Last month, when President Trump issued his executive order banning refugees and visa holders from seven countries, the acting Attorney General Sally Yates refused to enforce the orders.
In response, conservatives at National Review issued an unsigned editorial reminding the reader that
It is a very simple proposition. Our Constitution vests all executive power — not some of it, all of it — in the president of the United States. Executive-branch officials do not have their own power.
This is true indeed. But it shouldn’t be.
The US constitution places immense power in the hands of a single person. This was done, as Alexander Hamilton put it in Federalist No 70 to maximize ”decision, activity, secrecy, and dispatch” in the executive branch. Confronted with opposition from the Anti-Federalists who feared too much power in the hands of a simgle ambitious politicians, Hamilton attempted to illustrate that they had nothing to fear.
The “Founding Fathers” Were Wrong
Unfortunately, the majority of the politicians at the Convention agreed with Hamilton, exhibiting yet again that the much vaunted so-called “founding fathers” were not nearly as insightful as is often pretended. Just as James Madison was wrong about a large republic preventing abuses of government power, Hamilton was wrong that the executive will tend toward political weakness. Indeed, the “framers” in general exhibited a remarkable lack of insight in their paranoia about how the legislative branch would dominate all other institutions in the government and run roughshod over the rights of the citizenry. In real life, the legislature has in many respects proven to be the weakest branch of the federal government, and is certainly weaker than the presidency in terms of prestige, public trust, media access, and in Congress’s lack of ability to rule by decree as the president does.
Thus, knowing what we now know about the US presidency today, anything that increases “activity” and “secrecy,” as Hamilton wanted, should immediately send up a series of red flags.
In his own comments at the Constitutional Convention, George Mason said as much when he observed :
The chief advantages which have been urged in favour of unity in the executive are the secrecy, the dispatch, the vigour and energy which the government will derive from it, especially in times of war...Yet perhaps a little reflection may include us to doubt whether these advantages are not greater in theory than in practice...If strong and extensive powers are vested in the executive, and that executive consists only of one person, the government will of course degenerate (for I will call if degeneracy) into a monarchy — a government to contrary to the genius of the people that they will reject even the appearance of it.
On the first point of the executive power’s “degeneracy,” Mason has been proven right. After all who can deny that the presidents of today enjoy powers that the monarchs of old could only dream of? Modern presidents can order a global nuclear attack without any declaration of war. They can launch the world’s more technologically-advanced military at will. They command a vast bureaucratic and law-enforcement apparatus that can destroy the lives of American citizens whether through the DEA, EPA, or countless other federal agencies that wield vast power. Moreover, they enjoy all the same ceremonial trappings of the monarchs of old.
Just last month, the taxpayers were forced to pay more than 100 million dollars to throw an immense party for the new president so he could be honored with fanfare and solemn ceremonies that would have made the Caesars envious.
As the head of this huge unitary executive, Presidents can command a huge national audience and face no opposition from any peer. They hand out awards to their friends, enjoy sumptuous food at state dinners, travel in luxury on Air Force One — at great cost to the taxpayer — and shut down entire highways and city blocks wherever they choose to go.
The supporters of the presidential status quo even invent exalted titles for them, such as references to the president as “our” commander-in-chief as if he were the supreme commander of the United States and not — as was correctly understood in the early United States — merely the “commander of the armed forces on the battlefield.” Except for those actively engaged in military service, the President is not — legally speaking — the “commander” of anything.
This latter point reminds us that — on paper — the president appears to be heavily limited by Congress. In practice, however, the political and media advantages of being a celebrity executive allow the president to overwhelm many of these de jure limitations.
Our Beloved National Figure
On his final point about public resistance to the presidency, George Mason has been most unfortunately wrong. It has not at all been true that the “the people” rejected the rise of an extremely powerful and monarchic presidency. Indeed, we see something very near its opposite.
Today, the US president has become for many an object of veneration. He is a person who is supposed to solve the nations problems including everything from geopolitical matters right on down to managing what sort of fishing tackle people can use. He is a figure to which countless Americans have an emotional attachment, to “feel their pain” and to assuage their fears.
But, just as federal judges must be seen and treated as what they really are — nothing more than government lawyers with friends in high places — so the presidents ought to be reduced to the position of bland administrator.
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The ideal solution to this situation, of course, would be to drastically reduce the presidency to the point of being a weak and temporary position — perhaps as a temporary commander in times of war — subject to the approval the member states of a voluntary confederation.
A Modest Proposal
However, in the spirit of compromise — on the way to total abolition, of course — we can take the profoundly moderate position of simply breaking up the executive branch among several administrators.
After all, this is commonplace in state governments in the United States where executive powers are shared by several elected executive officers. All states have governors who wield legislative veto power and command the state’s military forces. But other executive powers are held in the hands of treasurers, secretaries of state, and attorneys general who themselves who have their own legislative and regulatory prerogatives.
In 2016, for example, 12 states held elections for governors, but also on the ballot were ten attorneys general, nine treasurers, and eight secretaries of state. Numerous states also directly elect a variety of lesser executive offices including state auditors, agriculture commissioners, and insurance commissioners.
Historically, state governments, being more democratic and closer to the voters have tended to be suspicious of executive power and have limited that power both by decentralizing the executive branch and by holding elections more frequently.
Today, for instance, only two states still have a two-year term for governor (New Hampshire and Vermont). Over the past century, however, 29 states moved from a 2-year term to a 4-year term. As late as the 1950s and 1960s, no fewer than 19 states still forced governors to run for re-election every two years.
And yet, these states manage to not descend into chaos, as Hamilton and his Federalists would have had us believe is the inevitable result of a decentralized executive.
The benefits of, as Hamilton put it “vesting the power in two or more magistrates of equal dignity and authority” would be immediately apparent. It would damage the mystical superstitions that encourage belief in the president as the “embodiment” of the electorate or as representing “the will of the people.” Few things can undermine the mystique of the presidency better than creating multiple rivals competing incessantly for national attention and national votes.
Were this issue to gain any traction, of course, we would hear incessantly from the modern Hamiltonians, themselves lamenting the grave danger to “unity” and “strength” that a diluted presidency would bring. In the eighteenth century, those who held this position bemoaned that an insufficiently “energetic” national government would allow too many freedoms to ordinary people and that “licentiousness” would destroy the nation. On this, Patrick Henry was doubtful, and in 1788, while debating the ratification of the new constitution, he concluded,
But we are told that we need not fear; because those in power, being our Representatives, will not abuse the power we put in their hands: I am not well versed in history, but I will submit to your recollection, whether liberty has been destroyed most often by the licentiousness of the people, or by the tyranny of rulers? I imagine, sir, you will find the balance on the side of tyranny...
