Balkinization: Redesigning the Presidency

Redesigning the Presidency

Many people are now worried that George W. Bush is planning a useless surge in Iraq (useless because too little and too late) and that there seems to be very little we can do about it because Bush will never have to face election again. Sandy sees this as an example of our dysfunctional Constitution, while Marty is currently engaged in a very interesting analysis of whether Congress can limit appropriations or the use of troops.

But stepping back for a moment, it seems clear enough that one reason we are in this mess is that America lacks a vote of no confidence to discipline presidents who are in deep denial or are simply incompetent. Either or both of these descriptions may apply to the current occupant of the White House.

Because we lack a vote of no confidence, there are only a few available options. We can limit appropriations or attempt to limit the President's war making operations. But a vote of no confidence, which might seem to be a more drastic remedy, is actually more fine tuned and appropriate in these circumstances. Congress might be much more willing to vote Bush out of office than be seen as limiting money for our troops. Similarly, if Congress decides to limit the President's war making abilities, and this is held constitutional, then it sets a precedent that could hamper future chief executives. On the other hand, a vote of no confidence against George W. Bush-- if the Constitution permitted it-- would have no precedental effect with respect to warmaking powers. It would simply be an exercise of a different Congressional power. It would be a potential threat that Congress could offer to discipline future chief executives who got out of line.

Max Weber famously warned that democratic parliaments had a tendency to move toward a version of Caesarism featuring charismatic leaders who exercise increasingly dictatorial powers. But Weber's warning was premised on the notion that one could not easily get rid of the Caesar once he was put in power by general public acclaim. From this perspective, the real problem in the Weimar Constitution, for example, was not the office of the Chancellor, but the powerful office of the Presidency, occupied by Hindenberg.

Suppose that the United States moved to a dual system, with a ceremonial head of state (call him the President of the Republic) with no powers but the power to call for new elections upon motion of Congress, and a head of government, who exercised all of the executive functions of our current Presidency. Under this plan, we could head off many of the Caesarist impulses that Weber identified.

If Prime Minister Bush proved incompetent or unable to face reality, Congress could stage a vote of no confidence. The President of the Republic would not be able to bestow or delegate any powers to the out-of-control prime minister. Although Prime Ministers could exercise emergency power as U.S. Presidents currently do, would-be Caesars could usually be nipped in the bud by threats from Congress. In this scenario, the 2006 election would have sent a much clearer signal to Bush to clean up his act, because otherwise, under this scenario, the newly elected Democratic Congress might well depose him and call for new elections.

Such a change, it goes without saying, would no doubt require a constitutional amendment. And it raises some very interesting possibilities, which do not entirely commend the proposal. For example, suppose we had such a system in 1863. Would Congress have kicked Abraham Lincoln out of office when things were not going well for the Union Army?

Posted 2:09 PM by JB [link]

Comments:

Interesting post. Must ponder...

# posted by

humblelawstudent : 3:11 PM

Since it seems likely to come up on this thread, let me say that it occurs to me that Godwin's Law, in it's purest form, applies equally to any subject. B^)

# posted by

Robert Link : 3:13 PM

@prof Balkin: Would this be a prime minister that is not choosen by direct elections but appointed by the majority of congress? In that case the current situation could not have come to be: in all parliamentary systems with a prime minister, the prime minister is appointed after congressional elections. So if the majority changes, there will be a new prime minister.

In the case of the U.S. it would never happen that a highly impopular prime minister would be confronted with a majority of the other party.

Or would this be a directly chosen prime minister? I don't know any counrty where this is the case.

# posted by

Anne : 4:23 PM

Uhm, rereading that it seems I'm pretending to be a know-it-all. The simpler form of my argument is that appointing a prime minister after a new congress is elected, would also solve the problem of an impopular prime minister. This might work the same way for a president as well: limit his term to the term of the house.

# posted by

Anne : 4:32 PM

The problem isn't the Constitution, but political consensus (or political "will"). Without that, no confidence motions wouldn't work either.

Congress has two basic options today: (a) a 'sense-of-congress" motion challenging any new military escalation, which would be non-binding, but would carry some political weight, or better yet (b) establishing an across the board budgetary freeze, preventing any escalation unless explicitly funded by cuts elsewhere. This would respect separation of powers (Executive: micro military tactical decisions--Legislative: macro budgets and spending) and force the President, if he really believes escalation is a critical national priority, to give up something of lesser importance.

I just don't see much in the short-term Iraq debate that would serve as a powerful argument for more radical constitutional change

# posted by

Anonymous : 5:44 PM

The point about Lincoln is, I think, precisely correct. The problem of making legal rules that restrict a "bad" president while supporting a "good" president is at the very least a daunting problem when it may not be clear to contemporaries whether the person is good or bad. As Sandy has often noted, Lincoln has a monumnet in a prominant place in Washington, D.C.--I will leave it for you to determine what sort of monument the current president might get.

What this suggests is that the caliber of the person holding the office is crucial. Part of the problem is the post McGovern-Frazer era (after 1968) is that cults of personality are essential in order to succeed in the system of invisible primary and actual primary campaigns. This in itself suggests that we have to think about what kinds of people are more likely to succeed in gaining office under any sort of altered system. One thing is clear, however: in a prime minister system, governors could not become the prime minister. And it would raise the stakes and thus probably change the dynamics of the battle to become party leader in Congress.

But maybe we will allow the Governors to become (mostly) honorary "President of the Republc."

# posted by

Anonymous : 6:13 PM

The Queen of England nominates and appoints the members of her cabinet at the direction of the Prime Minister. It is my contention that the majority leader of the house, through her power of the purse, could give the same direction to the President in the process of choosing the President's cabinet, and could do so now, without a Constitutional amendment. There is nothing in the Constitution as such preventing such a move. If this were done it would cause a drastic reorganization of how the government works, but it would solve the problems we now have about the authority of the President and his war making powers. He would become the figurehead, and policy would be determined in the House. The members of his cabinet would act consistent with the House's will, not the President's. The only thing lacking is the will to do it.

GYL

# posted by

Anonymous : 6:54 PM

@GYL: I've tried that trick here once before: arguing that the open areas of the constitution can be filled in by unwritten law. The only obstacle would be political will. But for some reason no one cared for the approach.

# posted by

Anne : 8:12 PM

Many years ago (when we were suffering through the Reagan nonsense), I suggested that the United States would do well to emulate the common European systems and separate the titles of Head of State (i.e. the kings and queens of the various countries) and the chief executive. They could have the figureheads like Reagan go to the funerals and ribbon-cutting ceremonies, and leave the serious business of actually running the country to people of greater mein.

Cheers,

# posted by

Anonymous : 8:37 PM

@Arne: why did they never listened to you?

# posted by

Anne : 8:45 PM

Arne: They could have the figureheads like Reagan go to the funerals and ribbon-cutting ceremonies, and leave the serious business of actually running the country to people of greater mein.

I think your point is that this is what we now have, but I wanted to make it plain for the irony-challenged. Were we ever supposed to believe that the actor was running things and the ex-chief-spook was "out of the loop"? Oi. And now we've got 43, with the PNAC hand so far up his backside you can practically see the fraternity rings pushing against the inside of his hollow skull (savvy readers will note that the Florida son is literate enough to have signed PNAC, whereas 43 kept his accent, which plays better on TV than mere literacy.)

# posted by

Robert Link : 9:00 PM

Anne:

I've tried that trick here once before: arguing that the open areas of the constitution can be filled in by unwritten law. The only obstacle would be political will. But for some reason no one cared for the approach.

I think it safe to say open areas of the Constitution are filled in by unwritten law. The Senate generally defers to the President's executive appointments (but usually rejects one just to show that they can). Impeachment is saved for cases of serious misconduct. The Senate is much clubbier than the House and allows filibusters. Congress declares war if and only if the President requests the declaration. And so forth.

These are matters of custom, not expressly mandated in the Constitution. But if anyone broke these customs there would be great cries of outrage that the Constitution had been violated.

# posted by

Essayist-Laywer : 1:09 AM

@Enlighted Layperson: violated or changed. It would be a stretch to appoint a prime minister, but it can be done within the constitution. Just as a vote of confidence could be instated if only Congress wants it badly enough.

# posted by

Anne : 6:46 AM

I'm a little surprised that no one has mentioned the 1990s. If it were possible to remove a president by less than a supermajority it would have been done already, and likely multiple times. Not for reasons of policy, but whenever it seemed plausible for political advantage.

# posted by

paul : 10:32 AM

Anne:

@Arne: why did they never listened to you?

'Cuz I'm a furriner. ;-)

Cheers,

# posted by

Anonymous : 2:34 PM