Is the Constitution Outdated?

Like all presidential candidates, Trump promised big things during his ascent to the presidency, and like all new presidents, he has found that turning those promises into legislative action is difficult. Even with majorities in both houses of Congress, Republicans have moved slowly to take action on the Trump agenda. They have moved slowly in spite of the fact that the Trump agenda largely aligns with their own agenda, and despite technically having the votes to get to work on passing those agendas. Many observers, including me, have expressed surprise at the reticence being shown by Congress. We shouldn’t have been surprised, because this is an old tale. Congress, preoccupied with satisfying the parochial concerns of their individual members, fearful of running afoul of special interest groups, and ever conscious of upcoming elections, simply lacks the capacity to take on bold programs with any sort of speed. This is the system we have, and, even with the advantage of unified government, the system doesn’t change all that much from administration to administration.

The system is the way it is, because the Constitution puts the majority of governing authority in the hands of Congress. We tend to hold it as an article of faith that the Constitution is good, and that it set forth a system that works reasonably well when it comes to handling pressing national issues. But if the system set up by the Constitution works, then why the rampant dysfunction? Republicans believe Obamacare is a disaster that needs to be fixed quickly. So why don’t they? If it’s a pressing national issue, the majority of Congress agrees on what needs to be done, and the President agrees with those majorities, then why can’t they get it together and do it? Why is there any doubt at all that they will actually be able to get it done?

relicIn Relic: How Our Constitution Undermines Effective Government – and Why We Need a More Powerful Presidency, William Howell and Terry Moe argue persuasively, that the problem is the Constitution itself. The document set up a system that, rather predictably, is ill-equipped to meet the problems facing the nation:

The Constitution is a relic of the past. It was devised by the founders some 225 years ago for a simple agrarian society, and the form of government they settled upon, a separation-of-powers system with parochial Congress at its center, was perhaps appropriate for their times. But it is not appropriate for our times. It is grossly out of sync with the requirements of modern society and egregiously incapable of dealing with the formidable array of serious social problems that arise in the modern era.

The fundamental flaw, according to Howell and Moe, is the centrality of Congress in lawmaking. “Congress, whichever party sits in control,” they write, “is a bastion of special interests, favoritism, and localism.” Using a number of familiar examples they show how Congress has repeatedly failed to address pressing national issues in an effective way. Laws that need to be fixed or repealed stay on the books for decades, issues that need to be dealt with go unaddressed, and issues that are addressed are confronted in ineffective and unsatisfactory ways. This isn’t because the lawmakers in Congress are incompetent, but because the system of incentives surrounding them pushes them away from taking on national issues with an eye to the national good. They are concerned instead with delivering goods to their districts or states, and with stay on the right side of the special interest groups that help keep them afloat. They do not look at national issues and come up with solutions that are good for the nation as a whole, and they shouldn’t be expected to.

The President, on the other hand, does look at national issues with a mind toward nationally-oriented solutions. It is what they are elected to do. They consider long-term problems, because they are concerned with their legacies. Modern presidents have again and again shouldered the initiative to craft big, ambitious solutions to big, thorny problems. Again and again they have seen their efforts go to waste in Congress. Howell and Moe argue that something has to change if we are to expect our government to get anything of substance done.

Howell and Moe offer as a solution a simple change should be made to the Constitution, through an amendment, allowing the President to exercise the power he currently possesses over trade agreements in normal legislation. Under the proposal, the President would have the power to send legislation to Congress, where they would have a set amount of time – 90 days, say – to debate the legislation and then give it an up or down vote on majoritarian lines. If they do not take action, the bill becomes law. Congress would still have the power to send their own legislation to the President, but the President would not have to wait for Congress to initiate his agenda.  

I read this book with an eye on current events. I can see the upside of having a more powerful presidency, and I agree that Congress is constitutionally incapable of solving our national problems in a satisfactory way. But what happens when our nation elects a man like Donald Trump to high office? What happens when we elect a manifestly unfit demagogue the office? What happens when we have a Congress unwilling to say no to the President?

Under Howell and Moe’s proposal, President Trump would have come into office, and more or less immediately gotten large swaths of his program through Congress. We would, at this point, be waiting for the up or down vote. Rather than signing a flurry of executive orders, Trump would have sent a number of bills to Congress, and many of them, I suspect, would have already gone through. With that scenario in mind, it is a great source of comfort to me that Congress is the way it is, and that the President is not the chief legislature.

I think that, on the merits, the argument makes a great deal of sense, and that, over time, it would yield better outcomes than our current system. It would not be perfect, of course. We have had, and will have in the future bad presidents. Presidents will always make mistakes. It also isn’t clear that if the locus of legislative power shifted to the presidency, all of the problems with congressional centrality would go away. It’s easy to imagine special interests and parochial concerns still finding ways to influence legislation. Even so, I think the most persuasive counter-argument to Howell and Moe is simply, what safeguards are there when the President is not simply bad, but dangerous? They don’t address this point at all, though if they had, I imagine their answer would have been unsatisfactory, because, like many of us, I do not think they seriously considered the possibility of a man like Trump actually winning a national election. It didn’t seem possible, even in America.

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