The problem of US presidentialism.

datePosted on 16:34, February 27th, 2017 by Pablo

Citizens of mature democracies frequently complain about politics and politicians, whether it is the influence of money in politics, the rise of corporate lobbyists, or outright corruption, but they often simultaneously retain a strong faith in the actual political institutions that govern over them. The citizens of the United States are no exception in this regard. More often than not they hold a genuine belief that their system of government itself, framed as it is by a constitution written over two hundred years ago, is fundamentally good.

What exactly is it that our American friends believe to be good, even superior, about their system of government? It is founded on a division of powers that is supposed to guard against radical or rapid-fire policy-making, an in-built conservatism that is compounded by federalism. Presidential power is checked by Congress, and presidentialism, it is argued, is further superior to parliamentarianism because electoral terms are fixed, meaning that they can’t be messed about with for political purposes. Supporters of the US system will even work to defend the politically appointed nature of the public administration in terms of democratic accountability, cutting across the power of the career bureaucrat who runs rings around members of parliament in an effort to expand his or her own power base.

The Trump presidency has defied those conventions to the point that people are talking about an incremental or “quiet coup” in the US. The concern is that his circumvention of traditional White House practice is designed to consolidate power in the Oval Office at the expense of the legislature and judiciary. But there is more to it than rule by decree: the problem with President Trump’s behavior rests partially with him and partially with the system that allowed him access to power.

Beyond the pernicious influence of corporate money and the venal nature of the Beltway elite, the first two weeks of Donald Trump’s presidency shows that something is rotten about the state of the US political system. Institutions are only as good as the customs, practices, and arguably even the wider political culture in which they are embedded. The rule of law, it turns out, is not as robust as the myth would have it, at least not when it comes to placing restraints of Executive Authority. What many have assumed were legal requirements surrounding the behaviour of a US president are in fact only long-term practices, traditions, and even “understandings” that President Trump has wasted no time ignoring. Add the fact that every other President in modern history was disciplined into exercising political self-limiting behaviour through experience with public service of some kind, which Trump does not have as a personal or professional attribute, and then it is fair to say that the system of government itself is in a state of decay.

The premise upon which the US presidential edifice once stood was the notion of executive self-limitation (or self-restraint). A core tenant of democracy, self-limitation in the presidency means that the president will not stretch or ignore customary norms to advance his own agenda, nor will he put his interests above those of the nation. The assumption is that once president, individuals will subordinate their own interests to those of the nation even if it means refraining from taking advantage of the office for personal or abjectly partisan gain. Even if historical practice has shown that presidents push the margins of this tradition, none have shown such a blatant disregard for it as has Mr. Trump.

This points to a fundamental weakness of the US presidential system. Rather than being constrained by strong institutional boundaries and legally defined limits to what can and cannot be done, the US presidency assumes goodwill and an interest in consensus and compromise in pursuit of collective good on the part of those who occupy the Oval Office. In past practice, that has largely been the case. Those who have taken the oath of presidential office have voluntarily fitted into the strait jacket of institutional weight and national history and have generally conducted themselves within the customary limits of Executive Authority.

The customary limits of US presidential authority rest on horizontal and vertical accountability. The former involves executive accountability to the other branches of government. The latter involves presidential accountability to the electorate, the media and the federal bureaucracy under executive control. The assumption is that presidents will acknowledge their responsibilities on both dimensions and act accordingly when it comes to issues of transparency and oversight.

That is not the case now. President Trump has set out to redefine limits of presidential authority in order to implement his campaign platform unchecked by either form of accountability. He has ignored Congress, challenged (and vilified) the courts and federal agencies when signing executive orders or pushing his version of events and has selectively turned on the media with the full weight of his office (since, among other media-related issues, providing such things as regular and open briefings to the entire White House press corps is a courtesy, not a requirement). He claims that he speaks directly and answers to “the people” alone and that his actions in office are justified by his electoral mandate. This represents an example of what Spanish political sociologist Juan Linz called the “authoritarian temptation” of presidential systems: those in presidential office can, if they wish, use that office to impose by executive fiat unilateral approaches to policy-making while ignoring the conventional trappings of presidential accountability (before dispensing with them altogether). As the first amongst equals, the president can ignore or by-pass Congress when expedient and can seek out judges that will uphold his policy vision under legal challenge (and look to replace replace those that do not). And since it is the president who appoints senior staff throughout the US federal bureaucracy, it is the president’s unvarnished wishes and desires that are channeled first when it comes to translating policy into practice.

In other words, presidential systems facilitate the rise of what is known as “electoral authoritarianism” whereby a freely elected democratic president uses the privileges of office (such as Executive Orders and Decrees) to consolidate power at the expense of the other two branches in order to then unilaterally impose undemocratic policies on society. From Peron to Chavez to Dutarte to Mugabe and Putin, the historical record is replete with cases of presidential systems that started out as freely elected but inevitably turned authoritarian while maintaining a façade of electoral legitimacy and some measure of populist appeal.

This is an inherent flaw of presidential systems as much if not more than that of any one individual.

In the case of president Trump there is a twist, and its name is Steve Bannon, the president’s closest advisor. The former publisher of the white supremacist, anti-Semitic conspiracy web site Breitbart, who was a link between Russian operatives and the Trump camp during the campaign, has been appointed White House chief strategist and made a Principal of the National Security Council at the expense of the Chairman of the Joint Chiefs of Staff and Director of National Intelligence (both of whom were demoted). Having previously spoken of “smashing the system” and author of the phrase “draining the swamp,” Bannon sees Trump as an empty vessel into which he can pour his ideological agenda. It was Bannon and another former Breitbart editor, Steve Miller, who wrote both the dark Inaugural Address (“carnage in America”) and the Executive Order banning refugees and citizens of seven Muslim-majority states. It is Bannon who shapes the Trump worldview and who sets the policy agenda in the West Wing.

Bannon sees the world as immersed in an apocalyptic struggle between traditional Western values and usurpers from Asia and the Middle East. He sees liberal democracies as weak and ineffectual, trying to be all things to all people and masters of none. His vision foresees a final confrontation between the dark forces aligned against the West and the last bastions standing to defend it: the US and Russia. In fact, he has predicted and advocated for US wars with China and Islam on the premise that the US has arrived at its “4th Turning:” a period, like the Revolutionary, Civil and Second World Wars, where the US remakes itself via existential conflict into a new and revitalized state after a period of economic, cultural, social and political decline. Since Bannon believes that the US retains a measure of strategic superiority over both of these perceived rivals at this point in time but is at risk of losing that advantage, his timeline for war is short and his preferred approach is to initiate conflict while the US strategic advantage still holds.

Bannon understands the weakness of presidential systems that rely on self-limiting voluntarism for commonweal governance. He knows that presidential systems allow for much more executive initiative and discretion when pursing policy, including the use of force. He sees a window of opportunity in the form of a Republican controlled Congress with a self-serving leadership and a disorganized Democratic opposition.

In view of these institutional conditions, rather than honor tradition he has moved to exploit it. Trump serves as the perfect vehicle for his shadow agenda and the Republican Party plays along because it feels that it can get something in exchange (such as presidential support for its legislative agenda, including repeal of abortion rights and the Affordable Care Act as well as pro-business tax reform).

Bannon would not have as much influence if he was not operating in a presidential democracy in which custom and tradition rather than legally defined codes of conduct were the norm. In fact, without legally defined institutional constraints, norms are not enforceable when incumbents decline to engage in self-limiting behavior.

In the US presidential system the only real check on executive authority is the court system. Although Congress can pass laws that compel or otherwise restrict aspects of presidential behavior (like the current bill requiring Steve Bannon’s appointment to the NSC be subject to Congressional approval), the highly partisan nature of the US federal legislature, including on the subject of presidential impeachment, makes passage of such legislation difficult and subject to legal challenge and/or reversal. In the unlikely event that Congress orders the president to adopt a specific norm or practice, the matter will inevitably wind up in court.

So the court system has the last say on how US presidents should behave, but that is on a case-by-case basis. Moreover, in truth US courts are more arenas of contestation that determinants of adjudication. The real check on executive behavior comes in the form of litigation (and the threat thereof), but in order to litigate the limits of presidential power, legal challenges must be phenomenally well funded and argued. Even state governments may find themselves unable to sustain legal challenges to executive action in the face of the federal authorities’ determination to defend presidential prerogatives. Public interest groups, law societies, religious,ethnic, business and labour organisations, NGOs and CSOs have even less resources with which to fight the Executive Branch, so the path of legal challenge is institutionally skewed in the president’s favour.

All of which is to say that Donald Trump’s behavior as president is as much due to the nature of the political system into which he is inserted as much as it is due to his sociopathic personality.

This does not mean that parliamentarianism is always the preferred democratic system. Many variables come into play when determining which system of representation is best suited for a given polity. But what is clear is that custom and practice are no substitute for the rule of law when it comes to government institutions as well as citizens, and in that regard, it is the system not the people who have failed when it comes to preventing the excesses now dominating the White House.

This essay began as an exchange of notes with Kate Nicholls, who teaches at AUT.

11 Responses to “The problem of US presidentialism.”

  1. Draco T Bastard on February 27th, 2017 at 18:29

    It wasn’t that long ago that Labour and many others were shocked when our present government went and did something completely against tradition. The action was completely immoral as well but all that National, through their spokesman Key, said was that it wasn’t illegal.

    We seem to be seeing a rise in this sort of unethical behaviour from right-wing governments.

  2. Pablo on February 27th, 2017 at 18:40

    Yes, although the problem of presidentiaism, or at least the abuse of a system based more on voluntary compliance than adherence to law, is less a partisan or ideological issue and more of an ethical one.

  3. Markus on February 28th, 2017 at 06:21

    Rightly or wrongly, it was my impression that in its form and intent, the structure of the US presidency’s relationship with the other branches of government was always designed to be constrained. That the founders clearly recognized the dangers of a presidential system to transition to something else and sought to check that process. At the same time they also recognized the historical tendency of full democracies to spin themselves to pieces and hence the various constraints on popular rule.

    Having said which, it is hardly as though Trump is the first President to lead to concerns due to the rejection of limiting traditions. If no one else surely FDR is a classic example. He got himself elected to 4 terms of office, tried to reconfigure the Supreme Court in order to reverse decisions that interfered with his agenda, secretly intervened in a foreign war that he did not have popular support for, and established a network of concentration camps across the country.

    At least in the US context I suspect that the biggest factor leading to the potential that causes so much alarm now that Trump is in office is the immense, and largely unchecked, growth in the resources under the direct command of the office of the President since WW1. As such the Presidency has been out of its cage for decades with Congress living on borrowed time as anything other than a rubber stamp for Presidential fiscal demands. So, trump is less the problem and more the extreme example that draws attention to the problem.

  4. Pablo on February 28th, 2017 at 07:03

    I disagree about FDR. There were no term limits in his day and he had to deal with two national crises–the Depression and WW2. What extraordinary actions that he took he took because those were extraordinary times. There is no such equivalent today. When I wrote about president’s pushing the margins of their authority I was thinking more Reagan and Bush 43.

    I do agree that the powers of the presidency have increased markedly over the last few decades. That is as much due to Congress turning into a partisan cage fight as much as presidents pushing the limits of their authority. Whatever the case, you make my point: it is the system that is the root cause of today’s debacle.

  5. Geoff Fischer on February 28th, 2017 at 11:00

    There is a natural tendency for successful democratic nation states to acquire empires (as in the case of Rome, England, Holland, France, Germany and now the United States). Then, as the empire peaks and begins to decline there is a common, though by no means universal, tendency for generals and autocrats, people from outside the democratic order, to assume power more or less with the consent of the populace of the imperial heartland.
    A condition for autocracy is that it must at least appear to offer a viable way out of the tribulations of an empire which has been hollowed out at the heart, and this, I suggest, is the case in the US.
    It is no accident that the US has a Presidential system. It was developed to meet the needs of a state which had imperial ambitions almost from its foundation and the imperial destiny of the United States of America is now manifest in the person of Donald Trump. Having said that, Pablo’s analysis is revealing and full of valuable insights – even if I have not shared his optimism about the ability of the US establishment to either block Trump’s rise to power, or to restrain him in the exercise of that power.

  6. Barbara Matthews on March 1st, 2017 at 10:12

    The scariest aspect are the people around Trump and him being described as an intellectually empty vessel. I read recently that giving equal time and space to the unqualified, inexpert speaker/writer (to maintain some kind of equitable balance) as is given to the expert, informed thinker/writer is a current danger. We see this clearly in NZ where, as a country with an anti intellectual ethos , this is increasingly the case. Those with the loudest voices and vested interests prevail.
    A really interesting and informative post. Big picture thinking and info appreciated.

  7. Geoff Fischer on March 2nd, 2017 at 05:55

    The “vox pop” method can be used quite effectively to perpetrate ideas which are either misguided or palpably false, epitomized in the tendency of the mass media to have “columnists” or “hosts” who express opinions on everything from politics to science, law or medicine – all fields in which they have no actual expertise, but in which they are able to influence others through their aura of assurance and false authority. This phenomenon feeds on itself as the ubiquity of “fake news” and misinformed opinions fosters cynical distrust of reasoned argument. People no longer trust reason, because they see so little of it in public discourse, and therefore assume that it can have little value. That is human nature, and there is a certain logic to it.
    So uninformed opinions are a problem not just for Donald Trump and the White House, but also for his liberal critics in the mass media and ultimately for the whole of western society.
    On the other point, I am not sure that it is helpful to describe Trump as an intellectually empty vessel, any more than it helps to describe contemporary western civilization as intellectually bankrupt. It may be more helpful to think about how and why a person like Donald Trump can successfully appeal to nearly half the voting population of a mature democracy.

  8. peterlepaysan on March 6th, 2017 at 18:33

    A heavily gerrymandered and collegiate voting system certainly assisted Trump, and the republicans.
    That needs to be sorted.

    Actually a MMP system would be very effective int USA.

    Somehow I do not see the corporates allowing that to happen.

    The disillusioned Sanders and Trump supporters could find that MMP suits them.

    I cannot see it happening any time soon. The corporates would not allow it

  9. Pablo on March 6th, 2017 at 19:27

    I have recently read that there are grassroots movements in some states to roll back gerrymandering and institute proportional representation (California and Maine are two examples). Apparently there are some think tanks also at work on electoral alternatives. May not happen soon, but perhaps once the Trump train wreck is complete, serious attention will be directed at reforming the system as a whole.

  10. Steve Todd on March 8th, 2017 at 20:43

    Goodness me, Pablo, you appear to be quite unaware of fairvote.org, the main electoral reform organisation in the US. They advocate Ranked-Choice Voting (STV in multimember districts) and Instant-runoff voting (IRV – single-seat STV). They maintain that MMP would not suit the US, because Americans are only interested in voting for actual candidates, not parties (on the basis that they reject group thought).

    In my view, given that the political parties in the US are autonomous in each state, MMP would in fact, contrary to what peterlepaysan (above) suggests, be the much less effective reform option. I also believe Americans would not be interested in voting for parties on a national basis, that being the only way MMP could work, unless the US was divided into arbitrary regions (also likely to be unacceptable).

    I was going to put up this posting several days ago, but decided it was way too much, and not quite in line with your blog post. Now that PR has been mentioned in the Comments section, I have decided to go for it. Please forgive the length, but it would have been pointless to put up my suggestions without giving some brief explanations as to my thinking.

    There is absolutely no doubt whatsoever that the US Constitution (along with its 27 amendments) is a brilliant document (although not quite as good as the (1999) Swiss Constitution – IMHV). But, it is now dated. Some suggested ways to improve upon it can be found here: http://frustratedprogressive.blogspot.co.nz/2014/06/restoring-and-modernizing-democracy-in.html?view=magazine#!/2014/06/restoring-and-modernizing-democracy-in.html [29 June 2014].

    Also, given the way the United States came into being – 13 to 50 independent states, that agreed to be “united” – there is also no doubt that a parliamentary system of government would have been completely unsuitable – again, in my view.

    However, the simple fact of the matter is, the United States is now essentially ungovernable. By that I mean, being a democracy (of sorts), it is too large (in terms of population) and diverse for just one person to have sole “presidential” power, and the FPP electoral system used to elect its office-holders is well and truly no longer fit for purpose.

    What to do? Well, that which I set out below are just three briefly described suggestions; details would come later. I completely accept the fact that it will never happen – amending the Constitution is too difficult, and those people benefiting from the current situation are too entrenched ever to allow it to happen – but here goes—

    First and foremost, the office of President should be replaced with a three-person Presidency. A forerunner for this is the triumvirates of ancient Rome. [This idea was originally put forward by Lindsay Perigo in “A Constitution for New Freeland”, Free Radical, April 2000.]

    The Presidency would be elected by the People, by way of the Single Transferable Vote (STV) electoral system. The candidate attaining the lowest ‘keep value’ [as per the New Zealand Method of Counting Single Transferable Votes] would be declared “President”. The other two elected candidates would each be declared “Co-President” (and would have equal power with the president within the Presidency). Under this system, it is almost certain that the three elected candidates would include at least one Democrat and one Republican, and would very likely include at least one woman.

    While the president would still be the president, as now, in most respects, the value of this proposal comes with the passage of bills into law. Drawing upon Lindsay Perigo again, if one member of the Presidency fails to sign a bill sent to it, three-fifths of Congress, sitting in joint session, can override that single veto and enact the bill. Two members fail to sign, two-thirds of Congress would be needed to override the vetoes. All three members veto a bill, three-quarters of Congress could override the Presidency.

    As an aside, within the Presidency, Executive Orders would need to be signed by the president and at least one co-president.

    Unfortunately, the presidential primary process would still be necessary (with at least the Democrats and the Republicans each electing two candidates to compete for the three vacancies). The office of Vice President would be abolished.

    But, the primary process, too, needs to be reformed. I advocate the American Plan (see http://frustratedprogressive.blogspot.co.nz/2011/09/presidential-primary-reform-as-was-last.html?view=magazine#!/2011/09/presidential-primary-reform-as-was-last.html), adjusted to take account of my proposal.

    In addition, the House of Representatives should, initially, be increased to the square root of the 2020 Apportionment population, which, assuming it to be 325,000,000, would be 688 – 330,000,000; 691 – effective from the 2022 mid-term elections. (Realistically, of course, the changes I propose would more likely take effect from 2032, or 2042.) It should then be increased following each decennial census thereafter (by a process to be determined by Congress on each occasion). Representatives would be elected by multi-seat STV – single-seat STV in the case of Wyoming (for the foreseeable future).

    The Senate should also be doubled in size, to 200 (fixed), with equality of the states, in terms of the number of senators each state should have, being abandoned. In this regard, following the 2010 census, the Apportionment population of the United States was determined to be 309,183,463. The Apportionment population of the 20 least populous states (each having a population of fewer than 3 million), totalled 31,968,638. Those states have 40 senators representing them, one senator for every 799,216 people. The remaining 30 states (with 60 senators) had an Apportionment population of 277,214,825; one senator for every 4,620,247 people. This discrepancy in the representation of the states is no longer justifiable, or, I would argue, acceptable.

    Under my proposal, each state would be guaranteed 3 senators. The number of senators of each of the more populous states would be determined using the Penrose method. Details of this brilliant method, with regard to the European Parliament, can be found here:
    http://frustratedprogressive.blogspot.co.nz/2011/08/post-of-2011-08-31democratizing-united.html?view=magazine#!/2011/08/post-of-2011-08-31democratizing-united.html. It is also described at Wikipedia.

    I have done the figures. Without going into detail, California would have a weighting of 0.45704…, giving it an effective population of 17,066,730 (down from 37,341,989). Wyoming would have a weighting of 3.70478…, giving it an effective population of 2,105,428 (up from 568,300). The 200 Senate seats would be allocated to the states using the current geometric mean method, giving California 10 senators, Texas 8, New York and Florida 7 each, Illinois and Pennsylvania 6 each, the next six states being allocated 5 each, with the following 12 states receiving 4 each. The remaining 26 states, from Louisiana down to Wyoming, would each receive the guaranteed 3 senators.

    The Penrose method would have the effect of compressing state US Senate representation, affording a compromise between the current equality of representation and full apportionment (as for the House of Representatives). Senators would, of course, be elected by multi-seat STV.

    As I say, these changes will never happen, but they do show what could be achieved if people of goodwill seriously wanted to radically overhaul and greatly improve and update US democracy and governance.

  11. Steve Todd on March 9th, 2017 at 11:45

    Further to my suggestion that the US Senate should be enlarged to 200 members, I should also point out the actual end-effect of apportioning senators to the states following the application of the Penrose method to determine the effective population of each state.

    The total 2010 Apportionment population of the 24 states that would each have 4 or more senators (California down to South Carolina) is 254,061,354. Those 24 states would have a total of 122 senators, one for every 2,082,470 people. The remaining 26 states (which would have 78 senators) have a total 2010 Apportionment population of 55,122,109; one senator for every 706,694 people.

    The (main) reason for having equality of representation of the states in the Senate was that the Senate represents the interests of the states, and the 13 (to 50) states are of equal status within the Union.

    Following the application of the Penrose method to a 200 member Senate, it can be seen the lesser-populated states would still be able to wield significant influence within the Senate.

    Today, the 20 least populous states (Mississippi down to Wyoming) have 40% of Senate representation. Under my proposal, those 20 states would have 60 senators, being 30% of Senate representation. But, the 26 states having the minimum 3 senators would have 39% of Senate representation.

    The real change in influence in the Senate would come from that body being elected by PR/STV (that would also be true of the House). Take California, for example. Instead of the current two Democratic senators, that state could well elect 6 Democrats and 4 Republicans to the Senate (based on the voting figures for the 2016 California State Assembly election – 61.08% to 37.36%), who would not necessarily vote the same way, each side arguing their position on a particular bill better represents the interests of the state of California than does the opposing position.

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