Presidential Deal-Brokering Threatens Rule of Law

The president has no legislative power. This is confirmed not only by the lack of language in Article II of the Constitution granting the president authority to issue laws, even in times when they may be exigently needed, but also in the rather explicit clause of Article I, Section 1, which states that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

The president’s only prerogative has in the realm of domestic law-making is the affixing of his signature of a piece of legislation which has passed the Congressional gauntlet, thus imbuing it with the approving authority of two branches of government. But even here his judgment is not supreme, for Congress can still pass legislation which the president has vetoed. Even in regard to executive actions, the president can only clarify — using memorandums and signing statements to elaborate on the specifics of how duly-enacted laws are to be implemented and enforced.

The subservience of the president to Congress in most domestic political affairs speaks to the kind of culture the Founders attempted to inculcate: while the branches of government are equal, they have distinct realms, wherein their authority is not to be challenged. While all three are integral to the act of efficacious government and their weight is therefore equal, their authority is relative to the particular part of the process in question. Outside of their very narrow, specific domains, their authority is marginal. This means that Congress — not the president — is supreme in all legislative affairs.

However, this relationship has been upended. The president’s only real authority in matters related to Congress’s legislative agenda is acting in concert with his party to agree upon which issues will be emphasized then using the power of his position to persuade the polity. Congressional members are not national figures; they represent either a state or a constituency within a state. By contrast, the president represents all the people. His job, then, is to invoke this and attempt to convince the citizenry that members of his party are motivated by a desire to improve the national welfare and to convince them that their specific course of action will do so tangibly.

The president may make suggestions to members of his party in the legislature, based on the feedback he receives from interacting with citizens, but he has no authority to demand Congress take up a specific course of action. Partisan identity is a strong bond, and one that encourages concerted actions between branches, but it does not override the strong walls erected between the separate and coequal branches of government.

Contrary to the style of politics which has risen to dominate national elections, a president’s victory is not a mandate to pass a particular set of policies. It may be capture the sentiments animating some subsection of the polity, particularly if the candidates were strongly ideological and particularly if one issue dominated election-centric debate, but voters are ultimately autonomous and animated by an unknowable number of factors which play more or less heavily depending on local and regional issues. This means it is impossible to say empirically that a candidate has a mandate. Rather, the president is there to exert his influence over the bureaucratic machinery of the executive branch — to appoint bureaucrats who will implement laws in a manner that reflects the attitudes of the party in power. Further, most of the president’s Constitutionally-delineated powers have nothing whatever to do with the domestic welfare of the people. Rather, the president is there to make sure the nation prospers on a global stage, creating a broader culture of stability and success from which citizens will prosper.

The idea that a president is elected to have an agenda is contrary to limited government. An agenda-driven president is a creature of conscience. A president who promotes an agenda, even beneficently in the name of populism, necessarily sees all other organs of government as tools to be bent to his own will. This will is an immovable force in politics; the rest of government is to be bent around it, or dispensed with when it stands in the way.

But government based on liberality does not operate on the presumption that all action is ordered around a pre-ordained end. Legislating is not “deal-making.” One party does not simply sit down with another and make a set of verbal agreements with another then set these down into a piece of legislation, perfectly conceived in its first iteration, to then be move unimpeded through Congress.

To the contrary, the entire legislative process is designed to promote a rhetorical dialectic, wherein legislators either invested in the premise of a bill or divested of it present an argument and try to bring others around to their way of thinking, in the end succeeding or failing not only on the merits of the legislation but also on those of their efforts to explain its desirability.

Congressional supremacy in the law-making process is not only a matter of maintaining the separation of powers, but maintaining a political culture governed by the rule of law rather than men. When the president can huddle broker deals with Congress, government is being bent to the wills of all those involved. In the short-term, this may not seem problematic, particularly if one agrees with the action being taken. However, it sets a precedent where it is acceptable for the president not only to supersede Congressional procedure, but to do so in a manner that reflects his viewpoint, not the interests of the people. When this occurs, the nation trends dangerously towards imperialism. It is tempting to dismiss this, particularly when it augments the success of one’s political party. However, to allow government to be based on will is to unmoor it to rationality. Will is fickle and there is no guarantee that a president’s perspective will not change. And if it does so, the precedent which allows executive power to run over opposition will have been established, and then government will become despotic.


Originally published at The Politics of Discretion.

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