Restatement

My basic position is that our present government in the US is broken and needs fixing. The President has become too powerful and is distorting the democratic process. I would like to see the government fixed by moving it in the direction of a parliamentary system. There are really only two forms of government in the world today, the parliamentary system and the American Presidential system. There is some evidence that the parliamentary system is the more stable form.

For most of those who consider changing the government, this means changing the Constitution through some sort of Constitutional amendment. I disagree with this. My reading of the history of amendments to the Constitution (see Amar, America's Constitution, 2005)is that amendments to the Constitution take place after changes in the government have occurred, not before. They serve to recognize legally the changes that have taken place in fact. The abolition of slavery, for example, was not the result of the amendments abolishing slavery: rather the amendments were the result of the changes that had taken place during and before the Civil War.

Similarly, a change in our government will have to take place first, and then a change in the Constitution will follow. The change I would like to see to counteract the power of the President is to have the House of Representatives direct the President as to who he is to nominate for the cabinet positions for which he now has complete discretion in choosing, and to make it clear that the House will also be responsible for removing the executive officers.

Perhaps the first reaction to such a proposal is that it would simply be unconstitutional: the Constitution in Article II, Section 2, clearly gives the power to nominate and appoint the executive officers to the President, with the advice and consent of the Senate. And practice has clearly been to allow the President total discretion in choosing his cabinet officers. The fact is, though, that there is a process involved in choosing who to nominate for a position, and the Constitution says nothing at all about that process. As it is now, the President consults with his advisers and friends, considers different persons for the positions, often talks to them to sound out how they feel, and so on. None of this is covered in the Constitution. Similarly, the Constitution says nothing at all about how or who is to remove executive officers other than the President. As Corwin (The President:Office and Powers, 1957)remarks, "Except for the provision for a power of impeachment of 'civil officers of the United States,' the Constitution contains no reference to a power to remove from office, a situation in which early resort to the judicial divining rod would seem on first consideration to have been highly likely and necessary." Thus there is nothing in the Constitution to say how the persons the President nominates are to be chosen, nor does it say anything at all about how they are to be removed.

The tradition, of course, has been that the President has the power to choose as well as appoint, and to remove executive officers. This tradition has lasted more or less for 200+ years. In fact, however, there has been a continual give and take over the power of the President to nominate officers of his choosing, and the power of the Congress to decide who will be nominated (see Fisher, The Politics of Shared Power, 1998). For instance, Senators have traditionally been able to determine who the President nominates for judge ships in their states. Congress is able through regulations and qualifications, to limit the discretion of the President in his choices.

The bottom line,though, is that every executive officer other than the President exists only through an act of Congress by which the office and department is created. In creating the positions of State, War, Treasury, and so on, the Congress through its acts, has granted to the President the authority to select and by implication to remove his executive officers. But these are simple acts of Congress: they are not Constitutional Articles. As such, they can be changed, and amended, just as can any other act of Congress, without having to go through a process of Constitutional Amendment. There is no Constitutional reason that the Congress could not rewrite these original acts to state that the President will nominate the person for the position in question as directed by the House of Representatives, and that the House of Representatives will be responsible for removing him. This is not a Constitutional issue: it is a power issue.

If we are serious about changing the nature of our government, then this is a way to do it. This is not a new idea. The possibility of such a change was noted in a very negative way in 1871 in an opinion of the Attorney General. As he put it, if the President did not have the power to control other executive officers, "It would, as Attorney General Cushing quaintly phrased it, leave it open to Congress so to divide and transfer 'the executive power' by statute as to change the government 'into a parliamentary despotism like that of Venezuela or Great Britain, with a nominal executive chief or president, who, however, would remain without a shred of actual power.'" (Quoted in Corwin, 1957) Indeed,this is just the kind of change in our government that I feel is necessary at this time. The only question for me is whether we have a parliamentary despotism or a presidential despotism. I would much prefer a parliamentary despotism.

Some might argue that the President's power of commander in chief would be compromised by such a change. To this I can only refer to the situation of the Queen of England. She is the commander in chief of her armed forces, but there is no way that she is in fact the commander of anything. She cannot act except through her ministers, and they are members of parliament. I have not heard of any complaint that the British have not been able to deploy their armies and navies effectively in the exercise of their imperial authority just because their monarch was not actually in charge of those forces. A similar situation would apply to the US. The President in fact even now does not act except through his departments, and the departments are quite capable of acting effectively under the direction of the Congress rather than the President.

There would, of course, be a huge resistance from the President and the executive in making such a change. The President would no doubt cry that such changes are unconstitutional and would try to intimidate Congress into defeating them. He would have to be dragged kicking and screaming into accepting the new reality. I would expect, however, that the Supreme Court would not touch this issue with a ten foot pole: it is quintessentially a political issue, and the courts usually do not want to get involved in political issues. On the other hand the courts may be very much affected indirectly if such changes were to take place, so they may get involved. If, however, the Congress and the people it represents were clear that these changes are needed, then they would occur. The only problem, then is educating Congress and the people that these changes are desirable. If the courts got involved under such circumstances, where the Congress and the people are clearly behind the changes, then may be the point at which a Constitutional amendment would be appropriate.