The institution of the presidency poses a number of serious problems for our democracy. The most obvious one is that the president may be the loser of the popular vote. This glaring shortcoming of the Electoral College is the subject of another article on this site. Here we will be concerned with a whole different set of democratic problems that afflict the presidency and undermine American democracy:  the tendency for the enormous powers of this office to be abused and the difficulty in holding a president accountable to the people.

The abuses of presidential power that took place during the administration of Donald Trump raised an alarm for a number of Americans.  Various presidential actions were seen as a threat to basic democratic principles, including the rule of law, free speech, freedom of the press, and rights to privacy.  And his abuses of power culminated in his urging a violent mob to storm the U.S. Capital building. But many drew the wrong conclusion for all of this: they saw the problem as Trump.  In fact, undemocratic tendencies are built into the nature of the presidency itself – and there is a history of previous presidents succumbing to the temptations of the loosely checked power of this institution. Trump was simply an extreme example.  A chief executive office with so much unbridled power is in fact peculiar to the American political system.  Chief executives in other democracies typically have less individual power and there are more ways to rein in their actions. We would be better off in the United States if the same were true here.

Prime Minister: The Most Popular Choice for Chief Executive

Most other advanced Western democracies don’t have separately elected presidents.  They use parliamentary systems where the executive is the prime minister elected by the parliament.  The office of prime minister is very different from our chief executive. For one thing, parliamentary systems have no strict separation of powers between the executive and legislative branches. Instead, there is an overlap.  The prime minister is directly accountable to parliament and appoints his or her cabinet ministers from that body.  On the other hand, it is the prime minister who, in consultation with the party leaders, set the legislative agenda.  The closeness of the parliament and prime minister is exemplified by the practice of “Question Time” in Great Britain. Every Wednesday at noon, the prime minister shows up to parliament to answer questions – a practice that is hard to imagine for American presidents. In general, the office of prime minister is a more collegial and cooperative institution than the presidency – and, as we will see, it is not prone to the same problems.

In the Beginning . . . a Weak Presidency

Quick – name five presidents from the 19^th century. If you are like most Americans, you would probably struggle to name more than Andrew Jackson and Abraham Lincoln.  That is because this was the century of weak presidents – with few of them being “great” or “memorable.”  But this was in fact what the founding fathers intended.  They saw Congress, not the presidency, as the most powerful branch – and gave to it almost all the important powers: to pass laws, levy taxes, and declare war. The role of the president was primarily administrative: to implement the laws. In Madison’s words, “in republican government, the legislative authority necessarily dominates.”  And for over a century, it did.

So how did we get to the point where the president is the most powerful person in American – where we are now concerned about an “imperial presidency” whose power is enormous and ripe for potential abuse?  The answer lies in two developments in the 20^th century. First was the rise of the U.S. as a leading global economic and military power after World War II.  Particularly concerning to many has been the growth of the president’s unchecked authority to use the military and the intelligence services. For example, there is a long history of secret CIA interventions in the politics of other countries, particularly in Central and South America. More recently, the CIA was involved in the abuses of prisoners in the Abu Ghraib prison, and the National Security Agency was caught spying on the personal communications of millions of Americans. By their very nature, the covert activities authorized by presidents are difficult to control by Congress or the public.

Many presidents, both Republican and Democratic, have also been unable to resist the military power at their disposal. They have pursued numerous overt military interventions in other countries – all without any formal declaration of war by Congress. In the past, these have included Vietnam, Grenada, Panama, and Bosnia.  President George W. Bush acted unilaterally to commit troops to long wars in Afghanistan and Iraq.  President Obama came under criticism for endorsing the controversial use of drones in Afghanistan and other countries, and for his authorization of airstrikes in Syria. More recently, President Trump unilaterally authorized the military assassination of one of the highest officials in Iran – bringing the U.S. to the very brink of war with that country. The power to use military force – the de facto power to declare war – has now migrated from Congress to the presidency.

The Growth of Presidential Powers: The Rise of the Administrative State

The second development that dramatically increased presidential powers was the emergence and growth of the administrative state. The size and scope of the administrative branch grew throughout the 20^th century, with the creation of numerous regulatory agencies and the increasing number of social welfare programs, such as Social Security, Medicare, and Medicaid.  Importantly, the administrative branch grew because the public demanded it and Congress passed regulatory and social welfare programs in response to this – it was not because presidents were trying to increase their own power.  But it had this effect – as the administrative state grew, so too did the domestic political powers of the presidency.

One obvious example of this is the use of executive orders, which grew tremendously starting in the early 20^th century. These are directives to the federal bureaucracy that have the binding force of law – and often are attempts to impose policies that are not supported by Congress.  Frustrated by a Republican Congress, President Obama relied heavily on executive orders to implement his liberal policy visions in areas like immigration, climate change, minimum wage, and gun control. Not surprisingly, President Trump reversed many of Obama’s executive orders immediately upon coming into office – and then began to issue a flurry of his own.  Many of these were controversial and not supported by Congress – such as the orders to ban travelers from some Muslim countries, undermine the Affordable Care Act, restrict immigration, build a border wall with Mexico, and limit the powers of federal employee unions.

Executive orders, with their public signing ceremonies, often get a lot of attention. However, there is another, more mundane, form of administrative power that probably has a much larger overall impact on public policy and the American public: the rule-making power of federal bureaucracies. In many cases, after bills pass Congress, they are then passed on to the appropriate federal bureaucracy tasked with developing the specific rules about how to implement and enforce that law.  The rules can have a large impact on how effective the law turns out to be. And these decisions are made largely out of the public eye by bureaucrats under orders from presidential appointees.

To see how powerfully this rule-making ability is in affecting public policy, we need only look at the Trump administration’s efforts to rewrite and weaken environmental rules or to even repeal them outright.  He’s done more to undermine environmental rules than any president.  By May of 2020, the Trump administration had unilaterally weakened or repealed:

• 19 rules reducing air pollution, and was in the process of rolling back 8 more.
• 11 rules limiting oil drilling and coal mining and reducing their polluting effects and dangers posed to fish and wildlife. In process of rolling back 8 more.
• 11 rules stipulating environmental requirements for federal projects. In process of rolling back 1 more.
• 9 rules protecting endangered animals and wildlife. In process of rolling back 3 more.
• 6 rules regulating pesticides and toxic substances. In process of rolling back 2 more.
• 4 rules reducing water pollution. In process of rolling back 7 more.
• 5 more rollbacks in other environmental areas, with 6 more in process.

All of this was done without the explicit approval of Congress and against the wishes of most Americans, who would like to see more environmental protection, not less, from the federal government.  And the same thing has been going on in many policy areas.  For example, in 2019 the Trump administration weakened the food stamp program by changing rules so that 700,000 poor Americans would no longer receive this benefit.  These kinds of dramatic changes in public policy are all being done on the say-so of one person – in this case, a person who actually lost the popular vote for president.  Not how democracy is supposed to work.

The Abuse of the Veto

The veto is another presidential power that is being abused.  Today we see the frequent threat and use of the veto as being business as usual in Washington politics.  But again, the framers of the Constitution had a very different view.  They assumed that the veto would be an extraordinary act.  It was seen as a very serious thing to overturn legislation passed by a Congress, a body that represented the will of the people.  They thought it would be used rarely, and primarily to block Congressional bills that were considered to be unconstitutional – such as a bill that interfered with free speech.  In the 18^th and 19^th centuries, presidential vetoes were not that common and mostly invoked on constitutional grounds.  The first fifteen presidents, from President Washington through President Lincoln, issued 59 vetoes. More recently, eight presidents, from Nixon through Obama, issued 322.

Beyond this huge increase, what is worrisome is that it is now common to use the veto simply on policy grounds – because the president disagrees with Congress over a particular policy – and not on more fundamental constitutional grounds.  Many see this as anti-democratic because it is a form of minority rule where one person is able to frustrate the will of the majority as expressed through Congress. Some defend the veto as being an important part of the checks and balance system.  But as we’ve seen elsewhere, checks and balances are responsible for creating the persistent gridlock that afflicts our federal government and prevents us from addressing many serious social, economic and environmental problems. Vetoes often contribute to making the political system less responsive to the desires of its citizens – and thus less democratic.

The Abuse of Signing Statements

A more recent problem with presidential power is the misuse of “signing statements.” Originally, these statements were relatively innocuous documents issued by presidents when signing a bill into law.  They commented on the purpose of the law, how it would be applied, what the president liked or disliked about the law, and so on. These statements did not become controversial until the administration of George W. Bush, who began to frequently use these statements to avoid implementing parts of laws that he disagreed with. He declared over 1,000 provisions of 160 laws to be unconstitutional and refused to obey or enforce them. For example, he refused to implement part of a statute that would have required military prison guards to obey the Geneva Convention.  In essence, Bush turned signing statements into line-item vetoes that Congress could not override.  A report by the American Bar Association condemned this use of signing statements as “contrary to the rule of law and our constitutional systems of separation of powers.”

Prime Ministers Don’t Need Vetoes or Signing Statements

The undemocratic nature of the increasing use of vetoes and signing statements is avoided in countries with prime ministers.  For one thing, PMs are elected by parliament, so it is impossible for them to come from a different party than the one that controls the legislature – a built-in conflict so common in American politics.  In addition, prime ministers develop legislation in consultation with their ministers and other party leaders from parliament.  They then introduce the legislation and the bills are ultimately approved by the party or coalition of parties that elected the PM.  Thus prime ministers really have no reason to veto a bill or issue a signing statement about which parts of the bill they are going to ignore.  So the whole issue of a lone executive frustrating the policies wishes of a legislative majority elected by the voters does not even exist.

Lone Wolves vs Collegial Chief Executives

Presidential systems tend to encourage lone-wolf style chief executives — presidents like Nixon, Carter, and Trump.  They see themselves as outsiders, unaccountable to other federal political institutions. They tend to be isolated and see little incentive to cooperate with other governing bodies, often feuding with Congress and even their own parties.  They like to go their own way and emphasize their individual powers.  Soon after taking office, President Trump declared that he didn’t have to listen to Congress: “I have the right to do whatever I want as president.” And when Congress refused to fund his wall on the southern border, he simply declared a national emergency and  appropriated the money himself.

In contrast, parliamentary prime ministers (PMs) exist in a web of strong political relationships. They come from and are directly accountable to parliament – which can remove them if they drift too far away from party policy. So prime ministers must always be keeping in mind what the party leaders in parliament are thinking, and the objections of potentially rebellious “back benchers” among the party’s rank and file.  PMs are also more intertwined with their cabinets, which have a central role in advising and sometimes reining in the chief executive. Like the PM, the cabinet ministers are also sitting members of parliament, which means that they can give crucial advice about the thinking of the various party factions in the legislature.  Exemplifying its importance, the PM meets with the cabinet every week to discuss policies and strategies.

In presidential systems, cabinet heads are not sitting members of Congress– and cannot provide the same kind of inside information about how Congress is feeling about particular issues. Cabinet heads have few opportunities to collectively affect the thinking of the president on crucial issues because they meet only once every two months – compared to weekly in parliamentary systems.  And the meetings themselves often function more as information sessions than policy debates.  As one presidential scholar,  Richard J. Ellis, explained: “The Cabinet as a collective advisory body is a non-factor in the modern presidency. Cabinet meetings are infrequent, perfunctory and essentially meaningless.”

All in all, a chief executive who is more collegial with his cabinet and cooperative with the legislature would seem to be an asset in a healthy democracy – and much more desirable that an isolated president who feels accountable to no one.

Invitation to Authoritarianism

There is another reason for concern about presidential systems, which we can see if we look to Latin America.  This is the only part of the world that has followed the U.S. example and widely adopted the practice of separately elected presidents.  Every one of these countries has fallen into authoritarianism at least once – with democracy being abandoned in favor of a strong-man president or a military junta.  A major contributing factor is that these separation of powers systems are prone to gridlock and inaction when the separately elected president and legislature cannot come to an agreement. Faced with an ineffective government and rising social and/or economic problems, dictators become seen as the only way to get things done in these countries.

Undoubtedly, some of the support for President Trump, with his strongman image and contempt for the niceties of democracy, comes from citizens frustrated with the inability of our separation of powers government to solve the pressing problems they see threatening our nation.  Disturbingly, a 2019 Pew poll found that 43% of Republicans agreed that “many of the country’s problems could be dealt with more effectively if U.S. presidents didn’t have to worry so much about Congress or the Courts.” As the Washington Post reported at the time, the GOP seems to have “caught autocratic fever.”

Particularly troubling in this context is the president’s ability to declare national emergencies – an entirely unilateral power.  These can be used to avoid many of the legal limits to their authority. President Roosevelt used this power to send citizens of Japanese descent to internment camps during World War II. As the Brennan Center for Justice has documented, invoking a “national emergency” automatically gives the president 123 new statutory powers. These powers range from the ability to shut down the internet and other electronic communication systems, to freezing Americans’ bank accounts and deploying federal troops to deal with “domestic unrest.”

Lack of Accountability

It is highly unlikely that any president will ever be thrown out of power, no matter what he or she does.

What makes these abuses of presidential power even more troubling is the fact that the American political system makes it difficult for the public to hold the president accountable for his or her actions. Being able to hold public officials accountable for their actions is an essential part of any democracy.  But in the U.S., there are few avenues available to get rid of presidents who flagrantly abuse their powers and pursue policies that the public opposes.  It is virtually impossible to impeach a president unless he or she is guilty of criminal behavior – “high crimes and misdemeanors” as the Constitution stipulates.  We can’t impeach a president for policy reasons, because he or she is unilaterally pursuing policies opposed by Congress or the American people. And even when there is substantial evidence of a crime – as in both of the Trump impeachment cases – there is no guarantee that the Senate will vote to actually remove the president from office. A successful impeachment requires a ridiculously high two-thirds super-majority in the Senate to convict — which means that it is highly unlikely that any president will ever be thrown out of power, no matter what he or she does. So impeachment is an extremely poor way to hold accountable presidents who abuse their powers in office.

In contrast, many of the 50 states do it better – allowing for recall elections of their chief executives. Some states require an accusation of corruption or misconduct.  But in eleven states, no specific grounds are required at all and recall petitions may simply seek to replace governors who have gone “rogue” and are pursuing policies at odds with the legislature, the public, or even their own party. The key point, of course, is that the recall puts the power of accountability directly in the hands of the voters, not politicians.

Some have argued that citizens do have a method of holding presidents accountable:  they can vote against them when they come up for re-election.  But four years is a long time to wait to get rid of a president who is flaunting the public will and doing an enormous amount of policy damage. And in any case, that only works for a first-term president.  Once elected for a second term, a lame-duck president has nothing to fear from a public who will no longer be able to vote on him or her again.

Prime Ministers are More Accountable

It is much easier to hold a prime minister accountable.  You don’t need to impeach them; they can be removed in two simpler ways.  First, a majority party could become disenchanted with the current prime minister and simply choose a new leader of the party, who then becomes the prime minister. Thatcher?  Second, there can be a “vote of no confidence” by parliament.  This is what typically takes place where there is a ruling coalition of several parties, not a single-party majority.  A party may drop out the coalition and form part of a parliamentary majority voting no confidence in the prime minister. In this case, the prime minister and his or her cabinet are removed, and a new national election is held. So in parliamentary systems, prime ministers can be removed at any time if they abuse their power or pursue policies that are adamantly opposed by the public.  This is a much more effective form of accountability than an election every four years.

More accountability means that prime ministers are likely to do a better job of representing the public – an essential part of democracy.  For example, they are more apt to stick with their campaign promises and not pursue policies contrary to those for which they were elected.  Presidents, on the other hand, are more likely to engage in “policy switching” – promising the voters one thing in their campaign, but then pursuing the opposite once in office.  Political scientists David Samuels and Matthew Shugart conducted a study in which they looked at this problem and concluded that “policy switching is about four times as likely in presidential systems as in parliamentary systems.”

Solutions for the U.S.

There are two approaches to the problem of unaccountable presidents abusing their power: those that require a constitutional change and those that do not. One obvious solution would be to switch to a parliamentary form of government which does not have a separately elected president.  A chief executive who is more collegial, less likely to abuse power, and more easily gotten rid of would be enormous improvement.  Undoubtedly, some Americans would argue that if we abandon a separately elected president, this would undermine our checks and balances system.  But as seen in another article on this site, the separation of powers system creates a lot of problems for a democracy – like gridlock – and many healthy Western democracies do just fine without it.  In the end, of course, the main problem with the PM solution is that it would require a huge change in the Constitution – which is extremely unlikely.

A less radical approach would be to pass various kinds of amendments to rein in presidential powers – for example, one that made it easier for Congress to override vetoes. Instead of the current two-thirds of each house, we could require only a majority to override – thus limiting the impact of the president’s veto power.  Or we could pass an amendment that eliminated signing statements.

But given the great difficulty of amending the Constitution, those concerned about excessive presidential power have come up with some other reforms that would not require amendments.  Many of these rely on the checks and balances built into our presidential system.

• We could increase Congressional oversight of presidential activities. Congress could certainly do a better job in ferreting out questionable activities by the CIA and NSA, both at home and abroad.
• Congress could intervene more actively to limit the president’s ability to use military force in other countries. In fact, it has already done so with the War Powers Act of 1973 that tried to limit presidential use of troops to 90 days without the explicit approval of Congress.
• The Supreme Court and lower federal courts could act as a check on presidential power. The Court is in a good position to rule various presidential acts – such as executive orders – unconstitutional.  For example, it overturned President Trump’s attempt to include a citizenship question on the 2020 census.
• Some have called for the presidents themselves to exercise more restraint in using their powers. For example, presidents could refrain from using signing statements to avoid enforcing parts of laws they object to.  And they could limit their use of the veto.

We should of course encourage these kinds of non-constitutional reforms, but unfortunately, there is reason to doubt their efficacy. For one thing, all of these suggestions have been around for decades and have not had a large effect on presidential behavior. It seems that the temptation to over-use presidential power is almost overwhelming and so it is probably naïve to rely on the president’s self-control to avoid abusing these powers.  And Congress has little time for active oversight of the executive branch. It only seems to step in once a scandal has been uncovered – such as the torture and abuse at the Abu Ghraib military prison camp in Iraq, or the self-serving crimes and abuses of power of President Trump. In addition, Congress tends to pull back and give free rein to the executive branch during times of national crises or alleged threats to national security – which is practically an invitation to abuse presidential powers.  Finally, the Supreme Court has acted only rarely to stem the growth and abuse of presidential powers. History has shown that the Court has done little to rein in abuses of the veto, signing statements, and the president’s war powers. As a rule, the Court tends to get involved in only the most egregious and obviously unconstitutional abuses of power. And with a conservative majority locked into the Court for the foreseeable future, it seems unlikely that it will become more active in solving these problems.

Chances for Reform: Don’t Hold Your Breath

Reforms in this area become more likely if they are fueled by public outrage over presidential abuses of power.  But how concerned is the public about this problem? People do get up in arms about specific scandals surrounding presidential powers.  Many were outraged to learn that their telephone calls and emails were being spied upon.  And a 56% majority of Americans supported the impeachment proceedings against President Trump on charges of inciting the Capital riot. This is a hopeful sign.

But when it comes to abuses of power and lack of accountability, most Americans seem to have trouble distinguishing between the presidency and specific presidents.  Generally, people are only concerned about excessive executive power when the president is of the opposite party.  Republicans, for instance, thought Obama had too much power, but then wanted to actually increase the power of the Trump presidency.  Few see these problems as constant structural ones built into the presidency itself – built into the powers of military interventions, the veto, administrative rulemaking, and signing statements.  And most people seem to take for granted that the only solution to presidential abuses of power is impeachment, and they are largely unaware of the ways that other major democracies rein in the power of their chief executives.

Unfortunately, many national politicians have not shown much leadership around these questions of executive powers.  The Republicans in Congress did not, by and large, challenge what many saw as highly questionable actions by President Trump.  The Democrats were more critical of these actions.  A survey of 2020 Democratic presidential candidates did show a significant concern about abuses of presidential powers. But often their concerns seemed somewhat limited.  Most thought that presidents should defer to Congress more on military matters.  But their other suggestions to limit presidential powers focused primarily on abuses by Trump, not structural aspects of presidential powers.  They wanted new laws to require presidents to reveal their tax returns, to divest of significant financial assets, and to prevent them from firing special prosecutors investigating their administration. Significantly most did not want to curb the use of signing statements and the issue of abusing the veto was not raised by anyone.

In addition, as noted earlier, it is notoriously hard to change the Constitution, putting into doubt any major reforms that would require this kind of change. The one exception to this may be the amendment mentioned above to make it easier to overcome presidential vetoes.  Congress would likely look favorably on a reform that gave it more power, making it easier to get the two-thirds vote in each house that would be necessary for ratification.  However, it would still need approval of three-quarters of the states – a high barrier to overcome.

For all of these reasons, at this point, it is hard to be optimistic about the chances for meaningful reform to fix the undemocratic tendencies built into the American presidency.

read the next issue: 14. Its Undemocratic Origins