When John Yoo—a former Justice Department attorney known for writing legal memorandums on enhanced interrogation tactics—worries about executive overreach, you know things are truly getting serious. In a recent New York Times op-ed, Yoo argued that the Trump Administration was overstepping its bounds in pushing through several executive orders, among them the controversial immigration ban on seven Muslim-majority countries.
Yoo’s main claim to fame involves his authorship of the so-called torture memos during his tenure at the Justice Department. Unsurprisingly then, he has been a consistent advocate of the idea that the U.S. President has almost unlimited discretion over a vast array of policy issues. But even for Yoo, Donald Trump appears to be taking things too far.
Yet, when taking a step back, the Trump Administration’s conveyor belt of executive orders is but an extension of a general trend in American politics. Successive presidents have assumed greater and greater powers vis-à-vis Congress. In fact, that trend is one among many signs that the country’s governmental system is no longer adequate to actually govern effectively. The American presidential system no longer functions.
When it comes to political structure, the United States has always been something of an outlier. Most industrialized countries run parliamentary systems—think Westminster in the UK or the Bundestag in Germany. The crucial difference between parliamentary and presidential systems is the separation between the legislative and executive branches. In the former, these are interlocked to a certain degree, while in the latter, they constitute independent entities.
As political scientist Juan Linz laid out in his seminal 1990 paper, “The Perils of Presidentialism”, there are significant conceptual problems with presidential systems. Among these, the crucial aspect is political legitimacy. Linz explains that
“in a presidential system, the legislators, especially when they represent cohesive, disciplined parties that offer clear ideological and political alternatives, can also claim democratic legitimacy. This claim is thrown into high relief when a majority of the legislature represents a political option opposed to the one the president represents. Under such circumstances, who has the stronger claim to speak on behalf of the people: the president or the legislative majority that opposes his policies? Since both derive their power from the votes of the people in a free competition among well-defined alternatives, a conflict is always possible and at times may erupt dramatically.”
For the longest time, the U.S. has been able to escape these structural issues precisely because legislators have not represented cohesive and disciplined parties with clear ideological outlines. In fact, to the European eye, the two major American political parties hardly represented parties at all, but rather appeared as loose coalitions designed to capture voters. Yet, since the 1960s, the traditional underpinnings of the American party landscape have progressively eroded.
The civil rights era of the 1950s and 60s brought with it a process of ideological separation between Democrats and Republicans. In the U.S. Senate today, there is not a single Republican to the left of the most conservative Democrat. Due to the effects of gerrymandering and practically non-existent campaign finance restrictions, the effect has arguably been even more pronounced in the House. In addition, primaries ensure that politicians are often threatened most by ideological challengers from the left and right (but mostly the right) during election season.
The result is what we are currently seeing in American politics. The system was built precisely on the notion of checks and balances. Yet, these balances are what is producing the kind of gridlock and attrition that ultimately leads to a drift towards executive power. In the best of times, the same party controls both the White House and Congress. As we saw in 2009 with the passing of Obamacare, a lot of things can get done when that happens. But with two-year election cycles, the American norm is for divided government to predominate. It is no wonder, then, that paralysis takes hold in Washington. The product is a do-nothing legislature that attracts the ire of the electorate.
In this situation, the president will have an incentive to make policy by executive fiat in order to advance his (and someday her) agenda. But that is not a role that the White House has traditionally played. In any case, executive orders can only go so far. The Trump Administration has already rolled back a series of Obama era orders. If legislative stability is one of the hallmarks of a functioning democracy, this system is close to its antithesis.
In 2014, Francis Fukuyama wrote in Foreign Affairs that American politics is in decay. He explained that “political decay […] occurs when institutions fail to adapt to changing external circumstances, either out of intellectual rigidities or because of the power of incumbent elites to protect their positions and block change.” As a shorthand for the problems pestering the American political system, he coined the term vetocracy. In essence, there are too many choke points that nip legislative action in the bud. In addition to the split between Congress and the White House, there is the filibuster in the Senate. The states remain powerful, with their own (mostly bicameral) legislatures and state supreme courts. The archaic electoral college has meant that two out of the last three presidents actually lost the popular vote, while giving a handful of swing states massive electoral power.
The situation is not exactly helped by the fact that the U.S. tries to run a modern country on the basis of a 1789 constitution (albeit with a number of amendments). Here, massive conflicts are all but guaranteed. These occur perennially when constitutional originalists such as Clarence Thomas or the late Antonin Scalia—and indeed current Supreme Court nominee Neil Gorsuch—try to superimpose the original text of the constitution on contemporary political issues. It is hardly conceivable that the founders would have been able to foresee the nature of the current American political crisis. From their perspective, the fact that an overabundance of checks and balances would constitute the heart of the problem would have probably seemed outlandish.
But the United States is quickly finding out that its old revered institutions are coming apart at the seems precisely at a moment when long-held norms are also under threat. In fact, failing institutions and norm erosion might well be correlated.
Shortly before last year’s presidential election, Daron Acemoğlu wrote that American politics was in an iconoclastic phase, and that the “icons being targeted are the moral foundations of [American] democracy.” But another icon is the American system of government itself. If the U.S. constitution could be rewritten tomorrow, a set of 21st century founding fathers and mothers would be well advised to scrap the presidential system and put a parliamentary one in its stead. Of course, the structural problems dogging the United States would remain. Still, a more nimble and simple system would mean American government would no longer be part of the problem, but part of the solution.