It's not just Trump: The Case for a Weaker American Presidency

                    The American presidency is too powerful.  That is what the Senate impeachment trial and the 2020 presidential election should be about.  Instead, masking this deeper constitutional problem is Donald Trump and his personal abuses of power.

            Yet these abuses of power are not simply the product of one errant person, but part of a longer and deeper pattern of congressional delegation and acquiescence of power to the president that needs to be reversed, especially by the next president of the United States.

            The American Revolution was a product a fear of abuse of executive or royal power. Americans are familiar with the first lines of the opening paragraphs of the Declaration of Independence which begin with “When in the course of human events” and “We hold these truths to be self-evident.”  But the second half of the Declaration is a bill of particulars against the excesses and abuses of power British King George III inflicted upon the colonies.  They included his refusal to “Assent to Laws,” and “obstructed the Administration of Justice.” Our independence and revolt against the king were a continuation of a centuries long battle between parliamentary supremacy and monarchical authority that begin in 1215 with the Magna Charta. 

            So great was the fear of executive authority that in America’s first constitution, the Articles of Confederation, presidential power was vastly limited by a Congress that chose him.  In adopting our present constitution in 1787, while some such as Alexander Hamilton urged for a very powerful presidency, most of the framers sought to limit this office through narrowly defined powers, impeachment, and the concepts of checks and balances and separation of powers. Constitutional framer Charles Pinkey feared giving the president too much military power would “render the Executive a monarchy.” Edmund Randolph feared similar monarchical tendencies in the president if the executive branch were treated as unitary under one person.  James Madison said it had to be clear that the president did not have either legislative or judicial powers.

            As originally designed, the presidency was not, as some wrongly contend today, to be a co-equal branch with Congress and the judiciary.  Constitutional Convention delegate Roger Sherman said that the president ought to be “nothing more than an institution for carrying the will of the Legislature into effect.”  James Madison declared in Federalist Paper 51: “In republican government, the legislative authority necessarily predominates.” The consensus of the Framers and by constitutional design, was that the presidency was envisioned to be a far weaker institution compared to Congress than it has become.  Yet even with the checks imposed on it, some, such as Patrick Henry, feared the new presidency which was given “Extreme Powers; the powers of a king.”

            Multiple factors changed the balance of power between Congress and the presidency. One, emergencies, such as wars, pushed the presidency in a more powerful direction, such as with Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, and Lyndon Johnson.  Two, the constitutional framers never envisioned the rise of a large administrative bureaucracy under the control of a president which would augment executive authority.  Three, Congress over time delegated or acquiesced significant rule making authority and discretion to the president and the executive branch to make rules or issue executive orders that carried the force of law.   All this produced by 1973 as Arthur Schlesinger, Jr. aptly described, an imperial presidency that needed to be constrained.

            As an immediate result of Richard Nixon’s abuses of power Congress enacted, often over presidential vetoes, several pieces of legislation.  The 1973 War Powers Act aimed to limit presidential authority to deploy military force without congressional ascent.  The 1974 Budget and Impoundment Act sought to limit the ability of the president to withhold and divert congressionally authorized funds.  The 1976 National Emergencies Act repealed all existing presidential declarations of emergencies and purportedly circumscribed future orders.  The 1978 Ethics in Government Act required disclosure of financial interests of many executive branch employees.  It also included a provision for the creation of a special prosecutor to investigate the executive branch, addressing concerns stemming from Richard Nixon firing his self-appointed prosecutor Archibald Cox in the famous 1973 Saturday Night Massacre. Other laws, several hundred by estimate, while delegating power to the executive branch, sought to constrain his discretion by giving Congress a one or two-house veto of decisions made.

            At the time these laws looked like limits on presidential authority, but they failed for many reasons.  One, as with the Ethics in Government Act, they exempted the president from many requirements.  Two, Supreme Court decisions favored executive branch power.  In Immigration and Naturalization Service v. Chadha, 462 U.S.919 (1983) the Supreme Court declared the legislative veto unconstitutional.  In N.R.D.C. v. Chevron, 467 U.S. 837 (1984), the Court said that disputes over the meaning of congressional statutes would be resolved in favor of executive branch interpretations. Three, Congress, in the case of the special prosecutor, let the law expire.

            Four, all of these laws still assumed the president would voluntarily comply with invoking the law, such as with the War Powers Resolution, or continued to grant him broad discretion to act.  For example, the National Emergencies Act never defined what a national emergency was.  Finally, collectively all of these laws assumed there would be unwritten norms or conventions that would simply constrain presidential power and that the White House would voluntarily comply with the law.

            Nearly a half-century later, these post-Watergate limits have faded with memory.  The events of 9/11, the financial crisis of 2008, and partisan polarization have all eviscerated the institutional balance of checks and balances of the Constitution.  President’s unable to get their way with Congress, govern by executive order, relying in large part on authority granted to them by Congress. No longer is easy to contend, as Madison argued, that the legislature predominates, we may have the new imperial presidency.

            What is scary is how the impeachment process and Democratic presidential candidates simultaneously attack Trump’s abuse of power but at the same time pledge that if elected would issue a host of executive orders within their first hundred days in office.  For example, Elizabeth Warren has proposed executive orders that cover 21 policy areas.  Amy Klobuchar pledged a list of 100 executive orders she would issue. What would be better to see is a promise among Democratic presidential candidates that if elected that would work to limit presidential power.

            What might some of those new limits be?

            Reauthorize the special prosecutor law to investigate the executive branch.

            Amend the National Emergencies Act to define what constitutes a national emergency and make it clear here and in a new budget act that no national emergency authorizes a president to divert money unless explicitly authorized by Congress.

            Adopt a new War Powers Act that limits presidential authority to initiate first use of nuclear weapons and which requires presidential authority to deploy troops short of congressional declarations of war.

            Amend the Ethics in Government Act to require presidential disclosure of financial interests and taxes, and impose tighter requirements on conflicts of interests, including mandatory blind trusts and absolute bans on personal use of private investments or holdings that conflict with government duties.

            Adoption of a law facilitating and simplifying Congress’s ability to prosecute executive branch officials for failure to comply with document production or appearing to testify.

            As president, direct the Office of Legal Counsel and Justice Department, to reconsider past opinions claiming sitting presidents cannot be indicted for a crime, and urge the Supreme Court to modify its Chevron decision so that disputes in legislative interpretation give priority to congressional intent and meaning.

            Overnight it will not be possible to reassert the balance between Congress and the president.  The impeachment trial in the Senate, as well as the 2020 elections, are a good opportunity to do this.  Yet to do this one needs to realize that the problem is not simply Donald Trump but a larger gravitation of authority from Congress and to the president that needs to stop.

Education, Racial Disparities, and the Minnesota Constitution

Minnesota has one of the worst K-12 racial education achievement gaps in the country and

something needs to be done. Yet contrary to a  recent proposal by former Minnesota Supreme Court Justice Alan Page and Minneapolis Federal Reserve Board President Neel Kashkari, amending the Minnesota Constitution to fix it will do little and potentially make it worse. 

            Minnesota has a persistent problem with race.  The Twin Cities is one of the most racially segregated metropolitan areas in the nation.  The state’s racial financial wealth gap is the worst in the nation.  The racial incarceration gap is among the worst. There is a persistent racial  health care outcomes disparity among the worst in America. Among so many measures Minnesota ranks among the bottom when it comes to racial issues.  The same is true with K-12 education.

            Minnesota’s story when it comes to race and education is an extreme example of what happened nationally.  When the US Supreme Court ruled in Brown v. Board of Education, 347 U.S. 483 (1954) that separate but equal was an unconstitutional principle when it came to segregated schools, many thought that this court case would promote integration and end racial disparities in education.  Instead it produced an intense fight over schools, resulting in white flight from the cities to the suburbs, including in Minnesota, only exacerbating the problem.  Then when the Supreme Court ruled in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) that educational funding disparities did not violate the US Constitution, the Supreme Court effectively signaled it was abandoning the battle to address educational equality.  Over the next 20 years it eventually issued several decisions that eased federal oversight or enforcement of desegregation.  This shifted the battle to the states.

            The state battle was a litigious one.  All 50 states have constitutional clauses that provide some guarantee of free public schools.  The language varies across states, but like many, Minnesota’s original 1857 Constitution in Article XIII, section 1, called for a “general and Uniform system of public schools…throughout the state.”  This language remains the same today.  Over time, litigants used state constitutional clauses to address racial discrimination.  Then there was a second wave of litigation to promote equal funding, then a third to demand adequate funding.   Nationally and in Minnesota this litigation promoted some gains, but the problems persisted.  Thus, it is not completely unreasonable to think that adopting new constitutional language would impose new state mandates and funding in Minnesota, thereby either allowing for new state policies to be developed or new options for litigation to force change. 

            The Page and Kashkari proposed language is:  “All children have a fundamental right to a quality public education that fully prepares them with the skills necessary for participation in the economy, our democracy, and society, as measured against uniform achievement standards set forth by the state. It is the paramount duty of the state to ensure quality public schools that fulfill this fundamental right.”

Legal change can promote social change.  Except improving educational outcomes is more complex than simply passing an education constitutional amendment.

            There are numerous flaws in the constitutional amendment approach.  First the achievement gap is part of a complex process of racial and economic segregation in housing and neighborhoods.  It is also a product of wealth, income, and health disparities.  Students of color are more impacted by these problems than are whites.  No matter how much one tries, it is hard to study and achieve in school with a growling belly, or forced to move constantly because of costly housing, or because parents are working multiple shifts or unable to afford day care.  Performance in school is hugely driven by background socio-economic forces that this constitutional amendment will not address.

            Second, in the very first education classes I ever took my teacher drew a triangle on the board and on one corner wrote school, and then home and community on the other two corners. He then said that students are educated in all three places–school, home, and community–with teachers, parents, and others all working to educate. His point was to drive home that schools and teachers at best are responsible for one-third of all the learning that takes place with students. Teachers cannot teach unless parents and other reinforce what they do and what their children learn in school.  We need to strengthen not just schools do, but also parents and families. A simple constitutional amendment will not do that.

            Three, the proposed amendment measures equal achievement by way of standardized test scores.  Overwhelming research already documents the racial and class biases built into these tests.  Additionally, especially since the days of No Child Left Behind which under President George Bush, the push for standardized testing has proven to be highly flawed.  Teachers are forced to teach to the test and curriculum limits learning to rote activity so that students do well on these exams.

            Fourth, and perhaps the biggest flow, is that the constitutional amendment does something without doing anything.  It puts all the energy into changing the constitution, but it kicks the more fundamental problems down the road.  The language is not a self-executing amendment, but it will require legislative action to define what are “ the skills necessary for participation in the economy, our democracy, and society.”  This mandates important decisions to be made to define these skills, how to construct a curriculum to achieve desired goals, who can teach, and how to fund all of this.

Current constitutional language does not prevent the development of any of this, the problem has not been law but political will.  New constitutional language as suggested by Page and Kashkari too will not guarantee it, but instead would potentially push critical decisions about educational decisions into the courts where judges will have to make these decisions.    It is not clear that this approach is desirable, and it leaves policy formulation up to the distortions of plaintiff legal strategy, and not one necessarily based on promoting overall sound educational policy.

            Finally, stripping the language of uniformity from the current constitution does run the risk of opening the door to more privatized education.  In Florida, the Florida Supreme Court in Bush v. Holmes, 919 So.2d. 392 (Fla. 2006) used the uniformity clause to strike down a voucher system in that state.    Take away a uniformity clause and one increases the risk of undermining public schools. Thus, this language arguably would make the state less responsible for educational performance if it produced more private schools.   All of this is in additional to evidence that charter schools have exacerbated segregation, and at best there is mixed evidence that the school choice models have improved educational quality in Minnesota or internationally.

            Page and Kashkari should be commended for raising the issue of educational achievement disparities and the need for a new public policy approach.  But it is not clear that their constitutional amendment approach will achieve the outcomes Minnesota needs.