Power Suit

Power Suit
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What makes the American model of government superior to most others is its elaborate web of checks and balances. Like a mobius strip, the chart of American government depicts three branches each extending an arrow of oversight towards the other two, creating a tightly interlocking network of watchmen being watched. No matter what one branch does, the others always have venues of recourse.

On paper, at least. In practice, alas, not all checks are equally balanced.

While no one disputes the blunt effectiveness of a president vetoing a bill of Congress, the Senate refusing to confirm a judge, or a judge rejecting an unconstitutional decision of the White House or legislature, Congress’ ability to reign in the executive has always proved the most daunting challenge.

A presidential veto can be overridden by Congress, but that requires the two-thirds approval of both chambers, something only possible in the case of legislation boasting enormous, bipartisan popularity, such as the 2008 Medicare funding bill unsuccessfully vetoed by George W. Bush, or President Clinton’s attempt a decade earlier to cancel popular military spending initiatives in a variety of districts held by politicians of both parties. In all, there have been less than 10 overrides in the past 20 years.

Then there’s impeachment, which though actually easier than overriding a veto — requiring, as it does, merely a two-thirds majority in the Senate and a simple majority in the House — has become perhaps the single most stigmatized provision of the US constitution. America’s long tradition of presidential stability has made even contemplating the removal of a president mid-term a taboo of enormous proportions, a fact only further complicated by the legacy of the Clinton years, which established something of a legal-cultural consensus that presidents only deserve to be unseated for serious criminal misdeeds, as opposed to merely moral or political ones.

To be sure, Congress can handicap a president. They can defund his pet projects, as Republicans are always threatening to do with Obamacare, or simply ignore his requests for action, as has been the case with… well, you name it. But as modern presidents have embraced an increasingly maximist understanding of their constitutional powers, the rising challenge for Congress has been the question of how to restrain  a president whose most objectionable decisions are made unilaterally.

Barack Obama has often interpreted his mandate in unusual ways. A common refrain, echoed most recently during his rose garden vow to “fix as much of our immigration system as I can on my own without Congress” is that the need to make policy supersedes the need to respect constitutional procedures for making it.

In the case of immigration, the President is tilling familiar ground. In 2012 he unilaterally declared a two-year amnesty (since extended to four) for the approximately 800,000 illegal immigrants who arrived in America as children. It was a move explicitly intended to compensate for Congress’ failure to pass the so-called Dream Act a year earlier, which promised similar legal relief for America’s inadvertent aliens. Where legislation failed, rule-by-fiat would succeed.

Selective enforcement of the law has likewise been the preferred Obama approach to drug policy. In 2009, Attorney General Holder declared the United States would not enforce federal drug legislation in states that had legalized marijuana for medicinal purposes, and in 2013 he expanded that blind spot to include states that legalized it for recreational use, too. The Justice Department has announced similar plans to stop prosecuting drug offenders when they deem the mandatory punishments excessively harsh. The underlying logic, apparently, is that laws should only be upheld to the extent they serve the President’s ideological ends.

Then there’s Obamacare, whose finer points were all implemented through executive action, most notably the imposition of the everyone-has-to-have-insurance-now deadline (Congress’ law said six months ago; the President says 2016), but also this whole business of forcing employers to cover morning-after birth control that the Supreme Court recently designated an unjust burden on corporate religious freedom.

In response to the administration’s handling of the Obamacare rollout in particular, Speaker John Boehner has announced he plans to sue the White House for unconstitutional behavior, namely a dereliction of the duties mandated by Article II, Section 3: “[The President] shall take Care that the Laws be faithfully executed…” Though what specific redresses the suit will seek have yet to be disclosed, an ideal ruling would presumably compel the administration to begin imposing the Obamacare insurance mandate right away — you know, like the law was supposed to.

Is this wise? The legal establishment seems skeptical. Asking the judicial branch to resolve a conflict between the executive and legislative has little precedent in American history, elevating, as it does, the courts to the status of supreme referee of intergovernmental jurisdictional disputes — itself a proposition of dubious constitutionalism. On the other hand, the more constitutionally orthodox prescription for a Congressional problems with a president — impeachment — seems not only absurdly radical, but politically suicidal. But still, you gotta do something.

President Obama’s Republican predecessor, of course, faced constant abuse of power criticisms of his own, though it’s worth noting that much of the Bush-bashing involved disputes over what is and isn’t within the president’s prerogative as “commander-in-chief,” one of the constitution’s most disputed phrases. In the end, Congressional Democrats elected to do little more than obstruct, complain, and run out the clock — a technique Republicans may ultimately have no choice but to emulate.

Term limits have always been controversial, but they remain the only long-term defense against an executive restrained by little else.


  1. Taylor

    This is why I like the French system, seems to accommodate cohabitation far better than the American one.

  2. Cicero

    Honestly, the Constitution probably places a bit too much power in the hands of the executive via the veto power (which can be used to effectively hamstring a substantial majority in Congress). As you noted, veto overrides are pretty rare…though to be fair, Bush's refusal to veto anything for many years (his first veto was in July 2006, his second in May 2007) played a role here. One thing that gets forgotten is that if a President's party controls at least one house of Congress, a lot of legislation the President would veto usually just dies.

    The other issue as of late has been the "signing statement", which has been used by both Bush and Obama to try and work around laws they don't like. In that context (there are some other contexts, such as dealing with overly vague laws) they need to be struck down.

    As to selective enforcement of the law, I think the marijuana law and the immigration law have two key differences:
    (1) The marijuana law has been faced with increasing opposition at the local/state level while the immigration law does not seem to have been.
    (2) As a result of #1, the marijuana law was likely to be subject to increasingly sporadic and selective enforcement. The immigration law seems to have no such issues, except as brought on by the administration.

    Basically…the marijuana law was increasingly being flouted by state and local governments and not being enforced below the federal level. This was leading to a situation wherein the Feds would be stuck enforcing the law…and expecting the Feds to enforce the law in, say, Colorado and Washington (where it is increasingly like that, were they to go in, they wouldn't even have the support of local LE) seems like an increasing stretch…so you would have, at most, the

    To put it another way, you could at least make a case that the Feds were deferring to the state/local authorities if not to the outright unenforcability (with the number of states flouting the federal ban, the marijuana law was probably slowly drifting the way of the 55 MPH speed limit). The immigration situation is, if anything, the reverse…I rather suspect that Rick Perry would be just as happy to order all of the teenagers that ICE or the Border Patrol is stuck babysitting be deported.

    Frankly, the founders of the US probably flubbed in setting checks on the executive, if only because of a lack of extreme foresight as to what the world would look like 150-200 years later. If I'm not mistaken, Congress today has more staff than the entire Federal Government did in 1790, and if the government had shut down in the late 18th century it might have taken a few months for most people to notice (and longer than that so long as the military was still being paid). The executive was long held in check by a sheer lack of relevance in daily life combined with a comparative consensus (all things considered) during the Cold War: Nobody was about to shut the government down with troops in Vietnam, and the ideological lines were much more of a tangle between WW2 and the 1980s. The last time there was a risk of this sort of a fight, we'd be looking at the 1920s and before…and at a far smaller government.


    By the way, there is precedent for the judiciary acting as a referee between the other branches' powers. There were a number of cases on this up through the 1930s (which ultimately generally resolved in favor of Congress being able to cede a lot of power to the executive).

    The problem, ultimately, is that there's a wide swathe of territory (between a "Presidential Majority" in Congress and an "Opposition Majority" of around 2/3 in Congress) where things deadlock pretty badly. I have been told that this is a "feature" and not a "bug", so to speak; at this point, I'm inclined to say that it is, at best, a feature that became a bug. It is probably the Clippit of government.

    Of course, if one party had control of Congress and the other the executive, things would be comparatively straightforward (and you'd probably eventually see some sort of forced compromise since the alternative would be for piles of bills to get vetoed). With Congress also jammed up…well, let's just say that the process is absurdly buggy right now. The main problem is that unlike in a large number of political systems out there, the US system has no real way to actually break a continual deadlock.

  3. Taylor

    To echo a few of your thoughts:

    Playing into this is the personality dynamic….the President is the President, the straw that stirs the drink. Boehner, Reid, Pelosi, and McConnell are important to partisans and wonks, but don't register to the vast majority of voters. Not only are they lower on the totem poll, they're divided within congress as you discuss, so they only have power over 1/6 of the machinery, with little whip authority over their own caucuses aside from committee assignments.

    That, and also core responsibilities in any three branch system: Legislative makes law, Executive enforces. Enforcement takes many different forms and has to be done 24/7, while laws don't really have to be made at all and are pretty straight forward. This gives the executive far more leeway and deference when ambiguity arises.

    To bring to my initial point, this is why I like the French system: With joint responsibility for the Cabinet, the legislature gets some "skin in the game," meaning obstructionism by either side looks awful and impacts both.

  4. Jake_Ackers

    The Obama administration has fought for immigration to be solely on a federal law. So it is his responsibility. He failed on his own terms. If the federal gov't spends weed enforcement back to the states, most states simply won't enforce it. Because it is not THAT illegal.

  5. Iokobos

    " If I'm not mistaken, Congress today has more staff than the entire Federal Government did in 1790, and if the government had shut down in the late 18th century it might have taken a few months for most people to notice (and longer than that so long as the military was still being paid). "

    The entire federal government in the 1920's was smaller than the state government of Rhode Island, then the New Deal exploded the bureaucracy.

    Then the Congress of the 70's began to cede legislative power to the bureaucratic '4th pillar' of power – something that does not have a Constitutional check to its power and is not directly accountable to the citizens.

    It's a clusterf*ck that can only be fixed by people with integrity to stand up and reel in bad decisions from the past. As we have seen, integrity is not historically a high priority to the political class.

  6. Bob

    In fairness, veto overrides are mostly rare because the president won't generally bother to veto anything that passed with anything close to the votes required to override. Essentially, the power is limited to closely-contested bills and is in practical terms closer to the VP having a tie-breaker vote in the senate than some sort of ultimate power over legislation.

    Most things congress does, historically, DO have overwhelming majority support and aren't really subject to the procedure.

    Line-item veto is a bit dodgier (and it's actually a bit of an open question whether it's actually legal, with the practice only continuing because everyone has sort of stubbornly refused to actually ask in the appropriate venue, like with congress and blocking appointments with pro forma sessions).

  7. Devil Child

    I don't really think term limits are necessary towards good governance, nor are they even terribly effective as tools of political restraint. China and Mexico have incredibly strict term limits, and they're both dictatorships under Communist and PRI rules respectively. Meanwhile, nations like Germany and the UK are both strong democracies with no term limits. Their best leaders often held power for very long periods.

    As long as people have the power to make a difference in the political process, term limits shouldn't be necessary.

  8. Cicero

    The key is that the PRI and China used those term limits to restrict ossification at the top (i.e. keeping power moving around enough that one side of the party wouldn't lock out the others indefinitely).

  9. Jake_Ackers

    Political apathy. Only really really bad politicians get voted out. But incompetent ones manage to stay. That is why Congress gets reelected so often.

  10. Devil Child

    People vote for their representatives to stay in forever to improve their seniority and give them more power in getting shit through the impenetrable, existential nightmare that is federal bureaucracy.

    Take Charlie Rangel. He's clearly not fit to be involved in any part of society other than a retirement home, but he gets voted in every two years anyway, and usually by a pretty large margin. The reason? His seniority allows him to provide more federal benefits and attention to Harlem than would be provided by a replacement with no clout. Much as we Americans mock Harlem for prizing this point over kicking that bumbling geriatric out, I voted the same way quite often in my hometown for my federal officials, and so have millions of others.

    Eliminating term limits doesn't suddenly make politicians more willing to act, it just makes national bureaucracy that much more impenetrable.

  11. Rachel

    There's a potential difference, too. Executive term limits can curb the tendency to become Leader For Life. Legislative term limits curb legislator experience, throwing influence to lobbyists or bureaucrats instead.

    IIRC Mexico has term limits everywhere; presidents can't be elected at all, while legislators can't have consecutive terms. So the whole legislature turns over every election. The president can't become a life ruler, but Congress isn't an effective check, either.

  12. Trenacker

    Failure to enforce the law because it doesn't conform to one's ideological preferences is indeed very serious. This is true whether or not the impetus for Bohener's lawsuit is simple partisanship — an attempt to force the President to implement an unpopular mandate for the simple sake of negatively impacting his popularity in anticipation of mid-term elections.

    The major mitigating factor here is that Obama is simply providing a rationale, however unconstitutional, for a behavior — selective enforcement — that executive agencies at every level of government engage in on a regular basis. In an environment characterized by limited resources, some missions naturally take priority over others.

  13. Jake_Ackers

    On your last point. Obama is doing the same thing though. He is selectively enforcing what laws he wants. Not because of money but because of politics. Obama fought for immigration to be solely a federal issue. And he now won't enforce it. He failed by his own measure.

    The power of Congress to not fund something is not really a power. Its a side effect of our systems. And i find it wrong too. Unless the act was taken without Congress approval. IE Bosnia.

    Nixon didn't want to enforce desegregation. Not wanting to enforce laws against marijuana is one thing. Or laws that interstate transportation of alcohol is illegal. But not wanting to enforce a law that is popular and a strict part of protecting our nation, means he is not being an executive.

    Obama isn't just not deporting illegals who crossed the border this morning. He is not securing it and encouraging more of it. Obama likes to point to Lincoln a lot. Yet Lincoln enforced the Fugitive Slave Act. If you pick and choose what law you want to enforce, whether it be Republicans or Democrats it pretty much becomes anarchy.

  14. Trenacker

    That's what I'm saying. While I understand Obama's rationale — and even agree with it — Boehner has the stronger argument. It's unfortunate that Boehner is merely wearing his conviction as a fig leaf in an attempt to distract from what appear to be purely partisan objectives.

    The issue is that Obama has straightforwardly admitted that he has a rationale for non-enforcement rather than allowing us to presume that the federal government is merely over-stretched.

    Obama is taking action to secure the border. It isn't nearly as simple as building a big fence and daring people to run across. Remember also that different people have different levels of perception regarding the threat posed by illegal immigration, just as they do about the importance of high levels of defense spending. Liberals worry less about illegal immigration both as a criminal act and as an economic issue. If anything, liberals are prone to see illegal immigrants as a source of willing labor for jobs that American workers won't take on principle. Conservatives are more likely to worry about the drain on the public purse, the danger of trans-national criminal activity, and wage deflation. You see it, too, I think, in Obama's approach to defense spending: like most liberals, Obama believes that the American military is already so large that the deterrent will be maintained even if we make deep cuts and focus on other spending priorities. He doesn't equate current crises with the diminution of American power; rather, they are manifestations of the frustrating tendency of marginal overseas interests to pull us into largely insignificant pissing contests.

  15. Jake_Ackers

    Yah I know you agreed. But you did make a good point. Obama just doesn't view illegal immigration as a problem.

    Democrats also view them at 15 million new voters especially in places like Texas. And Republicans view them as 15mil more people to work in less than minimum wage jobs.

    Ron Paul always made a good point. You can cut military spending without cutting defense spending. Although frankly shouldn't Libs want military spending if they believe gov't spending spurs the economy on?

  16. Trenacker

    I don't think that most Democrats view illegal immigrants as potential voters. Many, I am sure, believe that the manner in which Republicans present the issue of illegal immigration is sure to alienate Latino citizens, however. For Democrats, this is mostly a social justice issue. Both parties are often guilty of assuming that all Latino voters are pro-amnesty.

    Even if they are sympathetic to Keynes's argument that private businesses can behave in an economically inefficient manner, there are very few Democrats who still believe in the prescriptive solutions recommended by Keynesian economics (i.e., that stimulus spending as a natural role of liberal government). In fact, they are probably outnumbered by Republicans who see defense spending as economically beneficial.

  17. Rachel

    Unfortunately; Keynesian analysis has been massively vindicated in the crisis. We'd be much better off if Obama and Congress actually believed Keynes with more than tepid lip service.

  18. Rachel

    "Although frankly shouldn't Libs want military spending if they believe gov't spending spurs the economy on?"

    Not if there's *better* spending for the government to be spending on. While any spending can have a stimulus effect in a liquidity trap — thus the example of burying barrels of money, to be dug up again — it's better for the spending, and the labor it represents, to be doing something useful as well. Infrastructure and clean power and homes beat making weapons, let alone digging up buried money.

  19. Guest

    It's not just mitigation. The whole point of the executive is to make immediate decisions about how to use the powers of the state, including what to do when the demands placed on the state are potentially contradictory or impossible.

    The legislature can demand what it likes, and as you rightly point out, sometimes the executive must pick which bits of work to focus limited resources on and how to interpret its mandate. That's always a political choice.

    If the legislature disagrees with that political choice, it can kick the executive out. Individuals also have judicial recourse in certain situations, typically where they can show they have been harmed by the failure of the executive to follow a law. The judiciary is the final arbiter of whether the law has been acceptably interpreted, but (in the US at least) will only arbitrate on actual cases where the deciding factor is the interpretation, not on disagreements of opinion (or cases which can be settled without establishing the interpretation).

    It sounds like this suit threat is not an individual seeking redress, but someone who's annoyed that the legislature doesn't want to recall the executive over it, and asking the judiciary to do something to the executive instead.

  20. Jake_Ackers

    This is why I think the executive should be divided into two seats like most countries. The Prime Executive would be like a directly elected Prime Minister. Or simply chosen by both the House and Senate or just be the Speaker. Either way the Prime Executive should handle domestic economic policy. Two terms of four years. Cannot be removed unless impeached due to some gross misconduct/treason, etc. Much like the President can only be impeached do to some misconduct/treason, etc

    And the Chief Executive should be a former Ambassador or General or some former Secretary who governs for a five years, limited to one term. Or do like Virginia and you can come back but not in nonconsecutive terms. A nonpartisan person who would simply handle the military and security and foreign policy. So Congress passes a law and he/she has to simply enforce it. Much like the President is suppose to do. Although the Chief Executive is appointed they cannot be removed unless they do some misconduct/treason, etc or completely violating the law. IE can illegal war.

    This way the Chief has time and leeway to enforce the laws and win a war. But cannot simply go to war with direct order from Congress. If the Chief does, IE Korea, Vietnam, Bosnia or even something legitimately in self defense Congress can choose to let the person operate or remove them.

    Moreover, the Prime focuses solely on domestic and economic issues. This way what should be democratic (domestic and economic issues) are handled by politicians. And foreign policy and security handled by, for a lack of better word, professional/experienced officials who don't really care about politics. As the Chiefs are appointed and only have one term.

    I know it's a pipe dream but oh well.

  21. Devil Child

    This is a gross misinterpretation. Most countries that have this kind of system don't have term limits, and one of the positions is essentially a figurehead position anyway.

    Hell, historically, this kind of system only causes bigger disasters than ever when one of the parties [i]isn't[/i] a figurehead. It happened in Imperial Germany and Imperial Japan. Both sides just tend to end up in dick waiving contests against each other, and endless power jockeying until a bunch of people end up dead and the system finally collapses. Even the horrors of the Congo Free State can be traced almost directly to King Leopold's quest to compensate for his limited power at home with his large amount of power granted to him over his colony.

  22. Jake_Ackers

    You used examples of were there is no direct democratic appoint process for those executives or even indirect. The Chief Executive would serve at the pleasure of Congress. Congress could remove them if they do not enforce the law, so impeach would be easier.

    Maybe I didn't explain it right. Pretty much the Chief Executive would be the Sec of State and Def in one but Congress would get to put or remove them. Today, the President can request if the Sec of State or Def to resign if he thinks they are doing a bad job.

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  28. Guest

    What you haven't mentioned is the apparent power that a minority in the legislature has to block majority bills (even though the filibuster name has gone from the site, surely you remember?). Although not consistently exercised, this threat seems to have increasingly resulted in proposals failing to be proposed.

    Surely this is partly behind Obama's executive zeal. Maybe he took a leaf out of Harper's book – http://www.jjmccullough.com/index.php/2010/01/27/… – he wants to get things done and (more now) leave a legacy and the legislature is too deadlocked to either help him or stop him.

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