Over decades, voters have made the president the dominant figure; that’s not what the Founders intended.
Tomorrow is Election Day, and even though President Donald Trump is not on the ballot, his presidency looms large over the outcome. Most Americans have consistently expressed their disapproval of him over the last 18 months, which stands to hurt Republicans tomorrow. Just how badly the GOP will suffer remains unclear for now.
We take for granted that midterm elections are largely influenced by opinions about the president. It is how our system works. In practice, this is true, but the way things function in 2018 is quite different from the regime implied by the Constitution.
The Founding Fathers inherited a tradition of radical Whiggishness from the English. Early-18th-century thinkers such as Lord Bolingbroke, John Trenchard, and Thomas Gordon were extremely worried about the extent to which the crown was able to interfere in the affairs of Parliament, undermining the extent to which that branch represented the voters, and by extension the republican quality of the whole government. Following the French and Indian War, fears of executive interference with legislative functions became a crucial component of revolutionary sentiment in America — colonists looked on with growing disgust as George III ignored or outright rejected what they believed were the rights of their legislatures.
The Articles of Confederation — which governed the United States until 1789 — reflected the American worries about executive power . . . because there was no executive branch. Moreover, in the states, the governors were usually hamstrung by the legislatures as well.
This was extremely problematic, for as Alexander Hamilton notes in Federalist 70, “Energy in the Executive is a leading character in the definition of good government.” So the Framers of the Constitution designed a presidential office out of necessity. (Some at the Constitutional Convention, such as Edmund Randolph of Virginia, thought an executive council would be less dangerous because power would not be concentrated in a single person.)
Yet even as they did this, the Framers took care to insulate Congress from executive interference — in large ways and small. Perhaps the most important way they protected Congress from the president was by denying the latter the right to dismiss the former. The president may call Congress into special session, but he is prohibited from proroguing, or ending, a legislative session. He may veto legislation, but it is not an absolute negative; Congress can override presidential disapproval with a two-thirds majority of both chambers. Each chamber of Congress also has the exclusive authority to write its own rules, discipline its members, and settle all disputes over qualifications to sit in the chamber. Members are prohibited from holding executive offices while they are in Congress, which prevents the president from effectively bribing them through patronage. They are also free to say what they like on the floor, without fear of the president sending the FBI to arrest them. And Congress sets its own pay.
All of these protections came out of hard experience — not just during the Revolutionary period, but also from the 1600s, when Parliament time and again had to assert itself against the Stuart kings. So the Framers of the Constitution enshrined into law the idea that Congress cannot be touched by the executive branch. Yet the opposite is not true: The president himself is subject to congressional removal through the power to impeach and remove executive officers, and neither he nor the courts can do anything about such removal, if Congress is so disposed.
What we have then is a series of institutional devices that all cut in the same direction: Congress is free from presidential interference, but the president is not free from congressional interference. So why is it that the president is so influential in congressional elections? Put simply, that is what the people want.
Just as the president is forbidden from interfering with Congress, so also is the Congress prohibited from interfering with public opinion. That is the essence of the First Amendment, which guarantees the rights of conscience, speech, press, assembly, and petition, all building blocks of public opinion. Congress is the most powerful branch of the government, and the people are guaranteed sovereignty over Congress.
Starting with the presidency of Andrew Jackson, the president came to be the dominant figure in American public life. This tendency waxed and waned over the 19th century, but the rise of mass communications and the growth of federal power during the 20th century created the mammoth executive office that now exists. The president draws the attention of the people toward him and away from Congress, the courts, and the states. So even though Congress remains at the center of constitutional government, it is the president who dominates public opinion.
It is in this way that the president can influence Congress so enormously. He does not do so directly, for the constitutional safeguards are basically insurmountable. Rather, he influences Congress through the people, who do have direct control over Congress.
Is this a good way to organize public affairs? I think not. The plain fact is that the president does not have the constitutional power that the people assume that he does. The Framers were far too Whiggish to give the president any kind of authority approaching that of a king. Real change in public policy comes inevitably through Congress, and Congress alone. If we want our government to function better, we should do the work of evaluating members of Congress more carefully, rather than using congressional elections as a proxy vote on our opinion of the president.