“Presidential Leadership & The Separation of Powers”
Eric A. Posner
Daedalus, Summer 2016
Just consider the state of political discourse in the US. One side advocates for restricting unwelcome speech and, at times, seems to think that only wholesale rebuilding of the American system into a parliamentary one will result in the desired, I’m tempted to say proper, outcomes. On the flip side, you find advocates for restricting behaviors of which they do not approve.
Almost as important, and far more troubling, is the notion, never quite stated but acted upon as if it were true, that if you win the White House the program presented on the campaign trail should be enacted quickly and without a single change.
To be fair, that last bit seems to be believed on both sides.
What gets lost in both those outlooks is that there is an actual system in place. It just doesn’t guarantee the preferred and desired outcomes of either side. How so? Eric A. Posner, a professor at the University of Chicago Law School and son of retired federal judge Richard A. Posner, offers an explanatory framework in this paper from the Summer 2016 issue of Daedalus.
Professor Posner begins by making an important distinction. Political scientists and historians, he says, celebrate presidential leadership. Legal scholars “almost universally take a critical attitude toward the president.” Now why would that be?
Well, as the more astute members of the arguing factions described above will admit, the Constitution is silent more than it speaks, and nowhere more so than when it comes to how things will actually operate. See for yourself. Here’s a prime example from Article 1, the section that deals with Congress: ” Each House may determine the Rules of its Proceedings…” There’s a recipe for uniformity and consistency.
But back to Posner. The Constitution, he notes, is mum on any number of subjects, leadership most notably among them. Look at the qualifications for president. You’ll find age, birth and residency but the word leader is never mentioned.
And while Article II says the executive power is vested in the president, what does that really mean? Congress has set up any number of semi-autonomous entities that are not subject to the direct exercise of Presidential power. A notable example is the Federal Reserve system.
The jury is even out on whether the departments of the Executive branch are ultimately subject to the president. There’s a reason the Constitution addresses the Legislative branch before the Executive branch and why the presidential oath says “I will… faithfully execute the Office…”
None of this is small beer. You can find proponents and opponents of the Trump administration still arguing the point, the issues with the Department of Justice serving as a particularly vivid example of opposing views on the subject. The argument is as old as the Constitutional Convention. For all the advocating Hamilton did on behalf of the Constitution as Publius, as a member of Washington’s cabinet and staunch Federalist he pushed for as much executive authority and leeway as any other administration ever has.
Posner argues that the checks and balances enshrined in the Constitution– the Madisonian system–was designed to make either executive or legislative tyranny less likely. He states “…the Constitution–more by implication than language–creates a group of leaders…”
You can see where the opening exists for the lawyers to get going right there.
As Posner admits, a couple of problems quickly emerged with the new government and one of them had been sitting in the room throughout the Convention. It’s entirely likely that every delegate wanted George Washington to be the nation’s first president. Yet Washington, a living legend, was bigger than any group.
Almost immediately, then you had a leader of the executive branch and a leader of the nation embodied in the same person. But there’s something else not mentioned in the Constitution: political parties.
Madison wasn’t oblivious to these, but I’ve always thought he found them slightly tawdry and, therefore, unnecessary. Read Federalist 10, in which Madison speaks of how the impulses of factions can be used to temper their effects, and you’ll get the very real idea he sees these as ad hoc groups and not a permanent fixture. Yet there sat Washington, leader, also, of the Federalist Party.
There’s one more wrinkle: most of the employees of the government, at this point, work for the executive branch. So you have career employees and political appointees in the mix, too. Virtually none of this appears in Article II, but it’s our reality.
What’s a president to do? Well, we know what the ones beloved by political scientists do: they push the envelope of the comparatively few written rules. That’s the same reason lawyers bemoan these guys–extra-legality, or loose construction for the poli sci crowd, defines them. Maybe some other day we’ll get to Woodrow Wilson in his professorial role and why thinking this way is the norm.
Professor Posner notes that different people with similar leadership qualities can be greater or lesser leaders depending on context. He’d like to find a common ground for leadership that works to sustain the best and constrain the worst. It’s best shared more fully:
“Leadership depends on trust, but people tend to distrust those who exercise power over them–the president above all. Presidential leadership is constrained by deep egalitarian and anti-authoritarian norms [emphasis added] that constantly replenish the well of suspicion from which the public draws when it evaluates presidential rhetoric and action. …In the United States, conspiracy-mongering by alienated political minorities combines with pervasive egalitarian resentment…to provide a checking power far more significant than the paper barriers of the Constitution.”
It’s not often that social scientists in any discipline get to run an experiment in the real world. We’re running one right now on Professor Posner’s hypothesis.
Preliminary data seem, at best, uncertain.