« Hydrofracking and "Home Rule" Principle as a Canon of Statutory Construction | Main | Law Professors and Social Media »

Wednesday, April 16, 2014

The American Presidency and Partisan Conflict

In my previous post, I observed that reserving all of the presidential power for one side of the political aisle denies representation to half the country, a serious problem in itself. It also causes other problems. In particular, a one-party executive fans the flames of partisan conflict.

With the marked transfer of domestic and foreign policymaking power from Capitol Hill to the Oval Office over the past 75 years, the White House has become the dominant power center in the national government. Presidents control the issuance of regulations for air quality, energy exploration, education, health care, consumer protection, and many other concerns. They also establish national policy through signing statements, executive orders, and the granting of waivers from statutory obligations. Thus, for example, President Obama has doubled fuel efficiency for automobiles, expanded offshore drilling for oil and gas, and granted waivers from No Child Left Behind and the Affordable Care Act.

While presidents exercise considerable domestic authority, they dominate Congress even more in foreign affairs. Presidents play a far larger role in the determination of U.S. policy—and Congress plays a far smaller role—than intended by the founding fathers. Whether Truman with Korea or Obama with Libya, presidents send troops into combat without congressional authorization. Presidents also reach agree­ments with other countries without congressional participation, they unilaterally recognize other governments and terminate treaties, and they decide on their own about restrictions on the rights of U.S. citizens to travel abroad.

When one person exercises the enormous power of the modern U.S. presidency, we invite hyperpolarization. Under the current system, Democrats and Republicans fight tooth and nail to capture the White House. They spend hundreds of millions, now billions, of dollars. Moreover, once an election is over, each party launches its effort to win the next presi­dential race. The party of the president unites behind the president’s initiatives to ensure a successful administration. The losing party tries to block the president’s proposals so it can persuade voters to change parties at the next presidential election. Republicans lined up against the Affordable Care Act to "break" the Obama administration, and Democrats lined up against Social Security reform to weaken the Bush II administration.

Or to put it another way, excessive partisan conflict can be expected under a winner-take-all system for a presidency whose power has grown so much. Indeed, the sharp increase in partisan behavior over the past several decades paral­lels the marked expansion of presidential power over the same time period. Currently, a candidate can win election with a small majority or even a minority of the popular vote. As a result, substantial num­bers of voters feel that that their interests and concerns are not rep­resented in a politically dominant White House. It is no wonder that the party out of power spends more of its time trying to regain the Oval Office and less of its time trying to address the country’s needs.

This is not to say that the presidency is the sole cause of partisan conflict. Other factors are at work as well. Nevertheless, the one-party executive is an important factor. Indeed, the link between presidential politics and partisan conflict has a long pedigree. For example, political parties first appeared in Congress when legislators aligned themselves either in support of or in opposition to the executive policies of George Washington and Treasury Secretary Alexander Hamilton. Similarly, parties first mobilized nationally around presidential elections, starting with the 1796 contest between the Federalist John Adams and the Democratic-Republican Thomas Jefferson.

To be sure, partisan competition provides important benefits. We want elected officials to engage in a vigorous policy debate. But the debate today is too much about political calculation and not enough on the merits.

There is a another key problem when the presidential power is reserved for one side of the political aisle. It encourages misguided decisionmaking. That will be the topic of my next post on the presidency. In the meantime, you can find the introductory chapter to my book-length treatment of the presidency, "Two Presidents," here.


Posted by David Orentlicher on April 16, 2014 at 01:00 PM | Permalink


Is this a parody?

Posted by: Barry | Apr 16, 2014 4:43:06 PM

The comments to this entry are closed.