The President: lightning rod or king?

AuthorCalabresi, Steven G.
PositionResponse to article by William P. Marshall and Jenny S. Martinez in this issue, p. 2446, 2480 - Symposium on Executive Power
  1. THE POWERS OF A KING?

    There is an idea current in the land today that presidential power has grown to the point where it is a threat to democracy. The New York Times editorial page writers and leading Democrats regularly accuse President George W. Bush of acting like a king or seeking kingly powers. (1) In the academic community, Professor Bruce Ackerman has written powerfully about what he sees as the danger that presidential power poses to democracy itself. (2) In this Symposium Issue, Professors Bill Marshall (3) and Jenny Martinez (4) argue that the presidency has become too powerful. Marshall goes so far as to argue for reducing presidential power by separately electing the Attorney General.

    In this Commentary, we suggest that when political power is examined more broadly, Presidents and their parties generally have less power in the United States than commentators recognize. We believe the President today is less of a king than a lightning rod. Indeed, the constitutional and practical weakness of the presidency is, if not a threat to American democracy, at least a worrisome limitation on it.

    The reason for this is that midterm and off-year elections show a strong backlash against members of the President's party. Political scientists have put forward two theories to explain midterm elections, both of which underestimate this backlash. The first theory of surge and decline holds that presidential midterm losses are explained mostly by the absence in those years of presidential coattails. (5) The second theory of midterm elections is that they are mostly a referendum on how well the President and the economy are doing. (6) These approaches tend to look too narrowly at federal elections when much of the reaction to winning the White House occurs in the states.

    Our backlash theory holds that midterm elections almost always punish the President's party so that it actually loses as much or more power in state and federal elections as the party gained by winning the White House. In essence, this pattern is one step forward in presidential election years and several steps back over the succeeding three years. In midterm elections, it is not merely that, without the President at the top of the ticket, his party loses some of its gains from the presidential election years (the surge and decline theory). Nor are the losses confined to the federal government or to years with unpopular Presidents or poor economies, as the referendum theory might imply. Indeed, when a party wins the White House, it gains on average only one governor's seat, while over the next three years the President's party loses on average four governorships, leaving it worse off than before it won the presidency. Winning the White House leads to losing a lot of important statehouses, which in turn are key to influencing domestic policy. Given this pattern, recent fears about growing presidential power with respect to domestic affairs may be overblown.

  2. A WEAK OFFICE UNDER THE CONSTITUTION

    Every four years Americans focus intently for ten months on the nation's presidential race. That race formally begins in late January with the Iowa caucuses and the New Hampshire primary, and it continues nonstop until November with a torrent of primaries, nominating conventions, presidential and vice presidential debates, and opinion polls. The unmistakable message sent to the voters is that this is it: The selection of a new President will determine which direction we go in as a society for the next four years. Electing the President is the democratic decision that really counts.

    The problem with this idea is that it is not true. The President's formal powers under the Constitution are far too narrow to justify the hoopla that surrounds presidential elections. Under the Constitution, for example, Presidents have very limited power over domestic policy. Anyone who doubts this should consider the fate of President Bush's recent proposals to reform social security and the tax code (7) or President Clinton's attempt to introduce national health care. (8)

    The main levers that the Constitution gives the President over domestic policy are the veto power and the power to appoint principal officers in the executive and judicial branches subject to senatorial advice and consent. But the allegedly imperial George W. Bush has vetoed only one piece of congressional legislation. (9) And it is easy to make too much of even the President's significant power over appointments. It is hard to induce most federal agencies to change directions (the NLRB is a notable exception), as is suggested by the successful thwarting of George Bush's recent attempts to reform the culture at the CIA. One must remember that federal departments and agencies are called bureaucracies for a reason. Even the significant effects of Bush's judicial appointments will be felt mainly in the period after he leaves office.

    A skeptic might say that the President has the dominant voice in foreign policy. Perhaps it is this formidable presidential power that justifies our quadrennial year-long presidential selection spectacle? Consider, however, just how little power a President really has even in this realm. Presidents can start military actions, but those...

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