Friday, January 20, 2017

America and the Amazing Two-Headed President

1001 Books To Read Before Your Kindle Battery Dies, Part 78
David Orentlicher, Two Presidents Are Better Than One: the Case for a Bipartisan Executive Branch

Let’s start with a statement Americans of most political stripes will find agreeable: our Presidency currently doesn’t work. Policy positions emerge from the Executive Branch fully formed, and Congress essentially rubber-stamps them. Having one key decision maker leads to bad decisions, as in Bush’s torture memos, or Obama’s unsanctioned drone strikes. Every President since at least Nixon, and arguably most since Andrew Jackson, have exceeded their office’s Constitutional remit.

Like Barack Obama, David Orentlicher is a Constitutional scholar and sometime elected official. He examines multiple suggestions to offset what he calls “the imperial Presidency.” From the Constitutional Convention of 1789 to the present, scholars and jurists have called for executive committees, Parliamentary organization of the executive, or triumvirate power. Orentlicher notes the promises and shortcomings of every suggested reform, and puts forth his own: America needs a two-person Presidency.

Like most scholars, Orentlicher makes his point early, giving us his core outline within the first two chapters. After that, he spends the rest of the book deepening his claims, dismantling anticipated counter-arguments, and placing his position in a historical perspective. Admittedly, this doesn’t make for gripping beach reading. However, it postulates an interesting, and possibly workable, solution to the impasse dogging American politics, an impasse likely to get worse.

By vesting executive authority in the top two vote-getters, requiring two different political parties, Orentlicher suggests we’ll offset our government’s current aversion to consensus. If legislation requires two signatures for ratification, if moving troops requires two commanders’ authority, if executive orders require agreement of two, politically unaligned, Presidents, hasty actions become untenable. Presidential self-aggrandizement, currently widespread and worsening, is minimized by separating the person from the office.

Whatever party loses the White House is reduced to breaking everything in Congress. Republicans obstructed everything Obama attempted, and at this writing, Democrats promise the same treatment to Donald Trump. This reverses the Founders’ expectations, as expressed in Federalist 70. Having experience with powerful, capricious state legislatures, Madison and the Founders wanted a one-person President to offset a dictatorial Congress. Unfortunately, they shifted the nexus of authoritarianism without fixing it.

Other possible solutions exist, Orentlicher admits. Switzerland has a seven-member executive council. Britain’s Parliamentary system diffuses authority across the Cabinet. And many U.S. states have unbundled executive authority. However, on the federal level for a global superpower, Orentlicher demonstrates, such solutions create new problems. By keeping Presidential authority unified, but bifurcating the office itself, we retain the Presidency’s nimble nature, while dismantling the link between individual and office.

Orentlicher admits multiple serious reasons a small Executive Branch remains necessary. What psychologists now know about human decision-making tendencies recommends a small group. A large Congress makes decisions too slowly, while a one-person Presidency permits precipitousness and unconscious bias: every President since Nixon, for instance, has violated the War Powers Act. Two people can, hopefully, make decisions and reach consensus quickly, while minimizing the tendency toward haste.

I admit initially fearing a bipartite executive would basically enshrine the two major parties in Constitutional law. Orentlicher offsets that fear quickly by noting that, if America elects both Presidents simultaneously, voters might stake their conscience on a longshot third-party candidate, hoping not for a win, but a robust second-place finish. This might dismantle the current winner-take-all system that has kept two fossilizing parties in power since the Civil War.

Also, I have concerns about requiring the Presidents to be of different political parties: this would write parties into the Constitution for the first time. In his farewell address, George Washington warned against the overweening authority parties, which he called “factions,” could create. In Congress now, we see legislators clearly more loyal to party than to their constituencies. Orentlicher doesn’t resolve my doubts; this may remain an important debate point.

Prospects for enacting this policy solution are currently distant. Orentlicher admits this, noting that Americans historically like strong, unifying leaders. (Consider the market’s worship of hero CEOs.) However, if Americans can overcome their reluctance to amend the Constitution, this proposal has potential to offset the accumulation of authority into one office that we’ve seen over several decades—accumulation currently paying off by handing that authority to Donald Trump.

Orentlicher doesn’t promise his proposal will solve every American governmental problem. We’ll still face demagogues, bomb-throwers, and ideological impasses. But it potentially remedies a problem which the Founders largely failed to anticipate. It makes America’s Executive more reflective of America’s plural character. And it frees us from the belief that, whatever President gets inaugurated, we’re never yoked to one individual’s vision.

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