Unitary Executives, Imperial Presidents, National Emergencies and Partisan Realignment

 When it comes to executive overreach, Trump is standing on the shoulders of giants. 

In light of President Trump's dubious declaration of a "National Emergency" to tap more of the Treasury than Congress will authorize, it's worth noting how far we have drifted from the Framer's intent for presidential power, congressional power of the purse, and the separation of powers in general.

As Gene Healy of the Cato Institute and author of The Cult of the Presidency noted:

"[The President's] constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers."

Oh wait. My bad. That quote was from Cato's 2006 White Paper "Power Surge: The Constitutional Record of George W. Bush." It was an essay I referenced when, as a blogging toddler in 2006, I was alarmed at the ever expanding Unitary Executive claims made by the Bush/Cheney administration.

Later, in 2008, I was gratified to see candidate Barack Obama run on a promise of reversing the executive overreach in the GWB administration and returning the United States to core constitutional principles:

"I taught constitutional law for ten years. I take the constitution very seriously. The biggest problem that we're facing right now has to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that's what I intend to reverse when I'm president of the United States of America." - Sen  Barack Obama - Townhall in Lancaster, PA, March 31, 2008

But I digress. Lets return to what the ACLU has to say about our President's overreach:

"... there is a very real danger that the administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during previous administrations. There is a real danger, in other words, that the administration will preside over the creation of a "new normal."

Oh wait. My bad. That paraphrased quote was from the 2010 ACLU Report "Establishing a New Normal" documenting the Obama administration extending, expanding and institutionalizing the executive branch overreach of the Bush/Cheney administration. The ACLU fears were borne out with later revelations of the Obama administration's widespread warrantless surveillance, continuing indefinite detentions, Presidential ordered drone kills, and of course Obama's infamous "phone and pen" executive orders on climate, immigration policy and the ever expanding regulations by presidential fiat.

The Cult of the Presidency
Abdication of congressional authority to the executive branch did not start with the last three administrations. It's part and parcel of a long term trend that has waxed and waned (mostly waxed) since the founding of the republic. It was Franklin Roosevelt that put the notion of POTUS as Cult Leader into high gear. Every president since has stood on the shoulders of previous executive power abusing giants. At least when FDR issued presidential edicts based on a National Emergency, there really was a national emergency (Great Depression, WWII). We also learned from FDR that even if there is a real national emergency, presidential orders can be misguided, racist,  immoral, unconstitutional and contradict American values.

Just Vote Dividist - 2018 Closing Argument Edition

Welcome to the seventh election eve "Just Vote Dividist" post. This blog was started in 2006 to advocate a divided government voting heuristic. Every election cycle since we've posted a closing argument how and why to vote for divided government.  

In this post you'll find our recommendations for the 2018 midterms. It doesn't take a lot of analysis. President Donald Trump in only half way through his term. Dividing this government requires Democrats winning the majority in either one or both legislative branches. The 2018 Divided Government vote is for a straight Democratic ticket.

In previous election eve editions we've painstakingly summarized and recycled our previous votes and general arguments for divided government. We'll include that in an addendum at the bottom of this post, and get right to the meat of why and how you should vote for divided government.

First an elementary civics lesson that far too many Americans fail to fully appreciate.

The President of the United States is not the government of the United States. 

The President of the United States is not even necessarily the leader of the government of the United States. The executive is one of three co-equal branches of government. The actual government of the United States is led by the Speaker of the House and Senate Majority Leader representing their respective democratic institutions in concert with the President of the United States. The personalities, interpersonal relationships, communication skills, ideological motivation, partisan loyalties, personal ambitions, institutional obligations and dynamic interactions between those three leaders determine the domestic policy and international posture that governs the United States.

Co-Equal Means Co-Equal

The President is not the leader of the government but is the leader of a political party. In a unified one party government, the President may function as the leader of of the United States government if the president's party in Congress put partisan discipline and loyalty above their constitutional responsibilities. When we have a divided government, leadership of the United States government is just as likely to reside in the Congress as it is in the Executive branch.

Did I Mention The POTUS Is Not The Government Of The United States?

This is not to minimize the role of the President. The President is the putative "Leader of the Free World" and "Commander in Chief" of the most powerful military in the history of the world. The "Unitary Executive" has extraordinary, almost monarchical latitude over United States foreign policy. However, United States domestic policy is forged primarily in the House of Representatives, by design.

In Divided Government - The Speaker of the House Calls the Domestic Shots

The "People's House" - the most democratic of our government branches, is where the Framer's intended and expected domestic policy to be created and shaped. This is why the House is the first branch codified in the first article of the Constitution. This is why the Speaker of the House is second only to the Vice President in succession to the Presidency. The Senate - representing the semi-sovereign state governments - was intended by the framers to be a moderating influence over both the majoritarian domestic policies of the House and the foreign polices of the President.

A Co-equal Triumvirate Governs The United States.

This structure is unique. This structure is exactly what the framers intended. This structure is what makes our system exceptional. The point is this - given that this power sharing triad is the essence of our elected government, perhaps we - as voters - should focus less on the singular office of the President and  more on the combination of leaders that will run our government.

With that in mind, we are pleased to present the three actual, realistic 2019 - 2020 United States Government choices you will be voting for Tuesday November 6. To simplify, we've eliminate the inprobable Democratic Senate, Republican House possibility. If there is a big enough Blue Wave to overcome the monumental Democratic map disadvantage in the Senate, the House will have to fall with it. One of the following three options will be elected on Tuesday to govern the United States for the next two years. Stack ranked by Dividist preference from worst to best.

Come back 4th Amendment. We miss you. Yes, we overreacted and hurt you. We're sorry. We didn't mean it. It won't happen again. Really.

The 4th Amendment is staging a comeback. It's been a long time coming.

Live by the pen. Die by the pen.

Is the pen mightier than divided government? 

In the midst of the State Of The Union public relations blitz, President Obama promised to wield his mighty pen in the service of a legislative agenda stymied by our elected divided government. Unsurprisingly this stirred up the loyal opposition. Paul Ryan warned of "an increasingly lawless Presidency".  Karl Rove suggests "The president has to act within the statutory limits given to him by the United States Congress or... we are simply an authoritarian regime". Charles Grassley was "gravely concerned that the system of checks and balances enshrined in the Constitution is threatened by the President’s determination to take unilateral action". Ted Cruz  described the Obama administration power grab as a “breathtaking... pattern of lawlessness”. The Christian Science Monitor asked "Is Barack Obama an imperial president?":

Good news! The Imperial Unitary Executive is going to "get things done".

It was a good week for presidential power grabs and executive branch assertions of fiat authority.  For our constitutional form of government, not so much. The administration started the week with a PR offensive to assure everyone that the President has a pen and a phone and for some reason this makes Congress irrelevant. Very reassuring.

Washington Times: Dan Pfeiffer: 'President Obama is ready to use every executive action available'

"White House senior adviser Dan Pfeiffer sent an e-mail early Tuesday to preview President Obama's plan to use his executive power in ways Americans have never seen before. "President Obama has a resolution for 2014: That this will be a year of action," Pfeiffer said in the e-mail, pointing out that Obama would no longer be waiting around for Congress to get things done.  "Instead, the president will use his executive authority, both his pen and his phone, to work with anyone to get things done..."

CBS: Obama On Executive Actions: ‘I’ve Got A Pen And I’ve Got A Phone’

"Calling for “all hands on deck” to assist the economy, President Barack Obama is urging his Cabinet to identify ways to keep his administration relevant ...“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone,” Obama said Tuesday as he convened his first Cabinet meeting of the year.  Obama continued: ”And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward..."

The President summoned the Obamite Minions to rally around this initiative to bypass all that messy congressional legislative unpleasantness in the service of his agenda:

"2014 will be a year of action for the American people — and President Obama is ready to use every executive action available to him to make sure of it... Tell the President you're IN for 2014..." 

 The Dividist filled out the form and told the President he is IN, but he really isn't. The Dividist is actually much more IN with checks, balance and separation of powers between the executive and legislative branch as intended by the founders and codified in our Constitution.

George Will on the "unfettered executive" and Madisonian constitutional democracy

When George Will is not wasting his WaPo column singing praises for the latest GOP clown candidate in the national media spotlight, his clear voice can highlight the truth of a matter like few other pundits.  His latest column is a pitch perfect observation on how President Obama's State of the Union address betrays a longing for an "unfettered executive" branch by his administration and among his supporters:

"Obama, an unfettered executive wielding a swollen state, began and ended his address by celebrating the armed forces. They are not “consumed with personal ambition,” they “work together” and “focus on the mission at hand” and do not “obsess over their differences.” Americans should emulate troops “marching into battle,” who “rise or fall as one unit.

Well. The armed services’ ethos, although noble, is not a template for civilian society, unless the aspiration is to extinguish politics. People marching in serried ranks, fused into a solid mass by the heat of martial ardor, proceeding in lock step, shoulder to shoulder, obedient to orders from a commanding officer — this is a recurring dream of progressives eager to dispense with tiresome persuasion and untidy dissension in a free, tumultuous society...