Why Brooks Is Wrong: The Case Against Strengthening the Presidency

In his column today, the New York Times’ David Brooks makes the case for strengthening the presidency as a way to overcome the partisan gridlock that afflicts our national governing institutions.  Brooks stakes his claim on the belief that the constitutional system of “checks and balances has morphed into a ‘vetocracy’, an unworkable machine where many interests can veto reform.”  A prime culprit for the current period of legislative stagnation, he argues, is a proliferation of interest groups and issue activists that have collectively usurped authority from Congress and the presidency.  This “mass of rentier groups” now “dominates the official governing sector. Throw in political polarization and you’ve got a recipe for a government that is more stultified, stagnant and overbearing,” Brooks writes.

His solution? Strengthen the presidency: “We don’t need bigger government. We need more unified authority. Take power away from the rentier groups who dominate the process. Allow people in those authorities to exercise discretion. Find a president who can both rally a majority, and execute a policy process.”

What is one to make of Brooks’ argument?  For starters, the critique and purported solution are hardly new.  Generations of constitutional scholars and other critics have charged that the constitutional system of shared powers, whatever its virtues two centuries ago, has become increasingly outmoded due to its tendency toward gridlock and ease of obstruction by minority interests. See, for example, Woodrow Wilson’s Congressional Government, published in 1885, which cites a list of defects associated with a congressionally-dominated system of shared powers.  And more often than not the proposed solution is to strengthen the presidency – a solution Wilson pursued with uneven success when elected to that office in 1912.

Why the presidency?  In  his brilliant article “Does the Separation of Powers Still Work?”, the late, great James Q. Wilson addresses why so many constitutional critics embrace what Wilson sees as an ultimately misguided effort to cure the “mischiefs of faction” by strengthening the presidency. Writing in 1986 at time when structural budget deficits against the backdrop of divided government led the David Brooks of the day to lament the inability under the Constitution to, as Lloyd Cutler famously put it, “form a government”, Wilson’s reasoning is worth revisiting in light of Brooks’ proposal.

Wilson begins with the observation that if one is asked what is wrong with the American system of government, more often than not the answer fingers the system of shared powers.  And with equal frequency, Wilson continues, these critics will propose a reform premised on reducing the influence of shared powers by strengthening the presidency.  The logic behind this proposal is similar to what Brooks appears to embrace: that a single elected individual, responding to a national electorate, is far better able to discern and pursue the public interest than is a decentralized institution like Congress, with its many actors and multitude of decision points.  In words that anticipates Brooks’ lament, Wilson notes that “If one listens to the reflections of presidents and their aides, no matter whether they are liberals or conservatives, the most common complaint is that presidents don’t have enough power.”

As Wilson points out, however, the lack of a strong president is precisely what the Framers intended when they established a system of shared powers:  “But of course the Framers of the Constitution were not trying to create a government that would discern national goals and serve them efficiently with dispatch; they were trying to create a limited government that would serve only those goals that could survive a process of consultation and bargaining designed to prevent the mischief of faction and the tyranny of passionate majorities or ambition politicians.”  What critics who want to strengthen the presidency are really saying, he suggests, is that the “separation of powers is a fine idea…except when it prevents me from having my way.”

Wilson concludes by citing two fundamental reasons for continuing with the system of shared powers (and thus rejecting Brooks’ call for a stronger presidency): “It helps preserve liberty and it slows the pace of political change.” It is easier today to lose sight of how the system of shared powers protects liberty, Wilson believes, because we have become accustomed to seeing an activist court take on that function.  But as Wilson points out, court activism also fosters legislative delay and uncertainty, although few seek to curtail judicial independence.

Wilson goes on to compare the ability of the U.S. system of shared powers with parliamentary systems in three major areas: reducing the deficit, making economic policy and conducting foreign policy.  In all three areas he makes the case that the American system is at least equally effective, if not more so, than are parliamentary systems.  Moreover, he reminds us that every generation tends to exaggerate the uniqueness and significance of its particular constellations of crises, while downplaying what came before.  In reality, however, it is hard to make the case that the problems we face today come anywhere near the seriousness of the difficulties the Framers sought to address by establishing the system of shared powers more than two centuries ago.

In a later post I’ll address this portion of Wilson’s argument in more detail.  But his crowning point – one worth remembering before embracing Brooks’ advice – is that previous reform efforts suggest there are no constitutional remedies to the system of shared powers short of abolishing that system.  And that is a price, Wilson argues, “that two hundred years of constitutional government should have taught us [and Brooks!] is too high to pay.”

10 comments

  1. Brooks, as usual, has engaged his mouth (pen, typewriter, computer) before his brain is engaged. What makes him an authority? From which law school did he graduate? Did he take Obama’s “constitutional law for idiots” at some night school?

    We don’t need a stronger presidency; what we need is a stronger president.

    What we need is a president willing to engage and to lead, to propose, to cajole, to threaten, and ultimately to bring all the parties to the table in a compromised deal on every issue. Most likely a deal, not one that everyone likes, but more likely, a deal that everyone dislikes equally.

    That’s how it has always worked in America.

    But, who knew we’d be stupid enough to elect a poseur, not once, but twice? A man with no discernable past, questionable birth records, no discoverable college records, no discoverable law school records. No real writings, except by others with his name on them.

    No, I am not a “birther”; I don’t care where he was born; it is where he lives now that bothers me.

    My theory, for what it is worth, is that he went to those schools and performed in a mediocre way. But most likely, under another name (Barry Sotero) and most importantly, under a foreign scholarship, claiming to be a foreigner. That’s why the sealed documents and undiscoverable records. How is it we know where every cow in America is located and we can’t find this out? Where is Edward Snowden when we really need him?

    Trey Gowdy said it best the other day when he said he wasn’t surprised at any of the lies that have been told or at the cover ups and blatant hardballing; he was just surprised about how many people bought into it.

  2. The quality (or lack thereof) of some of the replies leaves one wondering as to your audience. David Brooks always struck me as trying hard to disguise his basically very conservative core.

  3. Arnold,

    My guess is that most people would say that Brooks is a thoughtful conservative who does little to hide his partisan leanings.

    And, if you lurk long enough, you’ll see that we have an open door (read: no partisan filter) policy on comments, something I take a bit of pride in. Quality is defined differently by different people. But rest assured, we get thoughtful comments from across the ideological spectrum.

  4. Cynthia Farina wrote an interesting article on the unitary executive (which Brooks is basically advocating) in 2010 in the U Penn Journal of Constitutional Law. Basically she argues that we have become more susceptible to arguments in favor of the unitary executive but also it has become less justified. As the executive branch has grown, it is impossible to see one person as controlling it which undermines the idea that the executive branch is producing a democratic outcome. It was fairly compelling. She also argues against the President representing the American public which I found less convincing.

    Cite: University of Pennsylvania Journal of Constitutional Law, vol. 12, no. 2 (February 2010)

  5. Stuart,

    You wrote, citing Farina: “As the executive branch has grown, it is impossible to see one person as controlling it which undermines the idea that the executive branch is producing a democratic outcome.” I would add that it also undermines the reality of the “unitary” executive, a point I’ve made repeatedly in various posts. As you point out, “the” executive branch is really many different branches, whose members have different interests and respond to different incentives than does the President. Writing in 1960, Richard Neustadt observed, “Department heads in general have more bargaining power than do most members of the White House staff, but bureau chiefs may have still more, and specialists at the upper levels of established career services may have almost unlimited reserves of the enormous power which consists of sitting still.”

    A unitary executive? I think not.

  6. It seems to me there’s a more interesting discussion to be had by engaging not with Brooks, but with the longer article by Fukuyama that he is basically just affirming. Fukuyama’s case there is not simply that the presidency needs to be “stronger,” but that we increasingly demand things of government that would best carried out by the executive, but in practice are left to either the legislature (which had been captured by interest groups) or the courts (which are both unelected and an inefficient way to deal with these issues). That’s not simply an argument for an “imperial presidency” or unitary executive so much as an argument that our executive can’t execute, even when tasked with specific responsibilities by the legislature.

    This is not to say I agree with him necessarily, but it’s a much more interesting and nuanced version of the argument that Brooks is making.

  7. Bob Rosen was kind enough to allow me to excerpt parts of a private email he sent regarding my post. Here is some of what he wrote: “I read David Brook’s piece before you sent the email to me and I could write a treatise in response to both Brooks and Matthew Dickinson’s 12/13/13 blog. Needless to say, I do not have time but here are a few thoughts.

    1. The Founders did want a system that made it difficult to pass laws and were extremely cautious with granting the executive broad unlimited powers However, the Founders never contemplated the type of political process that we have today with parliamentary parties in a separation of power system. All of the Founders were extremely wary of factions in the political process even though Jefferson was probably the first to use factious attacks from third parties against Adams and the Federalists.

    2. The ideas of the Founders are used by both sides of the political divide to justify their positions when in fact both left and right ignore the original meaning of the Constitution (even Scalia and Thomas, the “Originalists”.) The best example of which is the Commander in Chief provision in the Constitution. Hamilton, the most conservative of the Founders, said it meant nothing more than the First General. Yet modern Presidents from Roosevelt on (and especially Bush and Obama) have used the
    language to give themselves unprecedented power that has realistically never been opposed by Congress. The Founders assumed Congressional involvement in military actions that would have been totally unrealistic in the world of MAD or terrorism today and I doubt that most conservatives would want to put the restrictions on the executive that the Founders originally thought would be appropriate. A similar argument could be made about the Supreme Court decision on the 2nd Amendment which totally ignored the introductory language of militias. Judges interpret based on their own political leanings and then justify using the language of the Founders. Our constitution has changed with the times, as it should. There is a great Stanford Constitutional scholar (Rakove) who wrote a book called Original Meanings whose premise asks whose original meanings; the drafters, those who ratified it, the states who adopted it or the people at the time? Bottom line,referring to the intent of the Founders is not a great argument.

    3. If the Supreme Court did not totally screw up in 2005, we probably would not have to deal with this issue. In 2005 the Court allowed gerrymandering which had made more than 60% of Congressional races not real contests and forced both political parties to the extremes. Separation of powers works with moderate centrist parties which we no longer have. Brooks was trying to deal with it in an in-artful manner but at least he tried to deal with it. Dickinson’s critique does not deal with the problem and makes interesting arguments without much realistic meaning in today hyperbolic political world.”

  8. John,

    You are right. The Fukuyama piece is more nuanced and interesting (and considerably longer!) than is the Brooks’ column. Once I work my way through the current stack of bluebooks, I’ll try to address some of his points which, as evidenced by his reference to earlier works, is a cogent restatement of some longstanding critiques of the constitutionally-based system of shared powers.

  9. Bob,

    You are quite right to note that the Founders were not of one mind when it came to “original intent” and the Constitution. I think Wilson’s point is that despite differences among them, they all were concerned with balancing two competing objectives: how to make government work better (at least better than it was under the Articles of Confederation) without making it so powerful as to usurp individual liberties. Needless to say, they did not necessarily agree on how to achieve that balance. We are still disagreeing today! But my point, echoing Wilson, is that Brooks’ solution to the current political crisis only deals with one side of that equation: how to make government work better. In his case, it is by strengthening the presidency. But at what cost?

    As for gerrymandering – believe it or not, the evidence that gerrymandering has contributed to the current polarized state of political parties is not as obvious as you might think. Scholars are not of one mind on this point, but as an interesting intellectual exercise, consider that the Senate has polarized at about the same rate as has the House in recent decades and yet, obviously, Senate “districts” have not been gerrymandered. One study, by Sean Theriault (see his Party Polarization in Congress, suggests that gerrymandering may account for about 10%-20% of the current level of polarization in the House. Of course, his is not the last word. And it raises the question: if not gerrymandering, then what?

    Thanks for the very useful feedback.

    – matt

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