Friday, July 22, 2011

The Constitutional Weakness of the Presidency

Responses from a prior post:

A reader writes:

"constitutionally structured weakness of the presidency". Eh, Johnson and Nixon were no stronger constitutionally.

and another:

"constitutionally structured weakness of the presidency" and Obama's relative unwillingness to abuse his power? I don't actually know details here, I'm just speculating... or maybe congress was just more compliant with earlier presidents.

First, I'd like to qualify my comment a little bit. The presidency is constitutionally weak in the legislative context because the President has no formal influence on the legislative process. Article II of the Constitution is tellingly short, spending more time outlining qualifications and the process of selection than it does on the actual duties of the chief executive. Under the original conception of the Constitution, the Presidency was designed to execute the laws passed by Congress (hence, Executive Branch). As to what those laws should be or how the President could influence their creation, the document is silent.

So, the President cannot force legislative outcomes but he can influence them, through techniques like presidential persuasion and agenda setting. (The question of “what constitutes as part of the Presidents informal legislative influence” is a serious one, which many talented political scientists have spent years of research trying to answer.) There are numerous factors that have made the Oval Office more and more influential on how Congress acts. Examples off the top of my head include the President's foreign policy control leeching over to domestic policy, Congresses' increasing willingness to cede policy responsibility, and the advent of television. Now, all of these examples illustrate ways that the Presidency has changed since the Constitution, yet the formal powers themselves have changed very little.

So I'll repeat, while the President does posses numerous unofficial tools to influence the legislature, and numerous executives have taken advantage of them to help produce specific legislative outcomes. But, our Chief Executive does not posses a Green Lantern Ring to create policy by fiat. The structure of our government's institutions creates real and binding constraints about what individuals within government can and cannot do. Any analysis of President Obama's action, or inaction on preferred policies needs to understand that.


  1. Article I of the constitution also makes no mention of political parties, the offices of Majority Leader, Majority Whip, Minority Leader, Minority whip, or the maneuver of a filibuster. But all of those have become political institutions.
    My point is and has been, the constitutional role of the president is not a "structural impediment to enacting liberal policies". Having a disciplined opposition party that plays a zero sum game of "if this passes, Dems win, if it fails we win" is.
    Having a Democrat majority with members so conservative (Blanche Lincoln, Max Baucus) that the president has to reach out to Olympia Snowe to cross the aisle so these dems can have political cover to vote yes is an impediment. And in the current partisan climate, with the Republican party being so disciplined, having a senate majority leader who cant keep Max Baucus, Joe Lieberman, and Blanche Lincoln on message is a structural impediment to creating progressive policy.

  2. Max,

    Thanks for commenting. I always wanted my first to be special.

    As to the substance, I think we're in agreement that the biggest impediment to progressive policy right now is the the presence of an opposition party that has an a priori opposition to the majority's agenda, irrespective of policy substance.

    My big issue is how fashionable it is among left-wing commentator and activists to blame Obama what's very clearly Republican obstructionism. There is not much he can do, because as I've spelled out, the institution of the Presidency is legislatively powerless.