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When Congress and the President Face Off

Image has not been found. URL: /wp-content/uploads/2008/09/bush1.jpgPresident George W. Bush (WDCpix)

With “trust in the people,” declared President George W. Bush in closing his final State of the Union Address, “let us go forth to do their business.” It is one of the sad truisms of American politics that politicians find it far easier to profess their trust in us than the other way around. The last thing we expect from the national government — and especially from the current divided government — is that it will go forth to do “our business,” whatever that may be, in some blissful state of shared purpose.

Congress_4535.jpg
Congress_4535.jpg

Illustration by: Matt Mahurin

Impasse, not progress, has prevailed in Washington since the Democrats recaptured control of Congress in the 2006 elections. Americans seem little happier with the new leaseholders on Capitol Hill than with the old Republican majority they displaced. Nor did the loss of Congress chasten the ever self-confident president. Far from repenting his devotion to being a divider rather a uniter, the president has largely clung to the positions his administration had previously laid down. As a result, the perception that partisan gridlock remains the name of the Washington game is intact.

True, Democrats have found it easy enough to investigate — though even here the administration has held the line on expansive claims of executive privilege and the sanctity of its internal deliberations. But if Democrats want to legislate, their slim majorities cannot withstand the vetoes that Bush has finally had occasion to use. Then, too, there is the special bottleneck in the Senate known as the cloture rule. No one has to mount a real filibuster to tie up the Senate any more, as Jimmy Stewart heroically did in “Mr. Smith Goes to Washington.” If the minority has the 40 votes needed to block the close of debate, a virtual filibuster will do. No cots in the cloakroom for these hardy orators.

Can this possibly be the way our constitutional system was meant to work? It’s one thing to praise the principle of checks and balances as an institutional antidote to the danger that the concentration of power in the same hands was the very definition of tyranny. But did the framers of the Constitution really mean to disperse power so thoroughly as to make impasse and deadlock the normal state of government?

Should not majorities who, against the odds, manage to recapture control of Congress be allowed to govern? Why should a politically discredited president, stubbornly secure in his faith in himself, and his heavenly father, get to play out the clock one last year?

Thoughts like these drive many scholars to distraction. The conventional academic wisdom has long been that our form of ostensibly democratic government is vastly inferior to any effective parliamentary system. There, majorities who win elections actually get to rule, unfettered by the “chokepoints” of bicameral legislatures and executive vetoes. Here victory in an election guarantees nothing. Pundits will haggle over how much of a mandate a victorious president or party can claim. But mandate, schmandate. Once a new administration or congressional majority takes power, all the institutional hurdles to legislation remain.

Perhaps the framers of the U.S. Constitution would have adopted the parliamentary model had it been there to emulate. But that model was not available in 1787 in the full-blown form it would take in the next century. In Britain, the ministers who ran the king’s government had to command a majority of the House of Commons to stay in power. But the king still had a crucial say in deciding who would serve in his name. Elections in the minuscule British electorate were distinctly local affairs, and rarely affected the king’s choice of ministers or the balance of power in Parliament.

So in forming a more perfect union, the American framers had to innovate more than we sometimes realize, and the presidency proved their greatest challenge and innovation of all. In their time, ideas of executive power remained either monarchical or ministerial. In 1776, Americans had rejected both — turning the governors of the individual states into mere agents of a dominant legislature. Only two of the 11 states that adopted new constitutions with independence allowed the people to elect their governors. The others required them to be chosen by the legislatures, one year at a time.

Thus, when the framers assembled in 1787, the question of how to elect or appoint a president became, as James Madison put it, the object of “tedious and reiterated discussions.” Simply put, there was no way to imagine what kind of political influence the president would wield. That is why the framers were still puzzling over the presidency a bare 10 days before they adjourned; and also why they saddled posterity with the zany idea of the Electoral College.

Far from expecting the presidency to be the focal point of political competition and influence, they probably expected most presidents to be more like Franklin Pierce or Chester Arthur than Andrew Jackson or either Roosevelt. Madison’s own expectation was that the House of Representatives would be the dominant institution. As the one branch of government that the people would actually elect, it would sweep all before it because it alone would speak for public opinion.

Soon enough, of course, Madison learned he had been wrong – and not only because a commanding figure like George Washington, with a calculating advisor like Alexander Hamilton, proved that the presidency was a far more potent office than anyone in 1787 (other than Hamilton) could have conjured.

Whether or not one buys the currently fashionable theory of “the unitary executive,” the concentrated decision-making authority of the president can always be wielded far more efficiently and quickly than the balky procedures of Congress, hamstrung by its own procedural rules and the institutional jealousy of its two houses. Those conditions often prevent presidents from getting their way. Presidents propose, the saying goes, and Congress disposes — but in all but the most exceptional circumstances, they also deter Congress from superimposing its will on even the most discredited presidents.

This, too, drives academics, bloggers and just plain concerned citizens to distraction, but that’s your Constitution at work.

Jack N. Rakove, a professor of history and political science at Stanford University, won a Pulitzer Prize for his book, [“Original Meanings: Politics and Ideas in the Making of the Constitution.”](http://"Original Meanings: Politics and Ideas in the Making of the Constitution.")

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