The future of the Presidency

In our last post, we summarized the duties and powers of the President as outlined in the Constitution. In this post, we consider how well the defined duties and powers have squared with historical experience.

First: We find ourselves in agreement with the Framers on the necessity of a unitary executive with the necessary  “energy, dispatch, and responsibility” to see that the federal government properly performs its functions. These functions are to protect the people of the United States in the enjoyment of their rights and to be a good steward of the national commons.

Second: We have little quarrel with the outlined duties of the President; only in some aspects of how they have historically been discharged, as is perhaps inevitable.

Above all else, the President is to “preserve, protect, and defend the Constitution of the United States.” We can hardly argue with this.

Of the more specific duties laid out in Article II, Section 3:

• It is his duty to keep Congress informed regarding the condition of the nation.

We fully agree with this in principle. However, we strongly object to the political circus that is the State of the Union Address, for reasons that begin with those that writer Kevin D. Williamson has outlined so ably.

An annual ritual, highly politicized and surrounded by thoroughly un-republican pomp and ritual, is almost precisely the wrong way for the President to discharge this duty. The President should be keeping Congress informed on the status of the nation more or less continually and in writing. We have no objection to a special annual written report, as was the practice over much of the course of this country’s history. But a televised speech only contributes to the political aspects of the Presidency, which we believe should be suppressed as much as possible. The State of the Union Address has become a polical appeal to the nation rather than the executive report to Congress that Article II, Section 3 speaks of, and one that is wholly lacking in candor.

The State of the Union Address is only one aspect of a larger problem, which is that the President is more interested in reporting to the voters than to Congress. This is perhaps an inevitable result of the President being chosen, in effect, by a weighted plebiscite, but it is regrettable nonetheless. We find ourselves wishing that a custom had grown up of the President clearly distinguishing between campaign speeches, directed to the people, and his official function of reporting to Congress. In fact, “fireside chats” from the Oval Office were not an aspect of the Presidency through most of the country’s history, and we regard them as an aberration prompted by the invention of mass media. No President should speak directly to the people from the Oval Office; only from venues clearly not associated with his official duties.

We call attention to the norm, in effect at least through the Civil War, that it was unseemly for a candidate for President to publicly campaign for the office. Campaigning took place through intermediaries — supporters in the press and other politicians. This tradition was first weakened by “front porch campaigns” in which candidates gave stump speeches literally from their front porches, beginning with Garfield in 1880, and then discarded entirely in the 20th Century.

Congress has the power to change at least some aspects of this unhealthy political culture. The President gives the State of the Union Address at the invitation of Congress; all Congress needs to do to end the practice is to not invite the President to speak.  The reason it does not is that a Congress controlled by the President’s party stands to gain from the speech, while a Congress controlled by the opposition party stands to lose from the perception that it is insulting the President by not inviting him to speak. There is also, we believe, a widespread misconception that the address is mandated by the Constitution.

Congress might conceivably pass a statute forbidding the President to address the press or the public from the White House. We think this would be salubrious, but we also recognize it would be politically all but impossible, and it is possible the courts would rule that Congress cannot impose such a prohibition.

The trappings of office of the President have gotten out of hand in more than the State of the Union Address. To be sure, we cannot object to the practice of standing when the President enters the room; he is, after all, the chief magistrate of the federal government. And an officer with such heavy duties needs an official residence and staff, and, in our violent world, a security detail. But we would like to diminish the other trappings of office as much as possible. The very existence of “Hail to the Chief” as an official protocol is profoundly un-republican.

At least it is the practice for most press briefings to be given by an underling. And we have managed to limit the President’s honorific to “Mr. President”, avoiding one of John Adam’s worst conceptions of the office.

For the moment, aside from urging Congress to cease inviting the President to give a State of the Union Address, we call on the President to remember his oath of office, and consider that he might best preserve the Constitution by establishing new norms for his office in line with what we have suggested here.

• It is his duty to recommend legislative measures to Congress.

Some of us argue for reducing the President’s legislative role by removing this as an explicit duty of the President. Of course, there will always be back channel communications between the President and Congress in which the President will urge his program on Congress. But a norm that the President does not publicly propose legislation to Congress might make it clearer that the President is a magistrate and not a lawgiver.

However, others of us believe that the members of legislatures may be too focused on their particular constituents to reliably propose truly national legislation, focused on the common good of all the states. The President (and Vice-President) are unique under the federal constitution in being elected by electors from all the states. At least in theory, this puts them in a better position to consider the needs of the nation as a whole.

A few of us actually go the other way, and suggest that the President be given an explicit constitutional duty to prepare a federal budget and to present this to the House for their approval. Only appropriations requested by the President could be considered by Congress, which would retain the power to reduce or reject individual items from the President’s budget, and present the result to the President as a single bill. This would be an alternative to a presidential line item veto that might accomplish the same ends while permitting more meaningful negotiation and deliberation in Congress.

• It is his duty to act as head of state by receiving foreign emissaries (ambassadors and ministers).

We have no objections, theoretical or historical, to this duty and the manner in which it has been exercised.

• It is his duty to see that the laws of the Republic are faithfully executed.

Again, we can hardly argue with this.

There is a well-established norm of insulating the Justice Department from the direct supervision of the President, on the grounds that criminal investigations must be apolitical, but the President is a political figure. The Attorney General is expected to be apolitical and impartial in seeing that federal criminal law is enforced fairly. Thus, while the President is not constitutionally prohibited from issuing executive orders to the Attorney General directing any of his activities, there are well-established norms, supported in some cases by statutory law, prohibiting any intervention by the President in specific cases and limiting the general direction given to the Attorney General by the President. The President may, for example, urge the Attorney General to emphasize drug enforcement, or immigration enforcement, or counterintelligence, as circumstances dictate; but he cannot rightly urge vigorous prosecution (or nonprosecution) of a particular suspect in a particular case or even express an opinion on what the outcome of an investigation or criminal trial should be.

This has worked out reasonably well in practice. In jurisdictions where district attorneys are elected, there have been clear abuses, such as the Duke lacrosse case in which a district attorney facing a tough party primary disregarded strong exculpatory evidence in a racially charged rape accusation. The district attorney was ultimately disbarred for his misconduct, a very rare occurrence. Earlier history under Jim Crow reversed the roles, with elected prosecutors declining to vigorously investigate and prosecute crimes against minorities. This history points to the pitfalls of electing a district attorney by popular vote. The attorney general of the United States is nominated by the President and approved by the Senate, rather than directly elected, which has helped keep the office from becoming too political.  Whatever his other failings, Bill Barr refused to support Donald Trump’s spurious claims of widespread election fraud in 2020. John F. Kennedy’s appointment of his own brother as Attorney General was widely and rightly criticized.

• It is his duty to deliver commissions to all officers of the United States.

This is uncontroversial.

Of the president’s powers:

• The power to veto legislation

is limited by the ability of Congress to override vetos. It is also limited to blocking legislation rather than promulgating legislation. It is nonetheless a considerable entanglement of the executive in the legislative process. However, the Framers’ reasons for the legislative veto — to check unconstitutional or otherwise ill-advised legislation and to protect the prerogatives of the President — seem to us to remain valid. A few of us are inclined to favor lowering the threshold for overriding a veto to three-fifths of each house, but the majority of us see continuing value in the President being able to block legislation that does not have a strong consensus behind it in Congress. Weighty legislation should not be enacted by narrow majorities.

• The command of the military

is as problematic as any of the President’s powers, particular in the post-World War II era, when actual declarations of war have become problematic under international law. The current practice, in which the President has considerable authority to initiate action when there is a sudden outbreak of hostilities, but must seek ratification of his actions by Congress within a short span of time, may be the best we can do. The ability of Congress to make rules for the armed forces, and of the Senate to reject the President’s nominations for commissioned military officers, will also continue to be useful checks on the President’s war making powers.

• The answerability of department heads to the President

and the associated executive privilege seem relatively unproblematic to us.

• Executive clemency

also seems relatively unproblematic; the power was abused by Bill Clinton and by Donald Trump, but not to the extent that it became a serious threat to the republic.

• Promulgating treaties

according to the constitutional pattern has worked reasonably well. It is not possible for a legislature to negotiate effectively with a foreign power, such negotiations being the province of diplomats (of whom the President is ex officio chief.) The greatest historical abuses here have been either to negotiate something less than a treaty, but treat it as still binding on the United States, as with JCPOA; or to refuse to submit a treaty to the Senate for ratification while issuing executive orders to put it into effect, as with the Comprehensive Test Ban Treaty. Both abuses* are a significant problem, but either can be corrected by subsequent administrations, which can either repudiate unratified treaties or submit them to the Senate and which can abrogate agreements short of treaties on their own authority. Ultimately, we should seek to establish a norm that a President who negotiates a treaty but refuses to submit it to the Senate has obviously not sought the advice and consent of the Senate and is in violation of his oath of office.

Under U.S. constitutional law, a treaty is something that has been negotiated with the advice and consent of the Senate and duly ratified. However, there is a real danger of signed agreements that are not treaties nor considered binding under U.S. law being considered binding under international law. The president cannot be permitted to play fast and loose in this area.

• The appointment power

is unobjectionable as presently structured. We have already examined its value in connection with the Attorney General, where the process provides a significant political shield around what should be a highly apolitical duty.

Regarding the checks on the President: The limited term in office of the President is solidly established. The other most important check on the President, namely, the impeachment power, is in our view effectively a dead letter. We are almost unanimous in believing that the last three impeachments ought to have ended in convictions and removals, and that there should have been other impeachments and removals as well within the last five decades. We do not aim for what would amount to a parliamentary system, but we are alarmed that a President who acted as Donald Trump did on January 6 was not convicted by the Senate. Alas, we have no ready solution to offer, except to appeal to the self-respect of the Senate; and we fear that that appeal will fall on deaf ears in the future.

While our review of the duties, powers, and checks of the President has included some few suggestions for refinement, we do not believe that there is anything fundamentally flawed in the structure of the office. In our next post, we will make the case that the most pressing problem with the Presidency is in the process of election to that office, which we suggest has now given the country at least two utterly unfit Presidents in succession, one from each major political party. A process producing such results must be judged as fundamentally flawed.

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*We emphasize that we are speaking of the abuse of constitutional process here, and not offering an opinion on the merits of the agreements themselves.