In my previous column, I noted that if you go through Article II of the Constitution, “You might be surprised by how little power the executive actually has,” but that over the decades the legislative branch has willingly ceded much of its power to the president.
When we learn about the Constitution in school, we are told that the separation of powers is a feature intended to keep any one branch from becoming too powerful.
The legislature passes laws, but the executive can veto them. Presidential vetoes can be overridden, but the judiciary can invalidate laws too.
The executive has administrative authority, but this can be changed via new legislation, and executive action is also subject to being found unconstitutional.
Judicial interpretations can have their effective meanings mooted by new legislation, and depend for their makeup on executive appointment and legislative confirmation.
So each branch has some powers, but still can have its designs thwarted by the other two. Each branch’s attempts to conserve its own sphere of authority results in a limitation of the others’ authority.
Taken as a whole, this system limits the power of the federal government, to the benefit of state governments and individual rights.
Given this analysis, it seems counter-intuitive that the legislature would acquiesce to expanded executive authority.
But nonetheless, it has. Congress has effectively given up its power to declare war, preferring to be led by the executive branch on the deployment of force. It has ceded large portions of its domestic law-making prerogative to executive branch regulatory agencies. It has acquiesced in executive branch interference in financial markets, about which Article II says nothing whatsoever.
Why would the legislature want the executive to have more power? Why would they voluntarily cede some of their power?
No Power, No Blame
My working hypothesis is that they have structural incentives which make it attractive to do so, namely the dynamics of reelection. They like having power, but it’s possible that by giving away some of their power, it’s easier to keep the rest. If that were true, it would make sense to let the executive have more powers.
It limits the scope of things for which the individual legislator can be held accountable to his or her constituents, making it easier to secure reelection.
Having power, after all, is of no use if you can’t maintain it. With an incumbent-reelection rate of around 90%, it’s clear that staying in office is one of legislators’ main values. If you can stay in office for decades, what difference would it make that you’re responsible for fewer things?
If the executive’s policies go well, legislators can position themselves as part of the team; if they go poorly, they can either claim to have opposed them, or at worst suffer only a greatly diffused share of the blame.
The lightning-rod status of the executive means that people’s ire (and praise) mainly attaches to the presidency, not to the legislators. An individual legislator’s agenda may be hindered by a strong executive, but this will ultimately be less bad for that legislator than failing to secure reelection, and the legislative body as a whole is insulated from accountability.
Learn More: Constitutional crisis or constitution at work?
As I argued last time, this is very bad for the republic – it leads to gross violations of individual liberty with far less accountability and much more difficult redress. But it’s very good for presidents, who find themselves empowered in ways George Washington could scarcely have imagined, and for legislators, who can stay in office almost indefinitely.
It’s hard to imagine what circumstances would produce sufficient incentive for legislators to reclaim the power they have given away. I’ve heard it suggested that term limits would do this. I suspect that’s true, but it’s even harder to see what incentives would lead them to propose those.