Reason TV has posted video of my recent Soho forum debate on presidential power, facing off with Stanford University’s Terry Moe. The overarching question was “Is More Presidential Power Necessary in the Modern World?”, but the debate resolution itself focused on a specific proposal advanced by Professor Moe:
Moe and his coauthor, the University of Chicago’s William G. Howell, have showcased the idea in two books so far: 2016’s Relic and last year’s Presidents, Populism, and the Crisis of Democracy. It’s supposed to work like this: under “universal fast-track authority,” the president gets to write his preferred legislation and submit it for a quick, up-or-down vote (no filibustering allowed) without congressmen getting their grubby little thumbprints all over it. For the formerly “First Branch,” the only choice would be to rubber-stamp the president’s bill or “veto” it. We might need to amend the Constitution (and rewrite the lyrics to “Schoolhouse Rock”) to get there, but arming the president with this new, agenda-setting power would pay off mightily, Moe and Howell argue. It would deliver scads of “effective government” and the sort of “coherent, problem-solving leadership that presidents can offer.” They alone can fix it!
I don’t think much of this idea, and said so in my opening remarks. In the worst case—say, the early days of a genuine national crisis—this new presidential power could be quite dangerous. Even in the best case, their proposal rests on assumptions about presidential motivation that don’t track with reality. Moreover, if implemented, the fast-track amendment would likely make the very problems Moe and Howell want it to solve—polarization and populist authoritarianism—even worse.
In his rebuttal, Professor Moe huffed that “Gene just took a giant plate of linguine and threw it against the wall to see what would stick… There wasn’t any coherent, logically linear kind of argument, just a bunch of points that weren’t entirely connected to one another. Dealing with that kind of melange is not so easy.”
Er, sorry about that. Still, I flatter myself that what I served up had more meat than carbs. Go here to get a flavor and judge for yourself. And in case you’re not up for the full hour and a half video, I’ll crib from my notes and lay out the TL;DW version below.
The Fast Track to War
I led with the worst-case scenario: the dangers of giving the president new agenda-setting powers in the area he can do the most damage: with the use of military force. Moe and Howell argue that universal fast-track would empower the president to cut through “all the obfuscation and blame avoidance that regularly occur on Capitol Hill during the leadup to war.” He can just put his preferred war authorization language in front of Congress and force them to stand and be counted.
Sounds great in theory, but how might it have worked out in an atmosphere of national crisis, like the one that prevailed immediately after the September 11 terrorist attacks? Readers are no doubt familiar with the 2001 Authorization for the Use of Military Force, or AUMF, that Congress passed three days after 9/11. It gave the president the power to wage war against “those nations, organizations, or persons he determined planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001”—in other words, go get the guys who did 9/11 and anyone connected with them.
Three presidents in a row have stretched that law into an all-purpose justification for two decades of low-level war in at least half a dozen countries at any given time. And that’s entirely Congress’s fault, according to Moe and Howell: “The language could not have been broader, its delegation of authority more expansive.”
Well, of course it could! And it would have, had their fast-track amendment been in place.
Here’s some broader language:
“The president is authorized [to use military force] to deter and pre-empt any future acts of terrorism or aggression against the United States.”
That’s the language the Bush administration put on the table in negotiations with Congress the day after 9/11. Talk about a blank check! As the Congressional Research Service put it in 2006, the Bush administration’s draft legislation:
would have seemingly authorized the President, without durational limitation, and at his sole discretion, to take military action against any nation, terrorist group or individuals in the world without having to seek further authority from the Congress. It would have granted the President open-ended authority to act against all terrorism and terrorists or potential aggressors against the United States anywhere.
Indeed, the Bush team’s draft AUMF would have been a license for any future president to unleash fire and fury against North Korea, Iran, or any country he decides is looking at us funny. But if President Bush had had the power to force an up or down vote on that language, three days after 9/11, do you really think Congress would have voted it down, with Ground Zero still smoldering?
The "Promise" of Presidential Activism
Still, in their latest book, Moe and Howell argue that we shouldn’t be “fixated” on the fear of presidential power. If we tie presidents’ hands, we’ll miss out on all the good they can do. Instead, “we need to leverage presidents’ concerns for legacy and the national interest by empowering them in key respects, particularly within the legislative process, to lead our government in meeting the challenges of modernity.”
What you have to understand, the authors insist, is that “presidents are wired very differently than Congress is.” Legislators are parochial; they mainly want to bring home the bacon. But presidents are elected by the whole country, which forces them to focus on the national interest writ large. What’s more, they tend to obsess over their legacies, and they recognize that solving big national problems is “their ticket to historical adulation.” No wonder, then, that “Presidents routinely aspire to be the nation’s problem-solvers-in-chief.”
The picture of presidential motivations they paint here is somewhere between a caricature and an outright myth. There’s a wide body of evidence showing that—just like any swamp-dwelling congresscritter—presidents play porkbarrel politics with federal aid, directing it where it helps them politically: swing states and areas where their partisan base is concentrated. (See, for example, “The Politicization of Disaster Relief,” Steve Horwitz and E. Frank Stephenson’s excellent review of that evidence in the Summer 2020 issue of Regulation.)
As for this idea that solving genuine national problems is the sure-fire ticket to “historical adulation,”—well, pardon the Joe-Biden-ism, but: “C’mon, man.”
You know who was a genuine “problem-solver-in-chief”? Jimmy Carter. Don’t laugh! He led a wave of transportation deregulation that made air travel accessible to average Americans, and enabled quick, inexpensive nationwide shipping. Last year, pampered yuppies throughout the fruited plain had the Man from Plains to thank every time UPS dropped off a Peloton bike or a pandemic care package with sourdough starter.
But has our 39th president earned any “historical adulation” for his achievement? Hardly. He’s bottom half of the class in the presidential rankings, barely ahead of Dick Nixon, and well behind warmongering busybodies like Harry Truman and the odious Woodrow Wilson.
The scholars who fill out presidential-greatness scorecards favor presidents who move quickly and break things; whether or not they solve any large national problems in the process appears largely beside the point. A clear-eyed look at the winners and losers in the presidential rankings game is hardly going to convince a legacy-minded commander-in-chief to, say, get out ahead of the threat of antibiotic resistance or stand up a good asteroid defense. He might even conclude that the surer path to historical greatness is starting a war.
A Firebreak against Populism?
Moe and Howell’s Relic: How Our Constitution Undermines Effective Government--and Why We Need a More Powerful Presidency came out in Spring 2016, about a month before Donald J. Trump sewed up the Republican nomination for president—awkward timing given the subtitle. In 2020’s Presidents, Populism, and the Crisis of Democracy, they renew the call for investing POTUS with new legislative powers, with special emphasis on how universal fast-track can serve as a firebreak against populist authoritarianism and rampant polarization.
But there’s more than a hint of what the psychologists call “projection” in the authors’ repeated insistence that “ineffective government” is what’s fueling these pathologies.
The story is we’ve got a paralyzed government, overburdened with veto points, we can’t bring big solutions to big national problems, and that’s fueled anger and anxiety among the masses. At one point, Moe and Howell write that government “ineffectiveness is what gave rise to Trump in the first place”
But it’s not as if the 21st century has been one long, woeful tale of government paralysis. We have any number of examples where Congress and the president got together to “get big things done”—usually in accordance with the president’s vision: the wars in Iraq and Afghanistan, the Patriot Act, and the Department of Homeland Security after 9/11; the massive stimulus package and the TARP bailout plan during the financial crisis.
A number of these big-ticket items feature heavily in populist complaints. Before they drifted Trumpward, the Tea Party brigades got started as a populist backlash against bank bailouts. And—with the exception of immigration policy—for the most part, actual populists aren’t upset about elite inaction. They’re more angry at the big, dumb things they did.
Moe and Howell insist, however, that giving the president the whip hand in the legislative process will finally allow us to tackle the problems that plague us, like “a nonfunctioning immigration system, skyrocketing debt, unsustainable entitlement programs, a warming climate”—and all the effective government we get will put us on the path toward social peace.
To the contrary, in the unlikely event their proposal for new presidential empowerment got implemented, my strong suspicion is it would make the problem of Red-Blue tribalism even worse.
It wasn’t just Donald Trump’s incontinent and erratic personality that’s lately made the presidency one of our biggest fault lines of polarization. It’s the fact that the president, increasingly, has the power to reshape vast swathes of American life.
When the president has the power to shape what our health insurance covers; what sports our kids can play; whether or not you’re on the hook for your student loans—the power to launch a trade war from his couch or stumble into a shooting war with Iran, then you can bet we’re going to fight about it bitterly. The stakes are too high.
The Moe-Howell Amendment—with its new agenda-setting powers for the president—raises the stakes even higher. It makes the presidency an even bigger prize in a zero-sum, winner-take-all partisan deathmatch.
If what we’re worried about is the rise of populist demagogues, we should be heading in the opposite direction: working diligently toward limiting the damage they can do if and when they take office. That means reining in emergency powers, war powers, authorities over trade, and the ability to make law with the stroke of a pen. That’s a program that could make the presidency safe from populism and safe for democracy.