Presidential Leadership & the Separation of Powers

Eric A. Posner

Abstract: The presidents who routinely are judged the greatest leaders are also the most heavily criticized by legal scholars. The reason is that the greatest presidents succeeded by overcoming the barriers erected by Madison’s system of separation of powers, but the legal mind sees such actions as breaches of constitutional norms that presidents are supposed to uphold. With the erosion of Madisonian checks and balances, what stops presidents from abusing their powers? The answer lies in the complex nature of presidential leadership. The president is simultaneously leader of the country, a party, and the executive branch. The conflicts between these leadership roles put heavy constraints on his power.

While the topic of presidential leadership has fascinated political scientists and historians for decades, legal scholars have ignored it. Legal scholars rarely discuss “leadership”–of the president or anyone else. They are concerned with the legal constraints on the presidency, not the opportunities that the office supplies to its occupant. Moreover, in con- trast to political scientists and historians, who find it difficult to resist celebrating presidents who show great leadership qualities, legal scholars almost universally take a critical attitude toward the president.1 And the leaders who commentators frequently judge as “great”–including Abraham Lincoln, Woodrow ERIC A. POSNER, a Fellow of the Wilson, Franklin Roosevelt, and Ronald Reagan– American Academy since 2010, receive the most critical attention. This is because is the Kirkland and Ellis Distin- those leaders turn out, with a few exceptions, to be guished Service Professor of Law the presidents who most frequently tread on consti- at the University of Chicago. His tutional norms. This raises a paradox. How can our books on executive power include top presidential leaders also be major lawbreakers?2 The Executive Unbound: After the Mad- isonian Republic (with Adrian Ver- To address this paradox, we start with the Consti- meule, 2011) and Terror in the Bal- tution. The Constitution says almost nothing about ance: Security, Liberty, and the Courts leadership. It does not identify a leader of the coun- (with Adrian Vermeule, 2007). try, a head of state, or even a head of government.

Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00395 by guest on 29 September 2021 Presidential By vesting the executive power in the pres- or by a tyrannical legislature. Their solu- Leadership & ident, it implies that the president is lead- tion was to supplement elections with the the Separation of Powers er of the executive branch, but not that system of separation of powers. Elections he is the leader of the country or the gov- would ensure that government officials en- ernment. Moreover, not everyone agrees joyed popular support when they reached that the president is leader of the execu- office, but they could not, by themselves, tive branch. Even today it is controversial prevent those officials from accumulating whether executive agencies must answer power while in office or using it to main- to the president; the so-called independent tain their position and abuse the public agencies like the Federal Reserve do not. trust. The separation of powers addressed Congress sets up agencies and gives them this risk. Madison argued that each of the their marching orders, controls their bud- three branches of government would com- get, and routinely harangues their chiefs. pete for power and in the process con- And, of course, Congress demands that the strain each other. The usual picture is one president comply with its laws, citing the in which the officials in each branch are Constitution’s Take Care Clause and Su- motivated to inflate their personal power premacy Clause. The text of the Constitu- by expanding the power of the branch in tion could be read to envision a president which they operate, and hence by resisting who is merely an agent of Congress, one the efforts of officials in other branches to who has little discretion to exercise lead- extend their power. Actions that seek to re- ership except perhaps over a small staff of distribute power–actions that would re- assistants. sult in power being concentrated in one of- The Constitution is hardly clearer about fice or branch–would be blocked. Actions Congress. It designates the vice president that advance the public interest would as president of the Senate, but in consti- (presumably) not be blocked. A separate tutional practice, he is not its leader. The executive branch would enable the govern- Constitution gives the Senate and House ment to act quickly and decisively, but be- the power to elect officers, and the leader- cause the executive would derive most of ship positions in those institutions emerge its authority from Congress, it would be from that process. Even so, there is not a blocked from expanding its power. leader of the House or the Senate in a mean- Consistent with the Madisonian struc- ingful sense. The real leadership positions ture, then, the Constitution–more by im- are held by the top party official in each plication than by language–creates a group body; so Congress has four leaders, with of leaders, but no leader of the nation. The the majority leaders being something like government is a kind of institutional con- coequals. Finally, the Constitution does not federacy. The founders, who were well- create a leader of the courts (though it re- versed in classical history, may have en- fers in passing to a chief justice presiding visioned a system like the Roman Repub- over impeachment trials). Congress creat- lic, where there were leaders but no leader. ed the position of chief justice, whose pow- The Roman Senate was a collective body, ers over the federal judiciary are limited. and men with distinctive gifts like Cice- Why does the Constitution say so little ro could emerge as leaders at critical mo- about leadership? The founders sought a ments. But leadership was fluid; it moved more effective executive after the debacle from one person to another in response to of the Articles of Confederation, but they events. The most important office was the also feared an excessively powerful nation- consul, but there always were two consuls, al government led by an imperial president and they served only for a year. A dicta-

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00395 by guest on 29 September 2021 tor could be authorized for short periods ers was supposed to allow decisive action Eric A. during military emergencies. These and by the executive while blocking it or any Posner many other restrictions on office-hold- other part of government from acquiring ing worked to block–or at least retard– excessive power, but it has never been clear the emergence of charismatic individuals how this system could work. The Consti- whose power derived from their personal- tution’s checks and balances simply make ities, connections, accomplishments, and it difficult for the national government to family lineage, rather than from their tem- act, whether for good or for bad. The ba- porary occupation of an institutional po- sic problem with a government action– sition. The Roman Republic survived for whether a military operation, negotiation centuries without a king. Men who sought of a trade treaty, or the construction of a to become leaders, like Sulla and Caesar, new canal–is that it creates losers as well as were seen as usurpers. The imperial lead- winners. Vetogates enable potential losers ership of Augustus and his successors was to head off government action that harms not possible until the Republic collapsed. them, but the more vetogates that are built But the founders’ aversion to a national into the system, the easier it is for losers to leader ran into trouble from the start. Even block actions that may be in the public in- while debating in Philadelphia, it was wide- terest. Even if the actions hurt no one at all, ly understood that the new country would people located at the vetogates can block be led by a great man: George Washington. the action unless they receive special treat- And he would not be Speaker of the House ment. Separation of powers, which is dis- or chief justice; just as he was president of tinguished from other systems like parlia- the Constitutional Convention, he would mentary government by the large number be president of the country. The selection of of vetogates it creates, just leads to gridlock Washington was an obvious choice. He was and ineffective government. not just the hero of the Revolution; he was The rise of presidential leadership, be- a natural leader who had earned the trust ginning with George Washington, only of his officers and soldiers through many partly ameliorated this problem. Wash- years of wartime military service. The new ington alone entered office with a large country’s best chance was to throw its lot enough wellspring of trust to enable him to a man who already enjoyed the trust of to use the office aggressively–and, even the nation. And the position of president, then, he frequently acted with extreme cau- rather than House Speaker or chief justice, tion, careful to consult Congress and follow was the obvious choice as well. Washing- its laws even during emergencies like the ton was a military man, and what the coun- Whiskey Rebellion. Only a few successors try needed was a military leader to protect with exceptional talents–Jefferson, Jack- it from Indians, Europeans, and internal son, maybe Polk–could overcome the bar- dissenters. So while the founders drafted riers to government action, and they did a document that failed to recognize a na- so only on occasion. However, perhaps tional leader, they prepared the way for the because the country was focused inward first and greatest national leader. The nega- during the first sixty years of its existence– tion of presidential leadership was to be a or perhaps because the party system would legal fiction. permit new forms of cooperation among the branches–the cumbersome structure The immediate resort to presidential lead- of the national government could be toler- ership spelled trouble for the Madisonian ated. State governments undertook inter- system. The system of separation of pow- nal development. Congress tended to give

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00395 by guest on 29 September 2021 Presidential the president a free hand for foreign rela- While the separation of powers eroded, Leadership & tions and military operations, when quick the president’s personal authority expand- the Separation of Powers and decisive actions were necessary, and ed. Today, President Obama can use his le- the gains from security or territorial con- gal and constitutional authority to imple- quest could be widely distributed. Other- ment many of the policies he prefers. He wise, the national government was weak still needs congressional authority for ma- and presidential leadership thin. The great jor legislative changes, but the president controversies over slavery were resolved by initiates the debate by appealing to the Congress, not the president. And then the public and demanding support from the system buckled. The country was saved by thousands of people who owe him favors Lincoln, the greatest leader since Washing- for patronage and other benefits he has be- ton, who ran roughshod over the Madiso- stowed or has the capacity to bestow. He nian system in countless ways. But it was leads his party, which also gives him au- in the twentieth century that separation of thority over Congress when his party en- powers gave way decisively to a system of joys a majority in both houses, and influ- personalistic leadership by the president. ence over Congress even when he does The evolution was not linear, but it was not. He nominates judges who advance his unmistakable. Markers along the way in- ideological goals, and fills the top ranks of cluded Theodore Roosevelt’s innovation the bureaucracy with his supporters. He of appealing directly to the public for sup- leads an institution that gathers and pro- port rather than working through Con- cesses information (especially confidential gress; the concentration of presidential information) much better than Congress power under Woodrow Wilson; the vast can, and this informational advantage– expansion of the federal bureaucracy un- along with the fact that he occupies his of- der Franklin Delano Roosevelt, including fice continuously while Congress comes the inauguration of a new form of admin- and goes–gives him the ability to set the istrative government; and the Cold War– agenda and control the public debate, to era consolidation of presidential control act and confront Congress, passive and di- over foreign policy and a vast standing vided as always, with a fait accompli.3 army. A subtle but important change was President Obama came to office promis- that the locus of policy-making authori- ing economic stimulus, financial regulation, ty moved from Congress to the president. universal health care, carbon-emission reg- While Congress continued to debate legis- ulation, immigration reform, and reforms lation, the president set the agenda. From to counterterrorism. He set the agenda; a legal standpoint, the expansion of pres- Congress reacted. Congress gave him the idential power took two forms: the en- legislation he sought in the first three cas- actment of hundreds of statutes that gave es: the American Recovery and Reinvest- the president vast discretionary authori- ment Act of 2009, the Dodd-Frank Act, and ty (and large staffs to implement them); the Affordable Care Act. The second two and presidential assertions of unilater- examples are of dual significance. Not only al authority under the Constitution. The did Congress acquiesce in the president’s first required active congressional par- legislative agenda; it vastly expanded his ticipation, the second, acquiescence; but authority, and the authority of his succes- they were mutually reinforcing, and the sors, to regulate–that is, to make policy de- Supreme Court–after modest resistance cisions–in the financial and health sectors that ended with Roosevelt’s court-pack- of the economy. While Congress refused to ing plan–gave its imprimatur. give Obama the climate and immigration

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00395 by guest on 29 September 2021 laws he sought, the president implement- but he was also the leader of the executive Eric A. ed his plans administratively, relying both branch. Consistent with the constitution- Posner on constitutional norms of executive dis- al structure, this meant that Washington cretion and existing statutes that gave him found himself frequently being opposed by vast authority. The regulations were not as Congress. And then there was a develop- far-reaching as the legislation he sought, ment that the Constitution failed to envi- but they accomplished a great deal. Obama sion. Washington soon found himself the also used his regulatory authority and his le- de facto leader of the Federalists. In later gal team to advance lgbt rights. Of all of years, when the party system fully emerged, Obama’s major policy initiatives, the only the president assumed leadership of the one that Congress has completely frustrat- party. The president became the leader of ed is his plan to shut down the military pris- three separate institutions: the country, the on at Guantanamo Bay. executive branch, and a party. But the erosion of separation of powers To understand the significance of this did not lead to the abuses that the found- development, we need to examine the con- ers feared. While his critics argue–often cept of leadership more carefully. Broadly with justice–that Obama has violated con- speaking, a leader is someone who can mo- stitutional norms, the president is not a dic- tivate a group to act in ways that maximize tator; his policies have enjoyed the support the well-being of the group or promote its of popular majorities or large minorities. It values. Leaders typically face a collective is a major irony that the presidents whom action problem among group members historians and political scientists have de- who prefer to act in their self-interest un- clared great leaders have engaged in con- less they can be assured that all members stitutionally dubious behavior on a grand of the group will act in the group inter- scale: Washington, Lincoln, Theodore Roo- est. The successful leader provides these sevelt, Franklin Roosevelt, Truman, Lyndon assurances. Leadership seems to depend Johnson, Reagan. While Nixon reigns as the fundamentally on the ability of the lead- greatest constitutional lawbreaker–and no er to acquire and maintain the trust of the one, I think, would call him a great leader– group. As long as the group believes that all the presidents who were constitutional- the leader will act in the interest of all its ly scrupulous have also been the most insig- members, and is intelligent and informed nificant and are now forgotten. This raises enough to make correct choices, the group a question. If the separation of powers no will give the leader its trust, and the leader longer constrains presidents from commit- will be able to lead by making choices on ting abuses, what does? the group’s behalf. How do leaders inspire trust in their fol- The answer lies in the nature of presiden- lowers? A huge and inconclusive litera- tial leadership, and the way in which the ture has failed to identify specific person- psychology of leadership interacts with the ality attributes or skills that are associat- institutional system we have inherited from ed with leadership (though this has not the founders. While George Washington stopped thousands of educational insti- was already turning the office of the pres- tutions from offering courses in “leader- idency into the primary leadership posi- ship”).4 In practice, however, we can see tion of the country, he did so from within that the leader demonstrates persuasively the separation-of-powers structure. Wash- –through word and action–that he or she ington was, from the start, the leader of the shares the group’s interests and will keep country–in defiance of the Constitution– his or her promises. Most leaders thus de-

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00395 by guest on 29 September 2021 Presidential pend on their reputation, which they build Regarding the question of why presi- Leadership & up through a long career of demonstrating dents do not abuse their positions, the an- the Separation of Powers success in different organizations and in in- swer is connected to conflicts inhering in creasingly large and heterogeneous groups. the institutional arrangements that they Group members typically trust leaders be- must manage. In place of the Madisoni- cause the leaders hail from their ranks, have an triptych of executive-legislative-judi- demonstrated integrity by keeping their cial, let me propose a different tripartite promises, and have shown competence by structure: executive-party-country. And making choices that advance the group’s in- in place of the Madisonian political equi- terests. Nearly all American political lead- librium maintained by the interaction of ers were born in America (and, of course, three opposing forces, consider a set of the president must be by law), and all pres- concentric circles. The president remains idents have held office or other significant the leader of the executive branch under leadership positions before being elected. the surviving detritus of the constitution- Presidents who are judged great leaders al structure imagined by Madison. By tra- overcome entrenched resistance to imple- dition, the president is leader of the coun- ment policies that advance the public inter- try and of a party. So the president is leader est; they do so usually by knitting together of three different groups at the same time. a coalition of groups whose trust they have Remember that leadership depends on managed to win. maintaining the trust of the group. This People with identical leadership qual- means acting in the interest of the group, ities can be greater or lesser leaders de- which often comes at the expense of peo- pending on the political contexts in which ple outside the group. When the president they operate. Some authors emphasize the acts as leader of the nation, the group con- large role of public expectations–which sists of all Americans, while the outsiders are shaped in part by the behavior of pre- are foreigners. When the president acts vious presidents–and the way that a presi- as leader of his party, the group consists dent’s biography and personality resonate of party members, Democrats or Repub- with the public at a particular moment in licans. When the president acts as leader history.5 Sometimes there is little scope for of the executive branch, the group consists leadership because the country is either of the members of the federal bureaucra- content or excessively divided; even an cy, including the military. This means that exceptionally talented leader may in these members of one group may be excluded contexts accomplish little. When people from another group, and yet they all look have diverse interests, policies that ad- to the same person for leadership. vance the interest of one group may harm Consider, for example, President Obama’s another. The leader, then, faces the chal- counterterrorism policies, including his use lenge of compensating the harmed group of drone strikes to assassinate suspected for its support, or promising to advance members of Al Qaeda and the Islamic State. future policies whose benefits will out- Obama believes that it is in the interest of weigh the group’s short-term losses. Cir- the country to maintain these policies. Ag- cumstances also help define the interests gressive counterterrorism tactics have cost of the group. A population will be more Obama the support of some people in his unified when facing a foreign threat than party, but they have helped him maintain when debating the progressivity of taxes. support among people outside his party. This is probably why wartime presidents More aggressive military policies make it are often remembered as great leaders. harder for Republicans to accuse him of be-

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00395 by guest on 29 September 2021 ing soft on terrorism, of being a closet Mus- Civil-service employees are typically ap- Eric A. lim, or of disregarding American security. pointed by agency heads who are not per- Posner Many of Obama’s policies advance his mitted to take partisan loyalties into ac- party’s interests. Here I mean both the count when hiring (and in any event, civil- party’s strategic interests and the values service employees will stay in office long the party stands for. Immigration reform after the administration turns over). Civil- provides a good example. Democrats seek service employees also vastly outnumber to cultivate the support of Hispanics, and the political employees, so while they are most Hispanics support Obama’s execu- nominally subordinate, their expertise, tive actions to protect people who entered mastery of institutional norms, and num- the country illegally. Obama’s support for bers ensure that they control most of an the Dodd-Frank Act was consistent with agency’s day-to-day actions. They can also Democrats’ view that the financial indus- embarrass their political leaders by leaking try should be subject to greater regulation. confidential documents, complaining to The Affordable Care Act also advanced a the press, dragging their feet when asked longtime Democratic position that health to implement policies the president favors, insurance should be provided universally. and threatening to resign. Obama, like his predecessors, must main- This is why the risk that the president tain his leadership of the country and his could abuse power though the bureaucracy leadership of the party, and it turns out that is exaggerated. This risk plays a part in po- strengthening his leadership of one group litical discourse, and worries about it have hurts his leadership of the other. The mech- a distinguished historical pedigree. After anism is straightforward. When Obama all, the Romans who helped bring down takes an action that advances the interests the Republic owed their power to their of one group at the expense of another, the leadership over the army. In the end, sol- losers of the deal begin to wonder whether diers were more loyal to the generals than he has their interests at heart; they are more to the state. In 1951, Truman lost confi- inclined to distrust him, even as the bene- dence in, and the confidence of, General ficiaries’ trust in the president is strength- Douglas MacArthur, and some historians ened. have argued that the country approached The president’s leadership of the exec- a coup d’état. In modern times, citizens utive branch introduces yet another com- worry that the president can use the civil- plicating factor. The federal bureaucracy ian bureaucracy to spy on them, stifle dis- comprises two groups of people: political sent, and interfere with personal freedom. appointees and civil-service employees. And there are still respectable commenta- Political appointees head the agencies and tors who see the military as a threat to po- fill their top ranks. Within this group, the litical independence.6 highest-ranked appointees must be con- But as we have seen, to lead the bureau- firmed by the Senate; lower-ranked posi- cracy, the president needs its trust, and tions can be filled by the president without maintaining the trust of the bureaucracy Senate approval. The president almost al- is in tension with national and party lead- ways selects political officials from the pool ership. Reagan was elected on a platform of personal and party loyalists. And these that railed against burdensome federal people expect to be rewarded for loyal ser- regulation, but he could not simply abol- vice with future promotions, access to the ish the bureaucracy. He needed it to un- president, and plum jobs outside of govern- wind some regulations while maintaining ment in think tanks and the private sector. others. Thus, he had to temper his criti-

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00395 by guest on 29 September 2021 Presidential cisms once in office while still trying to ap- norities combines with pervasive egalitar- Leadership & pease the antiregulatory wing of his party. ian resentment among the wider public– the Separation of Powers Obama campaigned on a platform calling that a great man (or woman) lords over for greater transparency of the bureaucra- all of us–to provide a checking power far cy, but has failed to follow through because more significant than the paper barriers of he needs the trust of officials who work for the Constitution. Day after day, the presi- him. In this case, Obama was willing to an- dent must labor to retain the public’s trust. ger his party in order to appease the bureaucracy, whose assistance he needed to The Madisonian system sought to pre- advance policies he cared about. vent government abuse by creating a set Leadership depends on trust, but people of competing institutions that check the tend to distrust those who exercise power ambitions of officeholders in each. The over them–the president above all. Pres- theory is that if no branch of government idential leadership is constrained by deep can dominate the government, then pow- egalitarian and antiauthoritarian norms er will never be concentrated enough to that constantly replenish the well of sus- threaten real harm. But we can also under- picion from which the public draws when stand this system in the light of the found- it evaluates presidential rhetoric and ac- ers’ fears about dominance by charismatic tion. The country was settled by dissent- leaders like Caesar or Cromwell. Most of ers, founded on revolution against a king, the individuals who operate the levers of and expanded by frontiersmen who con- power within the various branches would tributed to a national mythology of self- remain faceless cogs in the Madisonian reliance. While presidential leadership is wheelwork, while the handful of talent- acknowledged as necessary, the actions ed men who could distinguish themselves of the president and of contenders for the would never obtain a national following, or presidency are subject to relentless scru- at least not for long. The system was con- tiny. This level of scrutiny has increased structed so as to block the emergence of over the decades in tandem with the rise dominating leaders at the national level. of presidential power. Today, the president But Madison’s system failed because is stripped of all privacy, like the kings of it set up too many vetogates, rendering old whose bowel movements were exam- the federal government unable to func- ined by courtiers for signs of disease. Ev- tion effectively. It also underestimat- ery aspect of his private life (with a partial ed the unifying power of national lead- exception granted for his young children) ership. By the twentieth century, it was is considered a legitimate topic for media clear that Madison’s system made it im- scrutiny and public debate. This is meant possible for a national government to ef- not only to assure us that our trust in the fectively regulate the new national econ- president is not misplaced but, through his omy, to provide for social welfare, and to ritual humiliation, compensate us for our protect the country from foreign threats. subordination to him. This tendency is ev- Activist presidents with outstanding lead- erywhere, and the conspiracy theories that ership abilities dismantled the Madisoni- surround every president–in Obama’s an system piece by piece, paving the way case, centering on the question of wheth- for our current president-centered sys- er he was born outside this country and tem of national administration. Our con- is secretly a Muslim–is only an extreme temporary system heavily relies on the version of it. In the United States, conspir- magnetism, talent, and organization- acy-mongering by alienated political mi- al abilities of sitting presidents, who are

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endnotes 1 A representative example is Bruce Ackerman, The Decline and Fall of the American Republic (Cam- bridge, Mass.: Belknap Press of Harvard University Press, 2010). For an alternative view, see Eric A. Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (New York: Oxford University Press, 2011). 2 For purposes of this essay, I rely on the judgments about presidential greatness of historians, political scientists, journalists, and compilers of top-ten lists–and do not make my own. 3 William G. Howell, Power without Persuasion: The Politics of Direct Presidential Action (Princeton, N.J.: Princeton University Press, 2003). 4 In the presidential literature, an immense wave of speculation was triggered by Richard E. Neustadt, Presidential Power: The Politics of Leadership (New York: Wiley, 1960); see also Fred I. Greenstein, The Presidential Difference: Leadership Style from FDR to Clinton (New York: Martin Kessler Books, 2000); and George R. Goethals, “Presidential Leadership,” Annual Review of Psychology 56 (2005): 545–570. There are also thousands of books about the leadership qualities of CEOs, generals, and so on, which collectively manage to produce a small pile of cli- chés. See Barbara Kellerman’s essay in this volume for more on the growth of the leadership industry. 5 Stephen Skowronek, Presidential Leadership in Political Time: Reprise and Reappraisal, 2nd ed. (Law- rence: University Press of Kansas, 2011). 6 Ackerman, The Decline and Fall of the American Republic.

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