The fine essays of the August forum—and particularly those by Philip A. Wallach and Yuval Levin—aptly describe the current role Congress plays in affairs, domestic and foreign. Wallach notes that Congress is a “second-tier actor in foreign affairs” and permits dubious actions to stand, “even when Congress’s own core constitutional powers seem to be in jeopardy.” Levin agrees in large part, adding an amendment to the assessment: Congress exists to pass legislation and to facilitate bargaining across factional and party lines.
In both these regards, Congress has left its primary functions behind and supplanted its legislative and functional roles with that of a ratifier—at best—of executive desire and a partisan body that is often hijacked by the fringes. These diagnoses are deeply insightful and useful in understanding our current politics. They are also worrisome trends. Without taking away from the previous astute analysis, additional consideration of the different incentives between Congress and the presidency will shed light on how the presidency has become outsized. My primary concern is reflected in how frequently I have heard some version of, “If only Congress would do its job!” If I had a quarter for every time I heard this lament, I would easily be able to buy my weekly allotment of Dr. Pepper, which is measured by liters, not ounces.
Alas, it is insufficient to observe that Congress will not do its job and instead allows the executive to set the agenda in nearly all matters, or worse, act independently, all while broadcasting internal dysfunction to the general public. A question as to why this choice is made must be examined in the long historical context of the incentives Congress faces relative to the executive branch. The short answer is that democratic pressure on the presidency to act legislatively undermines the ability of Congress to act legislatively. The perceived difference in Congress’s electoral legitimacy, made up of discrete elected individuals that act as a representational body for the country as a whole, is weak compared to the office of the president, chosen by the whole of the populace through popular election. The fact that there are some nuances regarding the Electoral College does not change the practical fact that the president is popularly elected, if occasionally without a majority of popular votes. The whole nation votes on the presidency and sees that voting process as fundamental in both the selection of the president and establishing legitimate authority to act on behalf of the whole.
The rise of this perception is reflected and encouraged in the rhetoric of presidents. A brief survey of rhetorical highlights of the evolution of presidential legitimacy to act for the whole illustrates the point.
The presidency’s rise as a democratic organ began early. Thomas Jefferson, despite benefiting from the Electoral College in a close and controversial election, expressed concerns regarding the popular divisions sown during the election and sought to mend those fences. Quickly thereafter, this evolved into an assertive view of the president as the representative of the people, beginning with Andrew Jackson.
Andrew Jackson fundamentally reshaped the presidency’s image as the democratic representative of the people and the best expression of the people’s will. This increased democratic pressure on the executive incentivized its expansion, at the expense of legislative and judicial power. Jackson consistently argued that his role was that of an interpreter of popular will. Casting his election as a contest between vested special interests and the people, Jackson argued for the popular primacy of the executive, declaring:
To the people belongs the right of electing their Chief Magistrate; it was never designed that their choice should in any case be defeated, either by the intervention of electoral colleges or by the agency confided, under certain contingencies, to the House of Representatives. Experience proves that in proportion as agents to execute the will of the people are multiplied there is danger of their wishes being frustrated. Some may be unfaithful; all are liable to err. So far, therefore, as the people can with convenience speak, it is safer for them to express their own will.
Jackson somewhat constrained his role as the expression of the people’s will to the limits of the Constitution. Yet he viewed himself as the protector of the document even though he practically tested those limits. His interpretation of the Constitution often aligned with his populist appeal in an anti-special-interest and anti-elitist stance.
The evolution of presidential power advanced further during the Civil War, though it was largely confined to wartime exigencies. Abraham Lincoln exercised the powers of his office to maintain what he saw as the nation’s interests. Later, the rise of the Progressive Era drove a profound transformation in how the presidency was viewed, altering the constraints on the executive branch imposed by both public opinion and the judiciary. Courts, in particular, began to acquiesce to the demands of a more active executive, save for exceptions like independent commissions insulated from direct presidential control.
Theodore Roosevelt, often considered the first modern president, leveraged technological advancements in media to appeal directly to the public, bypassing career politicians, political parties, and traditional electoral mechanisms.
Because Congress sees the presidency as a competing and even superior legitimate authority for the whole people, it has little incentive to legislate against presidential ambition.
Woodrow Wilson and Franklin Roosevelt pushed for further expansion of the office’s scope. Wilson defined the presidency as an engine of popular will and energetic governance, elevating the role beyond its traditional constraints. He famously asserted, “The President is at liberty, both in law and conscience, to be as big a man as he can.” If Jackson had opened the door to popular demands on the president, Wilson flung it wide, leaving room for Roosevelt and others to walk through to a new era of presidential focus. This evolution coincided with ideological shifts away from “individualism and limited government.” The presidency’s cultural and social centrality grew, aided by technological advancements that allowed presidents to communicate directly with the electorate. Franklin Roosevelt’s fireside chats exemplified this trend, contrasting sharply with the reserved demeanor of Calvin Coolidge, who refrained from such verbosity but nonetheless demonstrated the growing cultural expectations of the office. Presidents set the agenda in new ways, more and more proposing policies rather than executing the law. Federal agencies gave presidents a policy side door to bypass Congressional approval, this ability growing with each agency, all while the rhetorical importance of the office grew, shouldering the mantle of “the people’s will.”
By the time of John F. Kennedy, this trend was well established and reinforced in speeches from the president, again describing the president as the singular representative of the national will. Kennedy explained, “For only the President represents the national interest. And upon him alone converge all the needs and aspirations of all parts of the country.”
This trend continues today. In his 2017 inaugural address, Donald Trump positioned himself as the voice of “forgotten” Americans, stating:
The forgotten men and women of our country will be forgotten no longer. Everyone is listening to you now. You came by the tens of millions to become part of a historic movement the likes of which the world has never seen before.
His rhetoric as a popularly elected president, and thus justified in his actions, has only accelerated in his second term.
The evolution of the centralized democratic presidency reflects both the incentives of political operatives and the demands of democratic processes. Electoral design often imposes preferences that reinforce the centralization of power in a single office. While this trend is common to presidential systems, the United States has fortunately maintained relative stability due to its robust institutions and cultural norms, as well as certain elements of the structure of government. Not all checks and balances have failed, but they are bending under the pressure.
One may ask, if the president is elected by popular will, then are the people not the ultimate check on the president and his excesses? If it were only so. Unfortunately, the democratic selection of the president has a warping effect on what constitutes legitimate authority in a Weberian sense. Weber viewed political authority in three co-existing but competing frameworks: legal authority, traditional authority, and charismatic authority. The latter may sound familiar to modern ears, who are familiar with the presidency as a “cult of personality.” This has been used to describe several recent presidents. The threat is that we are moving away from legal authority as establishing legitimacy, particularly in the English common law as modified through American constitutionalism. This translates into a gradual undermining of constitutional authority, both as a document and in the institutional arrangements outlined therein. While neutral principles of law still exist, they cannot be easily erased, even with a series of elections; the trend toward charismatic authority poses a legitimate threat to the rule of law. Principally, that law constrains those in power as much as it authorizes them to act on behalf of the people.
Because Congress sees the presidency as a competing and even superior legitimate authority for the whole people, it has little incentive to legislate against presidential ambition. Thus, James Madison’s theory that ambition would check ambition does not align with the practice. In our partisan age, and frankly throughout the history of the current constitutional arrangement, the incentive to agree or disagree with the president based on partisan alignment exacerbates this promise. Often, agreement or opposition hinges on partisan allegiances rather than policy. Certainly, some debates do cleave Congress along party lines, but it is a curious fact of our political age that moderate members of Congress are more inclined to vote with and support their fringe party members than form a middling alliance. Some of this is a factor of the presidential selection process, which first undergoes a primary process that would be closer to the median partisan voter rather than the median American voter, in turn driving the party members in Congress to rally together. The result is rule by bare majorities in Congress, and either the president uses that process to push through a dubious agenda or ignores Congress under the common justification already discussed in the other essays—“if Congress won’t act, then I will.”
Without understanding the political incentives unintentionally directing power away from Congress, there is little hope that Congress can take up its constitutionally assigned mantles and legislate by forming coalitions as representatives of the American people. While democratic selection of the president remains, Congress will continue to play second fiddle to the presidency.