stepped back from the brink due to the fairly lucky election of Lincoln. That might still have led to more dictatorship, except that Andrew Johnson became President after Lincoln’s assassination, with an *overwhelmingly* hostile Congress; Congress stripped the President of powers under Andrew Johnson, which gave us a sort of “reset”.
Yglesias doesn’t even talk about the other reason the Constitution is going to be removed: it’s simply not working. Any system which puts someone as manifestly incompetent as Trump into power will be discredited and tossed.
The 2/3 requirement for overriding vetos and for removing Presidents from office need to be removed. Also, the unrepresenative, undemocratic Senate needs to be abolished. We could actually fix most of the problems with four Constitutional amendments:
(1) The powers previously vested in the Senate shall henceforth be vested in the House of Representatives.
(2) Impeachment proceedings shall henceforce require a simple majority for conviction.
(3) The President shall not have the power of veto.
(4) Federal judges shall serve terms of no longer than 14 years.
Nathanel:
Welcome to Angry Bear. First time comments go to moderation first to weed out spam and advertising. The constitution does work if we quit fooling around with it. For example, the 1929 Reapportionment Act is clearly unconstitutional.