Thomas J. Main is Professor in the Marxe School of Public and International Affairs at Baruch College.
We have often heard warnings about the imperial presidency at least since Arthur Schlesinger’s book with that title was published in 1973 and now after the Trump administration we hear them still more. Panelists at recent symposia at the American Enterprise Institute and Foreign Affairs magazine all believed Trump is “leaving the ‘imperial presidency’ alive and well.” New York Times columnist Charles M. Blow believed that under Trump we were. “drifting dangerously close to an imperial presidency that exists above and outside the rules we thought were designed to prevent such an occurrence.” In The Nation John Nicholas tells us “we must reassert the limits that protect us not just from Donald Trump but also from an imperial presidency.”
In response to these and many other warnings about a continuing slide into executive imperialism that hastened under Trump, three distinguished political scientists have produced a thoughtful op ed piece for the Times, “How to Tame the Presidency After Trump.” John A. Dearborn and Stephen Skowronek of Yale and Desmond King of Oxford warn that “Mr. Trump’s onslaught on the legislature exposed serious weaknesses in previous efforts to counter the rise of the presidency” and argue that a more effective approach would be for Congress, not to challenge the president, but cooperate more effectively with him. Their suggestions for doing so are interesting but their premise is wrongheaded. America does not have an imperial presidency. In fact, our nation has a chief executive much less powerful relative to the legislature than is the case in most other developed liberal democracies. Instead of an imperial president we have a mussel-bound Congress.
To put talk of an imperial presidency in perspective it is useful to go back to the original evaluation of the relative strengths of the three branches by the founders. Hamilton’s accurate description of the judiciary as the “weakest” and therefore “least dangerous” branch is famous. Less remembered is Madison’s equally apt characterization in Federalist No. 51 that “In republican government, the legislative authority necessarily predominates” while “the weakness of the executive may require, on the other hand, that it should be fortified.”
Madison expands on this sizing up of the relative strengths of the branches in Federalist No. 48:
The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex… in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.
In Madison’s analysis it is the greater proximity to the people—the ultimate source of power in a republic—that strengthens the legislature over the executive. Modern political science comes to the same conclusion for somewhat different reasons.
One of the most comprehensive reviews of the impact of constitutional design on political outcomes is the anthology Do Institutions Matter? Government Capabilities in the United States and Abroad, edited by R. Kent Weaver and Bret A. Rockman. They write, “In parliamentary systems centralization of legislative power presumably decreases the alternatives open to interest groups and party discipline makes appeals to individual legislators an almost hopeless strategy in terms of changing policy outcomes.” If citizens from a particular locale do not like a bill being considered by parliament, there is little point in them lobbying their representative in parliament against it. If the local parliamentarian is in the minority, they cannot help as they will simply be outvoted; if in the majority, they most likely will not want to help, because effective party discipline means backing party policies. If the local parliamentarian and enough others of the majority party vote to defeat a bill supported by a prime minister of their party, then not only does the bill not pass, but the prime minister no longer has a majority. The result may well be a national election to select a new parliament to pick a new prime minister. In parliamentary systems, nominations to run for parliament are made by the party itself, not through primaries as in the U.S. Therefore, if the parliamentarians who defied their party’s prime minister want to run for reelection, they will have to ask the party they threw out of office to renominate them to run for their old seats, which is unlikely to happen. Thus, in a parliamentary system, refusing to support the prime minister of one’s party to please a constituent or lobbyist is a career-threatening move that most members of parliament will seldom risk.
The incentives facing legislators in a separation-of-powers system are quite different. When the chief executive is elected independently of the legislature, constituents and lobbyists have a much easier time influencing legislators. If, for the sake of satisfying a given interest, legislators vote against a bill supported by a president of their party, their unfaithfulness is likely risk-free. The president remains in office regardless of how the legislature votes, so breaking ranks with him or her has few consequences. When an uncooperative legislator is up for reelection, their nomination to run again depends on winning a primary, not on the decision of the party or the president. In short, separation of powers strengthens the legislature relative to the executive because it makes defiance of the executive much less risky. But separation of powers also weakens the ability of legislators to resist lobbyists, and therefore strengthens lobbies and encourages their formation. Legislators—with no responsibility for picking the president or carrying out his or her agenda—are left free to pander to their constituents. Citizens expect no less and withhold their votes if their representatives fail to deliver the goods. Congress is thus held hostage by well-organized lobbies.
In short, separation of powers simultaneously strengthens the legislature relative to the executive but weakens it relative to lobbying interest groups. Thus we have a Congress that is strong in the sense of being able to defy the president and get what it wants but weak in the sense of being able to produce coherent legislation. Congress gets what it wants but what it wants is, not to legislate in the traditional sense, but to service lobbyists and be reelected. Thus we have a mussel-bound Congress: powerful but ineffective in its core task.
Decades ago a pluralistic defense used to be offered to this dominance of interest groups. Every collectivity that wants something out of politics—farmers, Catholics, manufacturers, minority groups, bankers, mining companies, unions, etc, etc.—organizes, gets serviced by Congress, and is partially satisfied. Everybody gets something; nobody gets nothing; how nice. But modern political science undermines this defense.
The weakness of the pluralistic account of interest group politics is well known and most tellingly articulated in The Logic of Collective Action by Mancur Olson, published in 1965. His point is simply that some potential political factions organize much more easily than others and end up exploiting those others. Small, self-aware interest groups whose individual members have much immediately at stake organize more easily than large groups whose individual members have little at stake and are unaware of their interests. Further, such large, potential interest groups face a free-rider problem, as the costs of political organization are high for their potential members relative to the likely benefits, which accrue to the active and inactive alike. Thus in pluralist liberal democracies, the special interests benefit at the expense of the general interest, and public goods are underproduced.
These problems are inherent in the pluralistic politics that characterize all liberal democracies. But they are magnified by America’s separation-of-powers Constitution which weakens the ability of Congress to resist interest groups. And when Congress gives in to interest groups the result is not that everybody gets something. Rather, well organized special interests run the table and the broad, unorganized public hardly puts in an appearance.
Congress is an intensely parochial institution in the sense that it is controlled by local interests and has no institutional sense of a broader mission or purpose. It is very difficult for American government to act in situations where such a national perspective is needed, and when it does act the result tends to be weak, jerry-built policies that are incoherence and ineffective.
The political science literature abundantly documents this dysfunctional dynamic. Perhaps the most recent example is the Affordable Care Act (ACA), also known as Obamacare, which has accurately been describes as “an incredibly complex patchwork that no one would have favored or designed if working from the ground up.” The same has been said for recent policy in education, taxation, welfare, and energy.
What is needed is constitutional reform that insulates Congress from lobbying and strengthens the hand of the president. The two concepts are complimentary. The president, being elected by a national body—the electoral college—has a nationwide perspective and an incentive to leave a legacy of effective policy change. The presidency is the Constitution’s institutional force for coherent political action, so that office must be reinforced vis-à-vis the parochial Congress. And Congress will not heed the president unless it can resist the now irresistible lobbyists. We need a Constitutional change that kills these two birds with one stone.
Professors William G. Howell and Terry M. Moe offer a good suggestion in their book, Relic: How Our Constitution Undermines Effective Government—and Why We Need a More Powerful Presidency. They support a constitutional amendment that would allow the president to submit a legislative agenda directly to Congress, which would be required to promptly vote the entire package up or down, without amendments and on a strict majoritarian basis. The essence of their idea is to strengthen the agenda-setting power of the president, whose new role would be somewhat closer than it is now to that of a prime minister under a parliamentary constitution.
Given the difficulty of amending the Constitution, wholesale revision—like switching to a parliamentary system—is impossible. Howell and Moe thus propose their very limited but highly consequential constitutional amendment. As they summarize it, “the president would propose. Congress would decide, up or down.” The process would not allow constituency-pleasing amendments to the president’s legislative package, and the entire agenda would become law if Congress did not act within ninety days. Such a change would do no more, the authors show, than extend to all policy matters the fast-track authority that presidents now enjoy in trade deals.
The authors’ idea follows neatly from their diagnosis: They rightly see that the problem is a localistic Congress with powerful incentives to serve narrow interests, and convincingly argue that the solution is a stronger president who is ready to implement a national agenda. “Presidents,” they write, “are the champions of coherence and effectiveness in a fragmented, parochial political world.”
Howell and Moe’s proposed amendment is relevant here because it goes directly to the heart of the primary constitutional cause of American government’s collective-action problems: separation of powers. Again, separation of powers not only empowers the legislature relative to the executive, but also makes it easy for legislators to disagree with the executive and please pork-seeking constituents, which in turn makes the legislature easy to lobby. And by making lobbying easy, separation of powers guarantees a plethora of lobbies and interest groups. In parliamentary systems where the legislature picks the executive, legislators who oppose their executive are a threat to the ruling government and hence, party discipline is strong. Thus, pandering to constituents happens less often, which is to say, lobbying the legislature is hard and hence, fewer lobbies form. So separation-of-powers constitutions, such as America’s, facilitate the interest group swarm that fragments political decision making and discourages collective action, while parliamentary systems mitigate that problem.
Obviously, a shift to a parliamentary system is unsuited to American tradition and political culture, and therefore impossible. But Howell and Moe’s proposal is a small step toward taking a cue from parliamentary systems by making Congress harder to lobby than it is now. Under their plan, once the president’s legislative agenda is submitted to Congress, no lobbyist-pleasing amendments could be added to it. The coherence of the president’s agenda would be preserved, although Congress could still service pork-seeking interests through other legislation. And the ability to advance a coherent legislative agenda is exactly what is needed to improve the collective-action potential of American government and make effective action against the many social problems we now face a more real possibility.
But while strengthening the president is crucial, how the president is strengthened is crucial as well. In recent decades, presidents have resorted to anti-democratic scheming to break through gridlock with Congress. Of course, the centuries-long stability of the American constitutional system wards off overt coups, but less bald-faced schemes to overcome standoffs with the legislature are not unknown. The Iran-Contra episode was such a maneuver. So, too, was the notorious mendacity of the George W. Bush administration in its relations with Congress. Trump’s overall contempt for Congress is a similar phenomenon. In so far as the idea of an imperial presidency has any reality it is in reference to these and similar episodes.
There is a whole school of thought–the “unitary executive” theory of the presidency—that amounts to no more than a carte blanche for chief executives to play the hardest hardball possible with Congress on the grounds that otherwise they will accomplish nothing. The problem with unitary executive theory is not so much in diagnosis as in prescription. Proponents of that approach torture the constitutional text to justify virtually every lie and abuse presidents can deploy against Congress on the essentially Machiavellian ground that anything less is unrealistic.
A far better approach is to recognize that in the modern world the president needs still more fortification that the founders provided. If the president’s hand with Congress were strengthened constitutionally, in a clearly prescribed manner and for specified purposes, the excuses for abuses would be removed. Moreover, if presidents had the power to present Congress with legislative agendas that had a real chance of being passed in a coherent form, the executives would find their energy better compensated in that endeavor than in running arms, fudging testimony, and similar tricks.
There are other measures that could be taken to recalibrate the constitutional balance of power to provide for a more disciplined Congress and a more vigorous president. One would be to repeal the Permanent Apportionment Act of 1929, which fixed the size of the House of Representatives at 435 seats. The smaller a legislature, the easier target it makes for lobbyists who have fewer members they need to influence. The American House of Representatives is small by international standards for lower houses. The French National Assembly has 577 members; the Italian Chamber of Deputies, 630; the British House of Commons, 650; the German Bundestag, 709. Based on these precedents it is clear that the size of the House of Representatives could be at least doubled and still remain manageable. In response to objections about increasing the size of government Adam Garfinkle in American Purpose offers a tantalizing idea: require the members of an expanded Congress: “to spend only eight to ten weeks a year in Washington, five to eight weeks liaising with state Houses in their respective state capitals, and living and interacting with voters amid their own home constituency the rest of the time.” Physically dispersing representatives across the continent would certainly hobble the lobbyists. It is for similar reasons that the Constitution requires that the members of the Electoral College never gather in one local but instead meet in their individual states; bribery and other undue influence was thus inhibited. But whatever one thinks of Garfinkle’s idea, expanding the size of the House is a way of weakening the hold of lobbyists on Congress that does not require a constitutional amendment.
To sum up: we do not have an imperial presidency but an underwhelming presidency. The solution is emphatically not to encourage presidents when they seek to even the odds by resorting to lies and abuses. A better approach is to explicitly strengthen the agenda-setting power of the president in a specified manner for delimited purposes.
 R. Kent Weaver and Bret A. Rockman, “Assessing the Effects of Institutions,” in Do Institutions Matter? Government Capabilities in the United States and Abroad, edited by Weaver and Rockman(Brookings Institution Press, 1993), p. 28.
 William G. Howell and Terry M. Moe, Relic: How Our Constitution Undermines Effective Government—and Why We Need a More Powerful Presidency (New York: Basic Books, 2016),p. 68.