Balkinization  

Wednesday, November 02, 2005

The Constitutional Trifecta: A Problem of Executive Oversight

JB

The American constitutional system divides national powers into three branches, and then allows each branch to check the others while preserving their independence. The purpose is to diffuse power and allow ambition to counter ambition. If the President becomes too monarchical, Congress or the Courts will oppose him and take him down a notch; if Congress tries to concentrate power, the President can veto legislation and the courts can strike it down or read it narrowly. If the courts get out of line, the President and the Senate can appoint new judges and Justices, or threaten to limit the court's jurisdiction, and so on.

Behind this theory is the assumption that the different branches will have different interests premised on their institutional loyalties. The President will seek to protect and extend executive power, the Congress legislative prerogatives, and the courts judicial authority. As Madison explained in Federalist 51, this was the point: "the interest of the man must be connected with the constitutional rights of the place." Presidents, because they were presidents, would always check a Congress that seemed to encroach on their authority; Congress, because it was Congress, would always have incentives to oversee Presidential malfeasance, first because the President was not doing what Congress wanted, and second, because ambitious Congressmen and Senators could make a name for themselves by exposing executive overreaching and corruption.

There was, alas, a fly in the ointment. The framers did not expect a party system; they opposed political parties, thinking them bad for democracy. As it turned out, they were wrong. Political parties, and in particular mass political parties, became necessary to democracy, because they allowed groups with very different interests to pool resources, make compromises, and push for common agendas; a two party system combined with a first past the post rule in elections tended to push American politics repeatedly toward the center.

Even so, the system of checks and balances was threatened by the party system. If Congress and the President were controlled by the same party, they would tend to work together, and if the same party controlled the courts as well, the courts would be less likely to exercise much supervision. A Congress controlled by the same party as the President would see the President's fortunes as wrapped up with the fortunes of the party and its success in American politics; investigating the President, or embarrassing him, or standing up to his authority would be far less likely. Although the Congress has the power to initiate investigations, and the power of subpoena, that power would be less likely to be used to undermine a President of the same party. And although the courts stood ready to enforce constitutional rights, they were limited in what they could do, and as political scientists repeatedly have shown, they tended to cooperate with the dominant national political coalition rather than oppose it.

Thus,when one party controlled all the branches of government, it won what I call the "constitutional trifecta." All three branches are working more or less together to achieve the party's goals, and the American system begins to approach a parliamentary system in which the executive runs the show with almost no one to stop him (because no one in power wants to stop him).

The constitutional trifecta is relatively rare in American politics because of regular elections, which make it hard for one party to consistently maintain all the levers of power. And even if that occurred, there was still one fail safe: if the President and Congress were controlled by the same party, the party might lack ideological coherence. Parties consist of different groups with different interests who come together for mutual advantage. If the party contains people with very different views, some Congressmen and Senators from the President's party will still have incentives to criticize or oppose the President. Thus, when the Democrats held all levers of power during the New Deal and the 1960's, southerners in their coalition often joined with Republicans to slow down or oppose legislation or Presidential initiatives; conversely, the liberal wing of the Democratic Party joined with a few Republicans in the mid 1960's to oppose America's involvement in the Vietnam War.

So the rise of the party system does not undermine Madison's original vision if there are (1) regular elections that keep control of particular branches of government continually shifting over time or (2) if the parties themselves lack ideological coherence.

And that brings us to the present day.

Redistricting and other features of contemporary politics have made it very difficult to oust most sitting Representatives; the Senate also shifts control relatively slowly, although not as slowly as the House. Perhaps more important, the two major political parties have become increasingly ideologically coherent and increasingly polarized. Parties are no longer pushing American politics toward the center and toward compromise. Instead, the Republican Party now tries to govern largely by amassing majorities of its governing majority, and by shutting out the Democrats from aspects of decisionmaking wherever possible.

Because the Republican party is relatively ideologically coherent, the Republican Congress has been unwilling to investigate or oversee the President's malfeasance and maladministration, and certainly to the same the extent that they would if another party were in power. The Democrats in Congress do not have the power of investigation or the power of subpoena. As a result, they cannot check the President's ambitions or his misuse of power. Madison's vision of ambition counteracting ambition has not been realized. It is not surprising then, that the present Administration has gotten away with a lot that will never see the light of day. And it is not surprising, particularly in a time of war when national security concerns are at their highest, that the President has grabbed for more power and no one has been able to resist him or push back at him.

The decision to go to war, allegations of misuse of intelligence and pressure on intelligence agencies to hype intelligence, the Administration's lack of candor about expenses for the war and about the number of troops needed, the misfeasance and mismanagement of the war and the occupation, cronyism and lack of oversight in the policies regarding government contractors, the use and abuse of the Patriot Act and related law enforcement decisions, and the Administration's detention and interrogation policies, are all areas in which Congress might have used its legislative and investigatory powers to check the Executive and prevent overreaching, incompetence, illegal activity and and bad judgment. But the Republican controlled Congress has not seen this as being in its interest. And so they have let the President get away with a great deal, without holding him accountable.

The press is a possible check on executive power, but its tools are limited. It depends on information becoming available, and all it can do is publicize misconduct and overreaching so that other government officials can take action. When Congress does not wish to counteract the President, this publicity has limited effect, and when Congress cooperates with the President by not bringing misconduct to light, the press is doubly hampered.

These factors suggest why the framers' vision of checks and balances has not operated effectively in our current situation. The framers understood that enlightened men will not always be at the helm; however, as long as there is a check on their ambition, their hubris, and their bad judgment, the system will push them to behave more responsibly or will at least counteract their most serious excesses. But in the past five years, a President unbound, and responsible to no one, has produced a set of disastrous policies (or disastrous implementations of policies) that have wasted our resources, endangered our security, and violated human rights.

With all this in mind I must confess some sympathy for Harry Reid's stunt yesterday: using a parliamentary maneuver to order the Senate closed in order to dramatize Congress's lack of oversight over the President's misuse of intelligence in the run-up to the Iraq war. If the constitutional system were working as designed, this Congress would have repeatedly demanded proof and assurances about the costs of the war, and the justifications for war; it would have repeatedly provided needed oversight when the Executive stumbled in its management of the occupation and in its policies regarding government contractors; it would have exposed corruption, cronyism and malfeasance, and it would have given the Administration abundant incentives to clean up its act and perfect its skills at governing. But the constitutional system is not working as designed. We have a corrupt, crony-filled Administration driven by stubbornness, hubris, and unrealistic ideas, an Administration which disdains good governance and relies on spin, propaganda, and political hardball to push its policies forward heedless of their long term consequences.

Faced with such a state of affairs, and powerless to use the investigative tools of Congress to check Presidential incompetence and venality, the Democrats in the minority did the only thing left to them. They engaged in a public relations stunt to shame the Republican majority in Congress.

In the short run, it seems to have worked. Congress will now move forward with some sort of investigation into the Administration's use of intelligence. (How serious that investigation proves to be remains to be seen.)

But in the long run, these sorts of ploys won't be an effective substitute for a working system of checks and balances.

If Congress won't perform its assigned function of oversight, the only recourse is the American people. Will they become sufficiently engaged to put our constitutional system back in order, and once again let ambition counter ambition?


Comments:

The first theorist, to my knowledge, of "constitutional trifecta" was the Frenchman Benjamin Constant (the same person that Stephen Breyer uses to ground his constitutional theory). Constant's solution was to argue, against Montesquieu who so famously proposed divided powers, for another, "neutral power" that would function only negatively, to keep the other powers in bounds, notably in situations when divided powers colluded. A similar, more recent proposal is to be found in Roberto Unger's constitutional theory, where one finds a place made for a "destabilizing branch" of government that does what Constant's negative power does along with some other things. So perhaps JB is pointing out another "failure of the founding fathers." The rise of the party system is only one way in which the more general possibility of colluding powers could come to pass.
 

As a general rule I don't think the American people have the vaguest (my level of competence) notion of the various traditional structures, nor even a sense to the degree that they've been recently eroded by Republican rule.

And failure to know these things are not limited by the capacity of the press. It has a tendency to concentrate on the transient, the schools are also to blame and the fact that in many cases they completely neglect them shows the priorities of the "people."

Things like balance of powers, common law, double entry bookkeping, basic concepts to our civilization are considered the "other."

I do favor democracy, the vote provides a crude market which channels and directs often poorly informed opinions but which in balance though not in specifics does better than central control.

But reform does fall upon elites. We have seen recent actions by General Scowcroft and Colonel Wilkerson to rebalance things. I am however concerned that basic conceptions of the traditional system are being lost among leaders, perhaps expecially alleged "conservatives."

As one who is one's gut a populist I do heartily support the extension of elites which is simply individuals able to understand our system and have some influence if only among a few.

Presumably this is what we want from the net, te increase of an informed public. However even here one fears a flaw, the intellectual desire for quietism. Few blogs provide the tols to act on by routinely sending emails to politicians, bureaucrats and others.

Sorry if this rambles.
 

The bigger fly in the ointment is a piece of idiocy known as the 17th amendment, which ruined the whole system of having federal judges confirmed by a Senate consisting of STATE APPOINTEES, who did a darned good job of making sure the judiciary wasn't just a puppet of the federal executive and legislative branches.

Come the 17th amendment, everybody having any say in the composition of the federal judiciary suddenly has a stake in that judiciary always ruling in favor of greater federal power. That's what caused the New Deal's "switch in time", and all FDR's machinations only moved the timetable a few years.

They say no man should be the judge in his own case. It's not that much better to let a man, or a level of government, choose the judge in his own case, unhampered by any outside veto.
 

"It is not surprising then, that the present Administration has gotten away with a lot that will never see the light of day."

How do you know they got away with it if it hasn't seen the light of day? Indeed, how do you know it is there? Indeed, how can you be surprised by something you can't know exists?
 

The 17A followed an ongoing trend. Also, the factors you becry was a develoment of various issues in which the 17th was but a part. And, your pre-1913 history really doesn't match reality either. This fetish is curious.

Anyway, I'm unsure why the professor said: "I must confess some sympathy for Harry Reid's stunt yesterday." Why the caution? Yeah, it was just a single act: it's not going to solve the problem.

But, loud dissent by "factions," including those out of power, was a significant safeguard. The Senate as an institution especially recognized the importance of respect of minority interests, interests current practice is notably ignoring in various ways.

So, darn right you should have sympathy. Given this blog's ideological leanings, it is pretty unsurprising. So, why are you confessing like you suddenly found religion and thought abortion should be left to the states or something?

Strange. As to the "light of day" post, uh, taking him a tad to literally, aren't you? Yeah, signs are there etc., but a full airing was not made. So is the argument.
 

Fascinating intersection of factors unique to the day. Multiple parties and factions, I have to think, must have been in the framer's minds in some form, if not expressed openly. Perhaps not present in thought either was the blinding and international speed of information as it now propagates. It remains to be seen if democracy will progress as it has, or shift direction under such unique settings. Nonetheless, I have to say my impression of Frist's 'trust' comment was one of a passive-aggressive lament worthy of a child. The Democrats might do well to provoke and restrain from negative counter responses, if to no other effect than to continue the Republican stream of nigh guilt ridden denial.
 

This argument certainly isn't very persuasive as a historical matter. First, it's been the norm for one party to control both the Presidency and Congress since the Civil War. The Nixon and Clinton years might be about the only major exception. Second, the Republican party today, with its mix of libertarians (mostly in intellectual circles), business interests and working class evangelical Christians, is no more ideologically coherent than the post-Civil War Republican coalition or the post-New Deal Democratic coalition.

The one thing that might be historically novel, and the real reason why people like Prof. Balkin are driven to deep ruminations on the flaws in American's Constitutional structure, is that probably never before in American history have university professors been so divorced politically from the average American. But the flaw here is not in the Constitution, dude.
 

So essentially, the malaise is that the American people consistently think one of the parties, the GOP, is putting forward a platform that they think is pretty good, and the other one is putting forth a platform which repulses people?

Doesn't that suggest that the responsibility is on the Democrats to present an agenda that can capture a majority instead of alienating people?

If JB is right about the problem, the solution is for the Dems to return to planet Earth. If you guys just sit around, without any kind of evaluation of "are we sure that these are the right policies to push," and hope that eventually the American people will agree with you, you're going to be in the wilderness a loooooooong time.
 

The problem seems to be that crude act utilitarianism has become popular among Democratic party activists, together with a lingering socialist belief in "false consciousness". The result is people who think anything whatsoever is justified if it makes people better off, and who don't care whether the people think they're better off.
 

"Because the Republican party is relatively ideologically coherent ... "

I guess it depends on how far you're willing to stretch the meaning of "relatively."

Just to pick my favorite two Republican senators as examples, John McCain and Lindsay Graham have both proved themselves to be consciences of the Republican Party both with regard to Abu Ghraib, prisoner torture as such issues (on which, dare I say it, all decent people agree) and on such matters as the deficit and spending (where priorities may vary). McCain has even delved into the Abramoff affair, undermining Tom Delay and a few other members of the legislative branch.

We also can think of Chuck Hagel as a semi-professional Iraq skeptic.

We could mention that Sens. Specter, Chafee, Snowe, etc., stand in the way of the religious right really getting its way.

We could remember that the true conservative hated, and still hate, the Medicare prescription drug benefit, the farm subsidies, the highway bill, the energy bill, and many other spending projects that Bush has failed to veto.

I'll point out that my friends on the local Republican Central C'tee -- dedicated Bush voters and serious Iraq hawks all -- would happily shove every Bible-thumping UN-basher overboard if the ship didn't need every hand to sail to electoral victory.

Bush and DeLay have, until about a month ago, managed to maintain pretty good party discipline, but that is not at all the same thing as being ideologically coherent.
 

See also Federalist No. 47 for more support for Balkin's trifecta argument
 

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