Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch

3 The Problem of the Imperial Presidency

39 3 The problem of the imperial presidency When the constitutional drafters considered the possibility of excessive power in one of the branches of the national government , they worried not about the executive branch but about the legislative branch. As James Madison wrote about the legislature in Federalist 48, “it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.”¹ Madison identified multiple concerns with the legislative power: Because the Constitution grants Congress powers that are more extensive and less bounded by precise limits than those of the executive or judicial branches, Congress is in a better position to exceed its authority and invade the prerogatives of other branches. In addition, only the legislative branch has the power to levy taxes, leaving officials in the other parts of government dependent on Congress for their 40 The problem of the imperial presidency compensation. The leverage this creates facilitates encroachments on the executive and judicial branches by the legislature.² Alexander Hamilton amplified Madison’s concerns. In Federalist 71, he discussed the “tendency of the legislative authority to absorb every other.” Because legislators in a representative assembly are inclined to think that they are“the people themselves,”they“often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.” The framers’ concern with legislative authority may seem odd after their revolt against the tyranny of King George III. In the Declaration of Independence, they documented no fewer than twenty-seven grievances about the royal abuse of power. But the Constitution was written after a decade of experience with state constitutions that had severely restricted executive authority and greatly expanded legislative authority. The original thirteen states had denied their governors the traditional prerogatives of kings, including the power to appoint government officials or to veto legislation. The states also created councils that were elected by the legislatures and that shared the executive duties with governors. Pennsylvania had no governor and relied instead on a twelve-member executive council. Governance by very powerful state legislatures turned out to yield its own form of tyranny, a democratic despotism characterized by unjust laws, constantly changing laws that bred confusion and instability, and legislative interference with judicial decisions. Legislatures, it was thought, were compromising property rights by the excessive printing of money and the cancellation of debts.³ While the experience with state governments exposed the problems with unrestrained legislative bodies, the experience with national government under the Articles of Confederation demonstrated the need for a strong executive authority. Under the Articles, there was no real executive, only a series of congressional committees. In addition, the states retained much of their sovereignty, forming an association more like the European Union than the United States of America that emerged under the Constitution. The “absence of a The problem of the imperial presidency 41 powerful executive hampered the war effort, limited the ability of the national government to respond to internal rebellions, and put the American people at a disadvantage in commercial disputes with foreign nations.”⁴ The framers compensated for the potential for legislative tyranny by weakening the legislative branch. As indicated in Federalist 51, the legislative power would be divided between a House and Senate. In addition, the two chambers would be organized differently, with distinct compositions and separate responsibilities, so as to keep them as disconnected from each other as possible.⁵ And indeed, the two branches of Congress have evolved over time with different ways of operating and a good deal of independence from each other. At the same time that the framers divided legislative power to prevent a dominant Congress, they tried to prevent a weak executive by granting the president substantial powers that were undivided. While presidents would share many of their powers with Congress, they would wield the executive branch’s share of the power as a unitary executive. Presidents alone would negotiate treaties, serve as commander in chief of the military, grant pardons, and nominate judges and senior executive branch officials. In addition, they were given a power to veto legislation passed by Congress.⁶ In the view of the framers (though not the Antifederalists, who...