The Pakistani Spectator

My first political blog, here on Pakspectator, dealt with An American Perspective on the US Courts, in the US, in July, 2007. At the time, Pakistan had recently seen its Supreme Court judges removed from power, so my blog described the powers of the US Supreme Court, as well as limits to those powers from the Legislative and Executive (presidential) branches of the US government, including the legal (but very rarely used) process for removing individual judges through impeachment (by Congress) for crimes committed. I am inspired to see that the Pakistani Supreme Court is seeing a non-violent restoration of the members who were earlier removed by less-formal means, a restoration driven by the clearly expressed voices of the Pakistani people. With today’s article, I’ll focus on the powers of the US president, as we begin Barack Obama’s 4-year term with high hopes held by most Americans and by many others throughout the world.

How much can one man do, as the US president? How much power does he have, anyway? There are really three questions, here:

1. How much legal control does the president have, in theory?
2. How much legal control does the president have, in practice?
3. How much actual power does the president have, beyond his strictly legal powers?

The three branches of the US federal government are:

• The judicial branch, run by judges appointed to interpret the federal laws, and headed by the US Supreme Court, which theoretically has final say in questions of interpreting the laws.
• The legislative branch, run by senators and representatives elected by state and local elections to make the federal laws.
• The executive branch, run by the US president, elected by the whole country to carry out (to execute) the federal laws.

The framers of the US Constitution, over two-hundred years ago, very deliberately designed the government so that each of these three branches had clearly defined ways to limit the power of the other two branches. They also reserved rights for the state governments and for the people, themselves, so that many matters are not under the control of any of these branches of the federal government. In designing the US system of government, the framers of the constitution recognized a difficult trade-off:

On the one hand, a strong central government that places uncontrolled power into the hands of a single branch of government can do more, and act faster. When that strong central government is run by wise, great leaders, this ability to get big things done faster is a real virtue. On the other hand, when the leader or leaders of a government with such unchecked power residing in a single dominant branch of that government are not so wise, or not so virtuous, we would often prefer that the power of any one branch of the government to make big things happen quickly should be as limited as possible!

The framers of the constitution had recently survived the US Revolutionary War, where they had fought desperately to overcome just such a central government with largely unchecked powers, so they had particular reason to prefer a more-limited government that required slow and deliberate cooperation between three largely independent branches of government to make big things happen. American leaders (who generally assume that they, themselves, are the wise sort that would do well without those frustrating “checks and balances” from the other branches of the government, and even sometimes without some of the rights reserved for the states and for the people) frequently find these limits frustrating. However, most Americans agree that our nation would likely have failed long before, and would be much weaker, today, without these checks and balances that have saved us from destruction by the occasional bad leaders that are bound to come into control repeatedly over hundreds of years. We cannot have the safety from bad leaders that these checks and balances give us without also giving up some ability to get big things done quickly when we have great leaders, but the trade-off is still a good one.

For all its difficulties and limitations, this system of government has given the US the stability and staying-power, so far, to prosper fairly steadily over a long time. (Of course, you may strongly disagree that this has been good for the rest of the world, over all, and I welcome a debate with arguments that the world would be better off without any superpowers at all, or with one or more different superpowers than today’s! This isn’t really the main point of the article, though, which is more about what sort of government is theoretically best for nations in general, and what sort of expectations are realistic for Barack Obama, in particular, to make big things happen quickly in the US and in the world.)

So, I’ll begin with the theoretical, legal powers of the US president:

• The president serves four-year terms, after each election, but can only serve at most eight years in all – the president, since the twenty-second amendment to the constitution, ratified in 1951, cannot be elected more than twice, placing a limit of eight years on the maximum period of time that any one US leader can hold presidential control.
• The president cannot create laws – only the US Congress does that, for US federal law. The president can, however, block new laws from being passed, with a veto. (Note the constitution’s emphasis on giving each branch power to block the other branches – when in doubt, the constitution is designed to block action, rather than to allow it!) The US Congress has its own check on the power of the presidential veto, however, and can override a president’s veto with a two-thirds vote from each of the houses (Senate and House of Representatives) of Congress. (When I write of “laws,” here, I do not just mean definitions of what is a crime – most “law” in the US has nothing to do with defining crimes; laws include rules that businesses must follow, actions that the departments of the federal government must take, tax laws, and the federal budget, which determines government spending in considerable detail.)
• The president appoints the “cabinet,” the people who run the various departments of the government, day-to-day, and the president has power to fire these cabinet members if they do not follow the president’s wishes. The Senate, however, must approve by majority vote each of these appointments. In fact, even a minority, such as the 41 (out of 100) Republican senators can block these appointments, if they are determined enough, because in the Senate there is a rule that it takes 60 votes to end debate on most questions that the Senate decides, so Obama cannot appoint anyone to the cabinet who the Republicans thoroughly oppose. These cabinet positions, and a large number of other federal government positions also appointed by the president, carry a lot of power, even though theoretically these appointees must do exactly as the president wishes, else they can instantly be fired by the president, because the president simply does not have time to know everything that goes on in every department, and doesn’t have the time to worry about every detail, even though these “details” add up to an enormous amount of power! (It also looks bad for a president to fire cabinet members too often, since he chose them, after all, so in practice presidents don’t do this lightly in the middle of a term, although they will sometimes encourage a cabinet member to “resign” over some excuse like “wanting to spend more time with my family,” so everyone can save embarrassment. Although the president has direct power to hire and fire several hundred top-level political appointees in charge of the departments of the government, beneath these top-level appointees there are hundreds of thousands of US-government “civil-service” employees, who were hired based on their education, test-results, and other non-political qualifications, and who typically remain in the government through long careers lasting many presidential terms, serving under presidents of both parties. These employees make most of the detailed, day-to-day decisions that affect common citizens interacting with the government, and it is quite difficult, in practice, to change the long-established directions that these huge bureaucracies follow. There are specific, long-established laws that make it very hard to fire these civil-service employees just because they do not please their political masters, and that make it harder to hire political cronies into these civil-service positions. (There was recently a big controversy, however, when the Bush administration appeared to have hired and fired US prosecuting attorneys based more on their willingness to prosecute political enemies than on their legal qualifications, which ran violently against the Justice Department’s strong tradition of keeping politics out of criminal prosecutions.)
• The president appoints US Federal judges, including the “justices” of the US Supreme Court (which has nine justices), whenever existing members leave their positions. These are long-term positions, though, (Appointments are for life, in the case of the Supreme Court.), so no single president gets to appoint a majority of the court members, and in a single four-year term a president typically will only appoint zero, one, or at most two new supreme-court justices. Note, too, that most court action in the US takes place in state-run courts, dealing with state laws and lawsuits, and the president has no direct influence on these courts at all. Like the cabinet appointees, the judicial appointees by the president must be approved by a majority of the US Senate, and even a 41-vote minority can block these appointees if they are determined to do so. In recent years, this has happened a lot, as the party opposing the president has blocked many judicial appointees they think won’t favor their views of the law. Although no president gets to appoint a majority of the judges, those they do appoint typically serve for a long time, so this power lasts longer than they remain president, if they choose their appointees carefully. There is a strong tradition in the US courts, however, not to use the courts for blatant political gain, and judges do not seek the advice of the president who appointed them, and often end up making decisions that the president does not like. Unlike the cabinet appointments, the president cannot “undo” judicial appointments by firing the judges they earlier appointed – once the Senate approves them, it is almost impossible for anyone to remove them from office, however much they displease the president. (Congress can “impeach” federal judges and Supreme Court justices for important crimes, but this requires a majority of the House of Representatives to begin the impeachment, and a two-thirds majority of the Senate to remove the judge, and this is very rare, and the president has no say in impeachments at all, even if it was that same president who appointed them!)
• The president is the absolute commander of the US armed forces, the army, the navy, the air force, the marines, and the US coast guard. Any member of the US armed forces who does not follow a legal order from the president is guilty of a very serious crime, and is likely to suffer very serious consequences, so the US military takes the authority of the US president very seriously. The only legal checks to this power are that the president’s orders must be legal, and only the congress can declare war or can approve additions to the budget needed to fight a war, over the long run. (Lately, though, the US has not bothered with declaring the wars it has fought.) In theory, this power to command the military is enormous, and you might think that it could threaten the other branches of the government, who command almost no physical force, at all, by comparison. In practice, the power to command the US military is enormous for purposes of threatening other countries, and it also prevents the US military from threatening the president, himself, but the US military is of almost no use within the US, for purposes of threatening internal enemies of the president, including the opposition in other branches of government, because no general (I believe) would view an order to threaten or harm a political opponent inside the US federal government as a legal order, and any such order would not be obeyed (I believe). My opinion on this is only theoretical, though, because, as far as I know, no US president has ever tried to abuse his control of the military in this way – the tradition against this sort of abuse of presidential power is very strong.
• The president has the power to negotiate treaties with other nations, but these treaties must be ratified by a two-thirds majority of the US Senate to have the force of law, and presidents have often failed to gain ratification for the treaties they negotiated. (Unratified treaties are often followed by presidents, informally, however, even while they have no legal force.)
• Any action taken by the US president that violates the US Constitution, in the opinion of the US Supreme Court, can be declared unconstitutional by a majority vote of the US Supreme Court, and the orders of the Supreme Court, to correct unconstitutional actions must be followed, legally. (Failure to follow these orders would be grounds for the congress to impeach the president, removing him from office, and these Supreme-Court orders would also be legal cover for anyone, including the US military, to refuse orders from the president as illegal. In recent history, George W. Bush came closest to openly defying the US Supreme Court, when he failed to follow court orders regarding legal treatment of so-called enemy combatants, although even there the defiance was more a matter of taking longer than was reasonable to follow those orders, rather than openly declaring that the Supreme Court had no authority to force presidential actions. So far, the principle that no one may override the Supreme Court for any reason appears to be very strong in US law, although this authority depends more on moral persuasion and a tradition of following the law than it depends on physical force, because the Supreme Court commands very little physical force.

Thus, the power of the US government has major legal limits, and the legal power of the US president to control the US government has even more limits. Beyond these strict legal limits, however, are even more important practical limits to the president’s power:

• To do almost anything major, in the long run, requires the cooperation of the majority of the House of Representatives, and at least a majority of the US Senate. (It also requires that the US Supreme Court not declare that the action is unconstitutional.) No matter how courageous and altruistic the president might be, the majority of the US Congress is unlikely to support the president’s direction unless that direction is at least moderately popular with the voters, since they are largely motivated to hold onto their positions of power and prestige for many elections to come. Therefore, although the president can certainly take individual actions that are legal but unpopular, within the legal limits above, each of these actions costs the president “political capital,” diminishing the president’s power to do other unpopular things in the future, as it costs the president the support of congress that is so essential to doing anything major. (There is another side to this coin, however; although the president cannot lightly defy the wishes of Congress, if he wishes to retain real power in future questions, neither can Congress lightly defy the wishes of the president! Theoretically, no law passes Congress unless a majority of both houses of congress want that law, but in fact many laws pass because the president persuades some of the members to vote for a law he wants, even though they dislike the law, in return for future favors. For example, a senator might mildly dislike a new law, which is mildly unpopular in her state, but that same senator might realize that another law to be voted on soon would benefit her state enormously, but might be vetoed by the president (who mildly opposes that law) if the president did not owe that senator a favor for her cooperation on the first law. In this way, both politicians, the senator and the president, may get their way on two different laws that they very strongly favor in return for giving up their preference one the other laws that they don’t feel nearly so strongly about. To many people, “compromise,” such as in cases like this, is a sort of dirty word in politics, but I disagree. Imagine a two-person democracy, with just you and I, that required a majority vote for anything to happen. One day, you wanted a law that would bring you a hundred dollars-worth of benefit at a cost of five dollars from me, and the next day, I would want a law that brought me a hundred dollars worth of benefit at a cost of five dollars from you. If we both compromised, and traded favors, both new laws would pass, and we would both be ninety-five dollars better off, but if we both refused to compromise, and decided each choice according to our individual best interests, we would both lose this benefit. With intelligent politicians looking out for the voters’ interests, according to their best estimates, political compromises are no different, and can also lead to everyone (well, most, anyway) tending to come out ahead as well.)
• Political choices always involve trade-offs – some benefits in return for some costs, and many of the benefits, and most of the costs, especially future costs of future side-effects of today’s decisions, are horrendously difficult to predict, even with perfect information, and the president, however intelligent he may be, is one human being, with very limited information, and very limited time to devote to any one question. Consider a single political question, the economic policies of President Franklin Roosevelt during the Depression: Even long after the fact, with vastly more complete information than Roosevelt had, and with decades of careful study dedicated to just this single question, economists and historians can’t even come close to agreeing which economic policies helped, and which ones hurt, and whether the overall effect of the policies was very good, very bad, or somewhere in between, compared to the many alternatives. The president, like all political leaders, is not the messiah, not an angel, not a prophet of God (as President Obama would be the first to agree, on all counts)! As a practical matter, even the strongest, most dedicated president can’t usefully spend more than 18 hours per day learning the facts and making decisions – already at 18 hours per day the harm of fatigue would likely outweigh any benefits of spending still more time doing the job. The best presidents have skill at “choosing their battles,” spending time mainly on the most important questions, and delegating the rest, hopefully to a well-chosen cabinet and advisors, but without first taking the time, it is very hard even to predict which questions really are the most important!

Beyond the strictly formal, legal powers of the president are less-formal powers that might actually be more important. Unofficially, the president is the leader of his political party – members of his party in the Senate and in the House of Representatives find it very difficult to openly defy the president’s wishes on important matters, if they do not wish to lose all influence within their party. This is especially true while the president is popular, and is especially true while the president still has years of future power left, during his first term (when he is eligible for reelection) and early in his second term (if he is reelected). When the president’s party (as is the case now, and as was the case for George W. Bush, during his first 6 years in office) holds a majority of the Senate and the House of Representatives, this power over his party is especially important. Even the opposing party can find it hard to defy the president’s wishes if the president can use his so-called “bully pulpit” to persuade the voters that he is right on some key matter, and that they should vote out any who oppose him.

The most important powers, for presidents with the wisdom to use them, are powers of persuasion and leadership. Leadership is a key, here; a leadership position does not just call for a leader to respond to a series of questions put by others, like answering constrained questions on a school test – “Do you approve or veto this law?, Whom do you appoint as Secretary of State?, as Ambassador to Egypt?, etc.”! (A president could do just this, and no more (and we might hope for no more from a really bad president, who would lead in the wrong direction, if he showed more initiative), but such a president would accomplish only a tiny fraction of the good possible with real leadership! Instead, the “test questions” faced by the president are extremely open-ended, more like, “What government actions are needed to restore the US economy, and to make repeats of this economic disaster less likely, and how can Congress be persuaded to pass the right laws to make these actions happen?” and even, “What questions of US government are so important to our future that I should be paying them most attention, without letting myself be distracted by the questions that matter much less in the long run?”) Within the US, no single person is better positioned to lead, and to make his voice heard, and to change people’s minds on important questions, then the president. A well-respected, popular president (as long as he can hold the good opinion of the people) can move the American people more than anyone else, leading the people in directions that they would be reluctant to go (or might not even think to go) without a persuasive voice to make the case for new moral advances. In the fifties and the sixties, I believe, the leadership of Presidents Truman, Kennedy, and Johnson helped bring major changes in American attitudes about race. These same presidents helped change laws regarding race (which passed Congress because these presidents were popular enough, and persuasive enough to the voters, that congresspersons mainly decided to follow the president’s lead), but these legal changes, alone, would not have lead to the changes in attitude that later made it possible for Obama to win the freely-given votes of a majority of American voters. (To be sure, other leaders were even more indispensible to these changes in attitude, such as Martin Luther King, Jr, and without these other leaders, and without the American people and culture being at least somewhat ready to be led in this direction, no amount of presidential leadership could have made this difference.) Note, however, that these changes in people’s attitudes happen very slowly, generally over decades, so if you are looking for changes in American attitudes as a result of Obama’s leadership, you might not notice major changes (if you notice them at all, since they happen so slowly!) until well after he no longer serves as president!

Correctly used by a really persuasive president with good sense, these powers of persuasion can eventually lead members of the other two branches to follow willingly (so long as the direction taken is not too radical in the context of mainstream American political ideas), so that the president’s formal, legal powers to force decisions against the will of the other two branches become almost unnecessary. (Of course, without these formal, legal powers, his powers of persuasion would be much reduced!)

Outside the US, this power of persuasion is more open to question. In the US media, with self-flattery, they like to call the US president “the leader of the free world,” but leaders of other nations have their own ideas about whether they wish to follow any leadership at all from outside their nation, and, if so, which nation’s leadership. Of course, the voices of leadership from the most powerful nations carry more loudly in international questions, and the US is undoubtedly a very powerful nation, economically and militarily. (See my earlier Pakspectator article, American Control, though, for my thoughts on the limits of this power.) As a matter of which nations other nations would prefer to follow, I suspect that nations prefer to follow those nations that are already leading roughly in the directions they would go, anyway, so America’s friends may sometimes speak of American world leadership, while those nations that dislike American directions will deny it. All in all, I really wonder how much the American presidential power of persuasion applies outside of the US, and I would welcome your comments on this matter.

In all, given enough time, a US president can accomplish enormous things, but the limits to what he can accomplish are even more enormous, and it is almost impossible to accomplish much of real significance quickly. Just two months into Obama’s presidency, some commentators are already expressing frustration that he has not accomplished more, but I think they have a very unrealistic picture of the limits to his powers, both as a president and as a human being. I am very hopeful that Obama will prove to be a very fine president, perhaps even a great president, in the end, but it will likely be years before this becomes clear, at best, and the changes he brings will mainly be slow, greatly limited by those who oppose those changes, and full of necessary compromise.