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Presidential Leadership & the Separation of Powers

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Presidential Leadership & the Separation of Powers 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 de- cades, legal scholars have ignored it. Legal schol- ars rarely discuss “leadership”–of the president or anyone else. They are concerned with the legal con- straints 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 uni- versally 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. © 2016 by the American Academy of Arts & Sciences doi:10.1162/DAED_ a_00395 35 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- 36 Dædalus, the Journal of the American Academy of Arts & Sciences 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.
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