Frank Buckley was kind enough to send me a copy of his new book, The Once and Future King: The Rise of Crown Government in America, and now seems like an appropriate time to post my review.
Buckley argues persuasively — and surprisingly — that the Founders intended to establish a semi-parliamentary form of government in Philadelphia in 1787. But the rise of democracy, especially the popular election of the president, empowered the executive and led by the 1830s to a new form of government: separation-of-powers presidentialism. Most political scientists still perceive the U.S. system as one of extreme checks and balances, but Buckley argues that we have now progressed to yet another constitutional order, marked by executive dominance, the “elective monarchy” that the Founders feared so much. The impetus for this change has been the rise of a vast regulatory apparatus: “Modernity, in the form of the regulatory state, is the enemy of the separation of powers and diffuse power, and insists on one-man rule” (p. 6).
When the Constitutional Convention met in Philadelphia, they first dealt with a “Virginia Plan” that had the president elected by Congress, the Senate chosen by the House from states’ nominees, and no executive veto. The plan was clearly parliamentary. The changes that occurred, to an electoral college process for the President, to an executive veto, and to state legislative selection of the Senate, were largely the product of compromises between states’-rights and nationalist factions at the Convention. The Framers did not anticipate direct popular election of the President, and in fact they thought that in most presidential election years, no candidate would win a majority, throwing the choice to states’ House of Representatives delegations. Some delegates claimed that a directly elected President would be a dangerous seed of demagogic monarchy.
In the 19th century, the progress of democracy caused the British and Canadian constitutions to cross paths with the American one. In the U.S., the electoral college became toothless, and Presidents were effectively directly elected by the people. In Britain and Canada, the monarch and the upper house lost legitimacy as nondemocratic bodies, and electoral reform in the U.K.’s House of Commons gave it democratic legitimacy and the upper hand in any battles among the branches. By the time Canada adopted its institutions under the British North America Act of 1867, they were consciously copying a fused legislative-executive, parliamentary system that had emerged in Great Britain, what Walter Bagehot referred to as “the efficient secret” of the British constitution. While the U.S. now featured strong separation of powers, Britain and Canada concentrated power in the Prime Minister.
Today, political scientists still teach that presidents are less powerful than prime ministers, because their legislative role is weak. The U.S. system has more veto players, and as a result policy change is slower.
Buckley acknowledges the logic of the traditional political science approach, but his story doesn’t end there. Since the New Deal, executive power has expanded in three areas: the administrative apparatus, the spending power, and war powers. These changes have happened in Canada and Britain as well, where power has flowed from the cabinet to the person of the Prime Minister.
Congress has delegated broad authority to the executive branch to make regulatory policy, and they have found it difficult to claw back authority when they have tried. The Supreme Court doesn’t like to interfere in interbranch struggles, which effectively lets the executive get away with what it wants to do. A few examples:
- The Obama Administration’s grants of PPACA (Obamacare) waivers to many employers and labor unions, which may have been based on political criteria;
- The Nixon, Reagan, Clinton, and Obama Administrations’ unilateral exercises of war powers without consulting Congress;
- The Bush II and Obama Administrations’ use of signing statements to exempt themselves from following laws they believe are unconstitutional;
- The Obama Administration’s decisions to codify nonenforcement of immigration laws without congressional approval.
Any of these executive decisions could be defended on substantive grounds, but they all add up to a constitutional situation in which the President may act unilaterally without heeding Congress’ expressed will. Even on budgetary matters, the executive branch has extremely broad discretion on how it may spend funds allotted to a department or project (see: Solyndra).
While Buckley presents some quantitative evidence that presidential regimes enjoy less economic freedom, civil liberty, and democracy than parliamentary regimes, the real force of his empirical case comes from the comparisons among three Anglo-American countries: Canada, the U.S., and Great Britain. In Canada and Britain, Prime Ministers enjoy less automatic respect than American presidents do, because they do not combine the roles of head of government and chief of state. By contrast, the U.S. presidency has increasingly adopted monarchical trappings — Buckley points for instance to Obama’s Mumbai vacation that reportedly cost $200 million per day.
The difficulty of passing legislation in the United States’ separation-of-powers system also means that the legal code becomes extremely complex. The U.S. tax code is the envy of no one. Contra James Madison’s arguments in The Federalist, Buckley argues that reversibility is a more important virtue of a democratic system today than checks and balances.
The “reversibility” argument stands in tension with the “incipient monarchy” claim, but they are reconcilable. Separation of powers makes it difficult for Congress to pass legislation but does not inhibit unilateral executive rule. On this point, Buckley could have pointed to the literature on “bureaucratic drift,” which shows that divided government results in more bureaucratic discretion (and, given the bureaucracy’s preferences, overreach). The current U.S. system combines some of the worst aspects of both separation of powers and fusion of powers systems.
Still, as Buckley acknowledges, parliamentary government has also become more centralized over time. In many ways Britain and Canada also approximate “elective dictatorships,” though at least their civil services are more independent of politics. Moving from presidentialism to parliamentarism is no panacea.
So what’s the solution? Buckley suggests Crown government is here to stay in America. Still, he presents some possible reforms: national referendums to break up legislative logjams, abolishing the filibuster and senatorial holds, and resurrecting impeachment as a legitimate political tool for Congress against the President. I am very skeptical of national referendums given their spotty track record at the state level, but support the remaining reforms, even though they are unlikely to make a significant difference. Interestingly, Buckley doesn’t mention a more active judicial role in constraining congressional delegation to the executive. Nowadays, with a paralyzed political system, the judicial branch often seems to be the only way to enforce the rules of the game. In a recent op-ed, Buckley advocates “tit for tat”: when one party abuses presidential power, the other should give it to them just as good and hard when they take power. Only through a war of attrition can both sides come to recognize that untrammeled executive power is in no one’s interest in the long run.
My favorite solution here is decentralization. If the federal government does less, its dysfunctional institutional setup matters less. But decentralization has to work its way through that very dysfunctional process, doesn’t it? Or does it? If Scotland can hold a referendum on independence, why can’t a state hold a referendum on self-government as understood pre-New Deal? It’s not going to happen in the next 10 or even 20 years, but after that, who knows?
Americans are excessively attached to their constitution, which in this day and age no longer seems fit for purpose. Throwing it out and starting over isn’t an option and would likely result in something worse. Read Once and Future King to see the true scope of the problem of executive power, not for easy answers.