The problem isn’t the President, it’s the Presidency

Americans are very proud their democratic government. Civics textbooks espouse the virtues of elections and the separation of powers divided between the executive, judicial and legislative branches each with the power to check and balance the power of the other two branches.

Yet contrary to the myth of equal powers, the reality is the executive – in the person of a single officer, the President – is the dominant branch of our national government with the other two serving as junior partners. The election of the President is based upon a Rube Goldberg system most Americans would have difficulty explaining called the Electoral College that gives disproportionate power to small states. The President is held accountable to the American people only once – during the campaign for re-election at the conclusion of the President’s first term. A President may only be impeached and removed for "treason, bribery, or other high crimes and misdemeanors" – an absurdly high standard for a government that is supposed to be democratic. The President may as well be granted life tenure.

And the President has a wide range of powers unequaled in the other two branches of government. Whether or not these powers are used wisely and whether or not they are used with the support of the American people in our supposedly democratic system is beside the point. Less than a third of the American people approve of the job George Bush is doing as President yet he continues making decisions that affect all Americans and the world and there is nothing the American people can do about it. President Bush’s candidate (Senator John McCain) and President Bush’s party were clearly trounced in the national election in early November yet Bush remains in power two months after this rejection and there is nothing the American people can do about it.

George Bush is certainly a problem but he is not the problem. The problem is the office of the President and how it was structured in the Constitution.

Garret Epps has some ideas on how to reform the U.S. Presidency:

… while George W. Bush may have been a particularly bad driver, the presidency itself is, and always has been, an unreliable vehicle—with a cranky starter, an engine too big for the chassis, erratic steering, and virtually no brakes. It needs an overhaul, a comprehensive redo of Article II.

Constitutional change is a daunting prospect. But consider how often we have already changed the presidency; it is the Constitution’s most-amended feature. And this is the moment to think of reform—the public’s attention is focused on the Bush disaster, and ordinary people might be willing to look at the flaws in the office that allowed Bush to do what he did.

So how should the presidency be changed?

First, voters should elect presidents directly. And once the vote is counted, the president-elect (and the new Congress) should take office within a week. Americans accustomed to the current system will object that this would not allow enough time to assemble a Cabinet—but in England and France, the new chief executive considers ministerial nominations before the election. A shorter interregnum would force the creation of something like the British shadow cabinet, in which a candidate makes public the names of his key advisers. That would give voters important information, and provide the president with a running start.

Next, Article II should include a specific and limited set of presidential powers. The “unitary executive” theorists should no longer be allowed to spin a quasi-dictatorship out of the bare phrase executive power; like the responsibilities of Congress, those of the president should be clearly enumerated.

It should be made clear, for example, that the president’s powers as commander in chief do not crowd out the power of Congress to start—and stop—armed conflict. Likewise, the duty to “take care that the laws be faithfully executed” needs to be clarified: it is not the power to decide which laws the president wants to follow, or to rewrite new statutes in “signing statements” after Congress has passed them; it is a duty to uphold the Constitution, valid treaties, and congressional statutes (which together, according to the Constitution, form “the supreme law of the land”).

After a transformative midterm election like that of 1994 or 2006, the nation should require a compromise between the rejected president and the new Congress. A president whose party has lost some minimum number of seats in Congress should be forced to form the equivalent of a national-unity government. This could be done by requiring the president to present a new Cabinet that includes members of both parties, which the new Congress would approve or disapprove as a whole—no drawn-out confirmation hearings on each nominee. If the president were unwilling to assemble such a government or unable to get congressional approval after, say, three tries, he would have to resign.

This would not give Congress control of the executive branch. A resigning president would be replaced by the vice president, who would not be subject to the new-Cabinet requirement. This new president might succeed politically where the previous one had failed (imagine Al Gore becoming president in 1995, and running in 1996—and perhaps in 2000—as an incumbent). And that possibility would discourage the new congressional majority from simply rejecting the compromise Cabinet. Resignation might be worse for them than approval.

As a final reform, we should reconsider the entire Hamiltonian concept of the “unitary executive.” When George Washington became president, he left a large organization (the Mount Vernon plantation) to head a smaller one (the federal government). But today, the executive branch is a behemoth, with control over law enforcement, the military, economic policy, education, the environment, and most other aspects of national life. That behemoth is responsible to one person, and that one person, as we have seen, is only loosely accountable to the electorate.

In other areas, the Framers solved this problem neatly: they divided power in order to protect against its abuse. Congress was split into the House and the Senate to ensure that the legislative process would not be so efficient as to absorb powers properly belonging to the other branches. The problem now is not an overweening Congress but an aggrandized executive branch; still, the remedy is the same. We should divide the executive branch between two elected officials—a president, and an attorney general who would be voted in during midterm elections.

As we are learning from the ongoing scandal of the torture memos, one of the drawbacks of a single executive is that Justice Department lawyers may consider it their job to twist the law to suit the White House. But the president is not their client; the United States is. Justice Department lawyers appointed by an elected attorney general would have no motive to distort law and logic to empower the president, while the White House counsel’s office, which does represent the president, would have every incentive to monitor the Justice Department to ensure that it did not tilt too strongly against the executive branch. The watchmen would watch each other.

This arrangement would hardly be unprecedented: most state governments elect an attorney general. The new Article II could make clear that the president has the responsibility for setting overall legal policy, just as governors do today.

None of these changes would erode the “separation of powers.” That happens only when a change gives one branch’s prerogatives to another branch. These changes refer in each instance back to the people, who are the proper source of all power. The changes would still leave plenty of room for “energy in the executive” but would afford far less opportunity for high-handedness, secrecy, and simple rigidity. They would allow presidential firmness, but not at the expense of democratic self-governance.

It’s not surprising that the Framers did not understand the perils of the office they designed. They were working in the dark, and they got a lot of things right. But we should not let our admiration for the Framers deter us from fixing their mistakes.

Our government is badly out of balance. There is a difference between executive energy and autocratic license; between leadership and authoritarianism; between the democratic firmness of a Lincoln and the authoritarian rigidity of a Bush. The challenge we face today is to find some advantage in Bush’s sorry legacy. Reform of the executive branch would be a good place to start.

This is from the current issue of the Atlantic. I strongly recommend you read Epps' piece in its entirety.