How to save American democracy: end the Imperial Presidency

Concentrating power in the Executive branch endangers democracy. There is a better way.

Too much power has concentrated in the hands of the American President. It’s been a slow process, with different responsibilities being given to the President in different decades, but over the last century the Presidency has been transformed. The President was initially a relatively powerless functionary at the top of a limited republic, but nowadays they are more like the god-kings of the old time empires.

The responsibilities given to the President must be broken up and given to independent authorities. This idea should appeal to all Americans, whether they are on the left or the right. After all, everyone has a reason to fear a dictatorship. Those on the political Right often believe that President Biden has ordered his Justice Department to harass President Trump with false charges. Those on the political Left are worried that Trump may have used the Executive branch to attack his opponents. For instance, both James Comey (former director of the FBI) and Andrew McCabe (acting director of the FBI after Comey was fired) faced an IRS audit. This kind of audit is so rare, the chance those two were chosen randomly is unrealistic. It seems likely they were targeted.

Here is a simple solution: make the Justice Department an independent branch of government, outside of the control of the Presidency. As with the Supreme Court and the central bank (the Fed) the President can nominate people and the Senate can then vote to confirm or reject those people. If the Justice Department was overseen by a committee of 9 people, with one person confirmed each year, for a term of 9 years, then the appointees would have the independence of knowing that they will be in their positions for longer than any President. More so, at one person a year for a 9 year term, it would take 5 years to establish a majority on the committee. That would mean that an unpopular one-term President would never have appointed a majority of the committee. Only a popular two-term President would appoint a majority and even then the appointees would know they would outlast the President who appoints them. That would give them real independence.

The same could be done with the IRS. I’m sure we all want the tax authority to be independent and free of political influence.

This is the easy solution.

You can stop reading now, you’ve already got the summary.

The Supreme Court will not allow us to fix things the easy way

It’s so easy? However, establishing a separate branch of government goes against the USA Constitution. The Supreme Court has been strict about this. So the above solution would actually require a Constitutional amendment. And if we are going to pass a Constitutional amendment, we might want to solve the problem (of too much power in the Executive) in a general way. So let’s scope out the whole problem.

In several Western democracies, especially Britain and the USA, power has been shifting from the legislature to the executive branch, for more than a century. It’s been a source of concern for thoughtful commentators for several decades now.

Back in 1973 the historian Arthur M. Schlesinger published his book “The Imperial Presidency.”

Wikipedia offers this synopsis:

The book argues that throughout US history, the office of the president gradually appropriated authority exceeding that which was granted to the presidency by the Constitution, resulting in a concurrent erosion in congressional authority. The Imperial Presidency identifies a pattern of presidents during critical points in history setting policies and taking actions that were arguably the province of Congress, to be followed by a return to "normalcy" when the crisis had passed. Schlesinger presents James K. Polk's deployment of troops to the disputed area between Texas and Mexico, leading to the Mexican–American War, as the first example of a president exploiting the ambiguity of war-making powers in the Constitution. Another example he gives is Abraham Lincoln and his executive orders and actions during the American Civil War, such as the suspension of habeas corpus.

Even earlier, Friedrich Hayek had published his book “The Road To Serfdom” which touched on two issues. One, he was concerned that government was doing too much. But also, he pointed out that the growing complexity of government meant that the legislature increasingly had to surrender its power to the Executive branch, and he felt certain this would eventually lead to tyranny.

Up till now there have been enough countervailing forces to keep us from tipping over into autocracy, but the concentration of power in the Executive is worrisome. Any weakening of civil society would allow an all-powerful President to sabotage our democracy.

So how should we move power away from the President?

Wikipedia lists the departments that make up the Executive branch:

State

Treasury

Interior

Agriculture

Justice

Commerce

Labor

Defense

Health and Human Services

Housing and Urban Development

Transportation

Energy

Education

Veterans Affairs

Homeland Security

Do we need the President to have direct control over Transportation or Education or Labor? Of course not. What does the President absolutely have to do? Mostly foreign policy and war. So of these above departments, the only ones that need to stay with the President are the State and Defense departments. Everything else could be made an independent branch of government.

Even some of these departments can be further divided. Isn’t it dangerous to concentrate both the FBI and the U.S. Attorneys' Offices together in the Justice Department? Perhaps they should be split apart, so that investigations are handled by one group but prosecution is handled by a different group? Not just a different group, but an entirely separate branch of government? The more we pull apart these government organizations, the more we de-politicize the functioning of the government. And obviously, we do not want the FBI to have political bias, nor do we want prosecutors targeting people for political reasons.

Some libertarians will argue that we should focus on shrinking the government. Maybe that is true or maybe that is false, but that is not something I’ll discuss here. For this essay, I’m simply going to assume that the government will continue to get bigger and bigger, as it has reliably done so for the last 245 years. So my focus here is how we can protect democracy even as the government gets bigger and bigger. And increasing the number of branches of government, and then increasing the independence of every branch of government, is clearly the safest strategy going forward.

The history that gave us three branches of government

In the 1600s Britain had two revolutions, which together gave birth to the first modern liberal democracy. The historian Christopher Hill refers to this as “The Century Of Revolution.” Victory was finalized in 1688, a Bill Of Rights was passed in 1689, and the idea that the courts must be independent of the Crown was made official with the Act Of Settlement in 1706.

During the Enlightenment of the 1700s political commentators looked closely at the new British system, and they pulled some general rules from this history to create an abstract template for all democracies going forward. In 1748, Montesquieu published his book The Spirit Of Law, in which he invented the phrase “checks and balances” to describe how the different branches of government could balance each other, to ensure a free society. He insisted that there must be 3 branches of government: the judiciary, the legislative, and the executive.

In 1787, in the USA, Montesquieu’s book offered the template that shaped the new Constitution. So we have a Constitution that specifies 3 branches of government, and the Supreme Court has insisted that every part of the Federal government must belong to one of these 3 branches. It is because of this that we’ve seen more and more power accumulate in the hands of the President: there is nowhere else to put new functionality when the evolution of our society makes new functionality necessary.

But our society keeps getting more and more complex, and therefore our government must also become more and more complex. It is time for a constitutional amendment that makes explicit that we wish to have 20 or 30 or perhaps 100 independent branches of government. Such a splintering of power will protect us from the risk that someone like Donald Trump might try to abuse the power of the Executive to punish his political enemies.

Is this enough to protect American democracy?

Of course, there is no one trick that can keep democracy safe. Wojciech Sadurski has an interesting article the International Journal of Constitutional Law, called “Constitutional democracy in the time of elected authoritarians.” At first it seems like he is saying that the formal architecture of democracy cannot protect democracy if the public decides to elect autocrats who hate democracy. This is probably true — if the public decides it hates democracy, and if the public consistently elects autocrats who hate democracy, then democracy will come to an end and the architecture of the system won’t be enough to save it. And yet, in the middle of his essay, Sadurski admits that, when you start with a democracy, and then you elect autocrats, it takes many changes to the system before the democracy is undermined. That suggests that the architecture of democracy does matter, because we can increase the number of changes that an autocrat would have to make to consolidate their power, and as we increase the number of changes that would have to be made, we are increasing the amount of effort needed, so we are increasing the amount of time needed, so we are also slowing down the transition to autocracy, and so we are creating more time when the forces of democracy can fight back.

Sadurski wrote:

My thinking about the topic discussed in this paper is largely colored by my knowledge of, and experience with, democratic backsliding in Central and Eastern Europe (CEE): in particular, Poland and Hungary…. and Turkey.

There is a good reason why I pick on these three countries: these are three European cases in which authoritarian populists in power have actually succeeded in substantially undermining institutional structures in their democratic states.

...The fundamental starting point for reflecting on this phenomenon is that we are dealing here with authoritarianism that has—at its origins—democratic electoral legitimacy. ... As Anna Lührmann and Staffan I. Lindberg observe: “These elected officials erode democracy gradually by gaining control of media outlets, restricting civil society, and undermining the autonomy of election management bodies, among other tactics.”

The first such factor is that in these cases of democratic backsliding, changes have been incremental. For instance, in Poland, it took over a year for the authoritarian government to fully paralyze the constitutional court and turn it into an obedient follower of political will. Changes do not happen all at the same time, although they do overlap. There is a sequence that differs for each of the different institutions “dismantled” by authoritarians. As a result, we only know that a certain line has been crossed with the benefit of hindsight. There is no clear, identifiable turning point: a caesura between democracy and authoritarianism.

…The absence of this all-important turning point makes change less visible than in the case of a coup d’etat. Thus, it is difficult to mobilize people to protest against something which, by itself, does not seem to be so devastating to the democratic system. Our language—the language of liberal democrats outraged by these piecemeal changes—may seem often to be disproportionate and inflated in its critique.

The relative obscurity of democratic backsliding is magnified by the fact that the truly invidious effect is produced not by particular laws or actions, considered in isolation, but rather by how they interact with each other. It is the relationship between the different kinds of changes that truly erodes democracy, and it is the cumulative effect of various, seemingly disparate, changes that matters. For instance, in Poland, the truly invidious effect of the assault upon the judiciary could have been discerned only if one considered the cumulative effect of changes to the structures of the Supreme Court, of the ordinary courts, of the National Council of the Judiciary, and of the public prosecution offices. No new law, taken in isolation from the institutional context, can reveal the enormity of change that has occurred…

Taken separately, each of the legislative changes may seem innocuous enough, and our protests may sound exaggerated or even paranoiac. This is exploited by pro-authoritarian propaganda: to any of the changes, an equivalent may be found in unimpeachably democratic systems. But in those democratic systems, those features exist in a context that reduces their, possibly negative, effect. In contrast, under populist authoritarianism, context bolsters the antidemocratic effects of these changes.

This final part offers reason for hope: if we increase the independence of the different parts of the government, then we are also increasing the number of changes that a would-be autocrat would have to make to consolidate their power. And each one of these changes is a new fight, so each one of these changes grant the forces of democracy a chance to reassert themselves.

It is healthy if each branch of government serves for a different length of years

There is a final tweak we should consider, which was initially embedded in the USA Constitution of 1787, but which we’ve gotten away from, but the importance of which should be reconsidered. In the original Constitution, the public elected House Representatives but Senators were appointed by state governments. This changed in 1913 with the Seventeenth Amendment:

The Seventeenth Amendment (Amendment XVII) to the United States Constitution established the direct election of United States senators in each state. The amendment supersedes Article I, Section 3, Clauses 1 and 2 of the Constitution, under which senators were elected by state legislatures. It also alters the procedure for filling vacancies in the Senate, allowing for state legislatures to permit their governors to make temporary appointments until a special election can be held. The amendment was proposed by the 62nd Congress in 1912 and became part of the Constitution on April 8, 1913, on ratification by three-quarters (36) of the state legislatures.

This was done because the state governments were overrun with corruption, and so direct elections seemed like one way to escape from all of the corruption. This was long before the existence of the FBI. In the modern era, we have different agencies that can fight corruption.

Regarding the legislature, we do still have one idea held over from the original Constitution, which is that the different houses should serve for different lengths of time, two years in the House versus six years in the Senate, so they end up representing majorities from different years. Should the public fall into a panic over some emergency, the Senate can potentially limit the damage done by that panic. This is healthy.

But we should also consider that there was an advantage in the original idea, of having different groups appoint different parts of the government.

If traitors can’t trust each other, they are less likely to commit treason

Suppose some people in government want to commit a coup. Can they trust each other? Can the Navy trust the Army? Can the Army trust the FBI? Does the FBI trust the state police and state prosecutors? Will the DEA go along with a coup, or fight against it? If the reservists are called up, which side will they fight on? Or if they are not called up, will they volunteer to fight against the coup?

In short, the more groups you have, and the more differences you have between the groups, then the less likely you are to have a coup, because no one wants to be the one small group that calls for a coup, if everyone else is going to remain loyal to the old system. If you call for a coup, and the coup fails, then you will spend the rest of your life in jail, or perhaps you will end up dead. So no one wants to declare in favor of a coup unless they are sure they have the support of everyone. And getting that support is tricky, especially if we make the branches of government more independent of each other.

Here is another way to think of it. “Transitions from Authoritarian Rule” is a famous book that looks at authoritarian regimes and how they might transition to democracy. This raises the same difficulties as I just raised, although its looking at it from the other side, the difficulty of moving from autocracy to democracy, so here it is the reformers who are nervous, because they have to worry about a crack down from the hardliners. Again, change is difficult because it is difficult to coordinate every group:

Transitions from Authoritarian Rule

Tentative Conclusions about Uncertain Democracies, Vol 4

By Guillermo O’Donnell and Philippe C. Schmitter © 1986

Democracy institutionalizes uncertainty, not only with respect to the persons and groups who will occupy positions of authority, but also with respect to the uses to which authority will eventually be applied. In a sense, the transition to political democracy sets up the possibility of another transition. For the citizenship principle of equal treatment in matters affecting collective choices knows no intrinsic boundaries, except those set, at a given moment, by tradition, received wisdom, explicit agreement, or countervailing power.

…Typically, at the beginning of the transition the soft-liners within the regime have a strong hand in relation to the opposition, the more so to the degree that they feel successful in having attained past goals. Their ace in the hole is the threat that if the opposition refuses to play according to the rules they propose initially – usually a modest liberalization confined to individual rights and a restricted democratization with tight limits on participants and a narrow agenda of permissible policy issues – they will simply cancel the game and return to the authoritarian status quo ante. This tends to weaken and divide the proponents of further democratization.

Some activists will believe in the threat of a hardline coup and, preferring to avoid the worse outcome, agree to play the soft-liners’ game. Others prefer the risk of a showdown to accepting such a self-limited outcome. But, despite the initial strengths and intentions of the soft-liners their hand will eventually be recognized for the bluff that it has become. What forces the cards to the table is the growing evidence that, if a coup does indeed occur, the hard-liners will not only have to repress the regime’s opponents but will also have to overthrow the soft-liners within its ranks.

The factionalism of the regime is likely to increase to the point that the soft-liners come to recognize the interest they share with the opposition in avoiding a return to full-fledged authoritarian rule, even if the transition turns out to extend beyond the political forms and policy issues they initially tried to impose and limit. Moreover, by continuing with the transition, the soft-liners can keep alive the hope that they will eventually be able to control the process and protect their interests. (This is the other side of the uncertainty of democracy; it can lead to self-limiting, conservative outcomes as well as to expansive, progressive ones.) Furthermore, if the transition results in the implantation of democracy, the soft-liners will not only be protected from the accusations of treachery laid on them by the hard-liners, but also be rewarded by “history” for having led their country to an arguably more honorable future.

…When conflicts and “disorder” reach their zenith, the hard-liners’ worst fears may be confirmed, and their capacity to recruit “fence-straddlers” increases. Then the conditions seem favorable for the coup that would produce the feared authoritarian regression. This is when the soft-liners are forced, for the reasons already noted, to reveal their predominant interest in preventing such an outcome. On the other hand, the greater the mobilization and protest of the opposition, the more obvious to the promoters of the coup that more extensive and systematic repression will be necessary. This implies not merely returning to the status quo ante but to some very extreme version of authoritarian rule, in which, quite obviously, the soft-liners will lose their present position. The hard-liners may not have serious objections to applying the kind of repression that such authoritarian regression implies. But in order to do so, they and their would-be supporters need to count on the one element that the very existence of the soft-liners denies to them – a high degree of cohesion within the armed forces.

So this point should make clear, the more factions there are that would need to be coordinated to bring off a coup, the more unlikely the coup is. A democracy can use this fact to keep itself safe. This goes beyond what we normally mean when we speak of “checks and balances.” This is at a deeper level: not just different branches that can check one another, but so many branches that it becomes impossible for them to coordinate the sabotage of the whole system.

But there is a problem: if every branch of government is staffed by the same kinds of people, then they still might be able to coordinate, even if there are many branches. Suppose, for instance, that we have 100 branches of government, but all 100 branches are run by someone who went to Harvard university, so in fact every one of those different branches is staffed by people who know each other from school and who therefore have a shared cultural affinity. Then it still might be possible to organize a coup, even though there are a large number of groups that need to be coordinated.

So we need a final tweak to the system: the way the leadership of the different branches of government is appointed needs to vary. That is, we should want some different methods or processes for appointing people, or we should at least want the leadership of different branches of government to be serving different lengths of term.

As an example, people appointed to the committee that runs the Treasury could be appointed for a term of 4 years, while people appointed to the committee that runs the Justice department could be appointed for 9 years. That already creates some difference. The committee running the Treasury would represent a majority that existed 2 years ago, whereas the committee running the Justice department would represent a majority that existed 4 or 5 years ago. (Again assuming that one person is appointed each year.) Perhaps the DEA could have a 5 person committee appointed every 1 year, so it always represents the current majority. And perhaps every Senator could be granted 3 votes, with the top 5 vote getters winning a seat on the committee — this would ensure some representation from the minority. These simple ideas already gives us some differences, and since the mood of the country changes every year, and the mood in Congress changes every year, the kinds of people appointed to the committees would change every year. So long as we have some rules in place, to ensure that the leadership of each of these branches is out of sync with the leadership of any other branches, then it becomes more difficult for them to coordinate to organize a coup against the government.

We could invent more complex processes of appointing the leadership of the various branches. We could borrow the old idea that the state governments should directly appoint people to some branch of government. Perhaps the leadership of the Commerce department could be directly appointed by the state governments, just as the Senate once was. Having the states play a role would increase the kinds of differences that would show up in the leadership of these various branches, and such differences would be a positive thing.

Conclusion

In short, we can protect American democracy by pulling power away from the Executive branch. To do this, we will need to amend the Constitution. Most of the powers now given to the President can instead be set up as completely independent branches of government. Moving power away from the Executive branch would end the era of the Imperial Presidency. It would improve our system of checks and balances. And we can make this system even more secure if we ensure that all of the different branches of government are overseen by committees each of which is appointed by some different process, for a different length of time.

Finally, I think it would be useful to have a label for this particular idea, government designed as a series of independent branches (or segments) so I would borrow the Greek word for segment and suggest the word “demotemima" — a specific architecture for democracy that protects against autocracy by splitting the power across many branches of government.