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The asymetrically empowered executive


Matt Yglesias makes a point that needs to be made more often: Our government does not treat all presidential powers equally. Domestic policy is dominated by the legislature while foreign policy is run more or less autonomously by the executive. The product is rather weird:

If the President wants to do something like implement a domestic policy proposal he campaigned on — charge polluters for global warming emissions, for example — he faces a lot of hurdles. He needs majority support on a House committee or three. He also needs majority support on a Senate committee or three. Then he needs to get a majority in the full House of Representatives. And then he needs to de facto needs a 60 percent supermajority in the Senate. And then it’s all subject to judicial review.

But if Scooter Libby obstructs justice, the president has an un-reviewable, un-checkable power to offer him a pardon or clemency. If Bill Clinton wants to bomb Serbia, then Serbia gets bombed. If George W Bush wants to hold people in secret prisons and torture them, then tortured they shall be. And if Barack Obama wants to issue a kill order on someone or other, then the order goes out. And if Congress actually wants to remove a president from office, it faces extremely high barriers to doing so.

Whether or not you approve of this sort of executive power in the security domain, it’s a bit of a weird mismatch. You would think that it’s in the field of inflicting violence that we would want the most institutional restraint. Instead, the president faces almost no de facto constraints on his deployment of surveillance, military, and intelligence authority but extremely tight constraint on his ability to implement the main elements of the his domestic policy agenda.

I think this is more evidence that the nuances of how our government works are much more a product of evolution than intelligent design, which isn't something people like to think about very much. The Founders set up a basic structure and then a lot of stuff happened that changed how that structure worked in practice, and now we're here. That's very different than saying that we meant to be here.

I'm pretty sure that if we were building everything from scratch, no one would say, "Let's make elections the sort of thing you can win with a simple majority but make it so you can only pass legislation with a supermajority!" any more than we'd decide to let the president authorize secret prisons on his own time. But now it's happened and people have a status quo bias and attempts to change anything map onto ongoing political disputes and so it all just becomes more noise in our cacophonous national argument.

Photo credit: AP Photo/Charles Dharapak

By Ezra Klein  |  February 4, 2010; 6:17 PM ET
Categories:  Government  
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Try telling this 'evolutionary' theory to a Senator I like a lot - Russ Finegold when he opposes to support Kerry bill of constitutional amendment to overturn recent Supreme Court judgment about campaign finance (basically treating corporation same as people).

This evolutionary problem is always going to be there. You design something today for Internet era and 200 years down the line System would have changed dramatically.

Hence, to treat Constitution as 'words of God' which can never be changed (our Tea Party guys); that is always going to be an issue.

On the other hand, that is why we have Political Movements and Elections - to correct the course in removing the 'weed grown and wrong paths taken'.

Posted by: umesh409 | February 4, 2010 8:07 PM | Report abuse

So let me get this straight. Obama decides he is going to assassinate an American citizen, and Ezra writes a short column, not even commenting on this, but rather on another story that rationalizes it to be the constitution's error, not Obama's. Gee you thought this might get a little more attention. I mean it certainly doesn't measure up to "torture" of actual enemy combatants but at least it's got to be above a childish hit piece like a "A party without grownups"

This is the man who was going to restore America?

Progressives are you out there? Or are you just hiding for the cold reality that your messiah is a worthless murderer?


Posted by: NelsonMuntz | February 4, 2010 11:07 PM | Report abuse

They Commander and Chief has always had broad discretion regarding foreign policy and national security. It's one of the rationales for having a chief executive and not just a house and senate. It's also one of the reasons we don't have a co-presidency, which some of our founding father's supported. those founding fathers that preferred something like electoral monarchy did want a chief executive with as broad a latitude domestically as the president does in foreign policy.
In that framework, the role of the congress would have been primarily to advise and consent. Some wanted the president to pick the members of the house and senate like staff. I don't think that would have been a very good idea.

That being said, I think it is and remains the best system we've come up with. If anything, the presidency should be weaker in regards to foreign policy.

As much as I supported Bush's Social Security Reform, it should have been as hard as it was to get done (so hard, in fact, it failed). Even when we don't like the outcome, I think the checks and balances are worth the price.

Would it have been better if Bush had had a much higher bar to jump in regards to going to Iraq? I tend to think so. I would prefer it if Bush's tax cuts hadn't had a built in expiry date, and if the executive was more powerful domestically they would not have. But . . . I still think we ate better off when the president has a high mountain to climb to accomplish his or her agenda.

Posted by: Kevin_Willis | February 4, 2010 11:48 PM | Report abuse

What citizen did Obama decide hecwas going to assassinate? Did I miss that part of the SOTU?

Posted by: Kevin_Willis | February 4, 2010 11:50 PM | Report abuse

But, Ezra, the Constitution doesn't say the President can do these things. In fact, it pretty specifically says he can't deprive someone of life, liberty or property without due process of law.

The thing is: there is functionally no check on the executive branch, especially with his own party in (nominal) control of Congress. None. The executive can do whatever it damned well pleases, and get away with it, so long as it is willing to insist on its right to do so.

We saw this over and over again under Bush. Torture, in blatant contravention of our legal and treaty obligations. Secret prisons. Unwarranted wiretapping. Picking Jose Padilla up off the street and holding him without trial. Elaborate signing statements effectively giving him the power to write law at will. These aren't things the Presidency is Constitutionally empowered to do-- they're just things the President /chose/ to do, and insisted he was empowered to do so; and in so-doing, he created his own reality.

If Obama wanted to unilaterally suspend enforcement of DADT, do you honestly think he couldn't get away with it? Hell, he's going to have the EPA regulate greenhouse gas emissions as an extension of existing authority.

Since impeachment has been discredited, and legal proceedings on Constitutional issues can take years to resolve, there is functionally nothing that can be done to stop a President from implementing any policy he chooses by executive order.

Posted by: adamiani | February 5, 2010 5:40 AM | Report abuse

Liberals live in a completely different world than conservatives do. To conservatives, this makes perfect sense!

You need an executive that can move with speed and energy to protect America and American interests around the world. It is vital for an individual executive to deal with threats from the days of Washington, through Roosevelt, and on to Obama.

However, the American people signed a contract through their forefathers of basic rights and protections, including a political process that involves representatative governance. It was viewed, I believe correctly, that Americans did not want a tyranny of one president to be able to affect them. They wanted to be governed by their elected representatives whose families lived in their neighborhoods and who were accountable to that area.

Those posts show just how far apart the idealogies of our nation are. To conservatives, this process could not be more logical. To liberals and their ends justify the means ideology; equality, peace, hope, and change no matter what the process is to get there.

Posted by: lancediverson | February 5, 2010 9:20 AM | Report abuse

The point was that there is no check on the president (small "p" indicating any president) as long as he says he is committing whatever atrocity he sees fit, in the name of the false god of National Security. 9-11 effectively gave the presidency absolute military power. Even though Ezra and many other consciencious writers and pundits would quickly call the president out for tyranny, as they did President Bush, inevitably there is a large contingent of people so terrified of the next attack, that they will justify anything the president does to keep them safe. Even if it really doesn't.
It is for this reason that I fear the terrorists actually won. Their goal was not mearly to kill 3000 Americans, but to change America. They have. Because of our national PTSD from 9-11 we have surrendered whatever moral authority we had on September 10th, 2001; in favor of a false sense of safety. And the worst part of all of this, is that we have disguised this loss of principals, as a moral unto itself: Patriotism.

Posted by: elijah24 | February 5, 2010 9:37 AM | Report abuse

You need an executive that can move with speed and energy to protect America and American interests around the world. It is vital for an individual executive to deal with threats from the days of Washington, through Roosevelt, and on to Obama.

lancediverson, this doesn't square with the fact that the founders gave Congress the power to declare war. That's been ignored in our current system, but it was originally reserved for Congress.

Posted by: rpy1 | February 5, 2010 9:58 AM | Report abuse


You are right that Congress has a significant role in international affairs, not the least of which is funding it! In the post 9-11 situation we are now in, Congress did specifically authorize the use of military force (albeit not by my preferred method of a war declaration) by passing a law.

The president has authority in using the military given the necessity of speed in confronting some actions, but after a couple months, the money runs out and the Congress has to authorize continued use of military force. That has been what Congresses have been doing for almost 10 years now.

One more small point on this threat. I read an article yesterday suggesting that radical islamists women are having breast implants of bombs. I fear some people are not willing to accept the severity of this threat.

All that being said, American citizens are afforded all the rights under the Constitution and I think the courts have been stepping us back a bit, appropriately, from our 2002 hight of fear. I just don't believe my forefathers signed ratified our Constitution for the benefit of foreigners living in foreign lands.

Posted by: lancediverson | February 5, 2010 10:32 AM | Report abuse

NelsonMuntz, I'm used to people misusing the term "murderer" when the person in question lacks the necessary intent to kill (manslaughter). I'm not used to seeing people misuse the term "murderer" to describe a person who may commit hypothetical acts...

Posted by: MosBen | February 5, 2010 10:50 AM | Report abuse

Nelson, lets get some things straight:
1. I'm a progressive.
2. I don't care what Rush Limbaugh says about anything else, so I also don't care what he says about the word "Liberal" It isn't an insult. It is the term I prefer for myself.
3. President Barack Obama is not the messiah. Nobody thinks he is. The only people who SAY he is, are snide conservatives who want to make us out to be a cult.
4. Since President Obama was sworn in, just over a year ago, there has been not a single incident over which he had any control, that involved an American body count. That may change, but until it does, calling him a murderer does nothing but make YOU look like a fool.
Were you this hateful of President Clinton, or do you reserve your vitriol for those with dark skin?

Posted by: elijah24 | February 5, 2010 11:17 AM | Report abuse

Ezra, the seemingly unlimited powers the presidency has come to assert in "security" matters apply only if the president is an authoritarian. If, on the other hand, the administration wishes to adhere to the rule of law, conduct civilian trials, use domestic prisons, etc., Congress has has shown that it can stir from its slumber and object strongly. Now there is talk of its using the power of the purse to quash such impudence.

Posted by: henderstock | February 5, 2010 11:43 AM | Report abuse

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