imperfect union: the constitution didn't foresee divided

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Imperfect Union: The ConstitutionDidn't Foresee Divided GovernmentWatching the battle between Obama and a Republican Congress for two years may shakeAmericans' faith in the Framers.

Imperfect Union: The Constitution Didn't Foresee Divided Government - The Atlantic http://www.theatlantic.com/politics/archive/2014/11/what-the-founders-couldnt-have-kn...

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Benjamin Franklin (seated) in the National Constitution Center, Philadelphia

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RREELLAATTEEDD SSTTOORRYY

“The president is completely ignoring the will of the American voters, who turned out on Election Day andoverwhelmingly elected people who wanted to change the direction of the country,” Senator John Barrassoof Wyoming, chairman of the Senate Republican Policy Committee, complained Thursday to The New YorkTimes.

Barrasso is right. President Obama is ignoring “the will” of those who turned out to vote this month. In adifferent system, he would have already moved out of the White House, replaced by a leader chosen by theRepublican majorities in Congress. (For that matter, he would have been gone after his party took, in hiswords, a “shellacking” in 2010.)

Instead, however, he is president for two more years. When the voters were directly asked their “will” on histenure two years ago, they handed him a title deed to the White House good, under our Constitution, untilJanuary 2017. With that in hand, he has made clear that he plans to go forward with executive actions tofurther his agenda.

Already, since the election, he has signed an agreement with Chinasetting more strenuous goals for reducing carbon emissions. He haspromised to issue soon an executive order providing broaderprotections against deportation for undocumented immigrants—ineffect using executive authority to impose a limited form of thecomprehensive immigration reform the Senate passed but the Houserefused to enact. Signals from the White House suggest that other

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Is the U.S.-China Climate Pact as Big aDeal as It Seems?

executive initiatives may be in the works.

Is this an outrage, a defiance of democratic legitimacy? Is it a welcomesign of courageous presidential leadership? How does the coming duel

between legislative and executive branch fit into the design of our Constitution?

The answer to the last question is easy. What’s coming will be painful, frustrating, and dangerous—and itwill illustrate a constitutional malfunction unforeseen in 1787. The country will survive, and it’s possible itcan even make progress—but at tremendous cost in polarization and missed opportunity. The country is likea car driving with the handbrake on: Any movement forward will be accompanied by smoke and internaldamage.

So we might profitably put a six-month moratorium on paeans to the wisdom of the Framers. The problemof divided government is a bug, not a feature, and the Constitution itself provides no guidance on how towork around it.

Obama’s response may or may not be outrageous, but it is not novel. Remember 2006? If ever a midtermelection delivered a verdict about the “will of the voters,” it was that one. A single issue—the disastrous warin Iraq—dominated election rhetoric nationwide, and candidates who opposed the war won almosteverywhere.

President George W. Bush’s response? He escalated the war the people had just repudiated, with the “surge”of 20,000 new troops into Iraq and extended tours for those already there. That worked brilliantly, rescuingthe Baghdad government from imminent collapse—or, wait, it postponed inevitable failure long enough for


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it to land in Barack Obama’s lap in 2014.

Judging the answer is, mercifully, not part of my remit. But the example shows how, for better or worse, theConstitution created a government consisting of three high places—president, Congress, and SupremeCourt—and the lay of the land looks very different from each.

To Republican members of Congress, a sweeping electoral result like this month’s is the most importantthing in the world. They are legislators, and they think in terms of legislative control; in a sane system, theytend to think, they would be quoting the late Lord Shawcross of Friston, who (unwisely, as it turned out)celebrated the British Labour Party’s 1945 victory by telling Parliament, “We are the masters at themoment, and not only at the moment but for a very long time to come."

From the vantage point of a president—particularly a second-term president—the world looks different. Hehas two years left on an eight-year project. Congressional leaders are outraged that Obama proceeded withthe U.S.-China Joint Announcement on Climate Change during his long-scheduled trip to Beijing, despitethe election results. But the idea that a president would scrap months of talks—as part of a multilateralnegotiating process designed to last at least until 2015—because of a change in Senate control must seem,from the White House, not just wrong but (to quote the great Vizzini), inconceivable. Similarly, thepresident has a war to run and a wide variety of policy initiatives to steer through the bureaucracy for theremaining two years of his term; crimes to prosecute, secret counterterrorism operations to supervise,medals to present, etc. Congress, however hostile it may be, must seem largely irrelevant to much of hisday-to-day work.


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Had the Framers foreseen any of that, they mighthave made different choices.

I’m not taking one side against the other; I’m trying to illustrate a dangerous weakness of our system, onethat the Framers clearly did not foresee. Many of them believed there would not be political parties in thenew system. Others no doubt thought that the government they had designed would consist of a Congressthat met for a month or so every December and a president who would supervise a slumbering bureaucracythe rest of the year. Some of them assumed the president would be a passive figure, administeringdirections from Congress; others imagined a chief executive with some of the majesty of the king ofEngland.

I don’t think any of them anticipated that the two branches would ever clash over which represented “thewill of the voters.” The voters weren’t all that important in their design. The House was the only branchdirectly elected by voters. The Senate was picked by legislatures, the president by electors. Most of thembelieved the voters should be represented—a different thing entirely than being asked their “will.”

Today, however, the active consent of the people is commonly held to be the only true source of legitimacy;the two parties are hostile and polarized; and the day-to-day operations of government are vitally importantin terms both of foreign threats and of an integrated global economy.

Had the Framers foreseen any of that, they might have made different choices. Something closer to a


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parliamentary system would have been one option; it’s a much more common system than our own. Butthey might also have given Congress different terms, so that all members and the president would beselected at the same time. Two years is, by world standards, a very short legislative term; politics hasbecome a non-stop exercise. In addition, midterm elections that don’t directly affect executive power createthe danger of two antagonistic governments trying to fit into one capital.

But they didn’t foresee how the system might go awry, and so we have to do the best we can with what wehave.

The constitutional wisdom is that Congress has the ultimate weapon: the power of the purse. But to use theappropriations power well, Congress has to craft budgets the president will sign—or get two-thirds of thevotes in each House to override a veto. Neither is going to happen in the present atmosphere. The newcongressional leadership are not the masters; they're just players in a complex and dangerous game. Theironly real alternative is genuine negotiation with the White House, but a party that has spent six yearspretending Obama did not win two national elections is unlikely to want to negotiate with him now.

So we know what probably happens next: shutdown, perhaps default, and possibly impeachment. These arethe weapons of legislators too weak and divided to govern. The nation has been down this road before, andit doesn’t lead anywhere we want to go.

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How to Compete in the Global EconomySecretary of Commerce Penny Pritzker discusses how the U.S. will aim to navigate a more competitive and unpredictable globalmarketplace.

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GARRETT EPPS is a contributing editor for The Atlantic. He teaches constitutional law and creative writing for law students atthe University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.


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imperfect union: the constitution didn't foresee divided

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