David Orentlicher (Indiana University – Robert H. McKinney School of Law) has posted Two Presidents are Better than One: The Case for a Bipartisan Executive Branch (D. Orentlicher, TWO PRESIDENTS ARE BETTER THAN ONE: THE CASE FOR A BIPARTISAN EXECUTIVE BRANCH, New York University Press, 2013) on SSRN. Here is the abstract:
At the Constitutional Convention in Philadelphia on June 1st, 1787, James Wilson first proposed that the executive powers of the United States be rested in a single person. Charles Pinckney seconded the motion, and then, as James Madison reported, “a considerable pause” ensued.
The delegates’ hesitation was hardly surprising. Only recently had they freed themselves from the tyranny of King George III, and they were firmly committed to creating a new government that would not abuse its powers and oppress its citizens. It must have seemed preposterous to replace a hereditary monarch with an elected monarch.
To be sure, the framers invoked important arguments for a unitary executive. While Congress would deliberate, the president would act with decisiveness and dispatch. A single president would bring order and energy to the national government. With the passage of time, however, it has become clear that the founding fathers misjudged the consequences of their choice:
They did not anticipate the extent to which executive power would expand and give us an “imperial presidency” that dominates Congress and that has assumed policy-making responsibilities that were thought to be the province of the legislative branch. They did not predict the role that political parties would come to play and how battles to capture the White House would greatly aggravate partisan conflict. They did not recognize that single presidents would represent party ideology much more than the overall public good. And they misjudged the advantages and disadvantages of single versus multiple decision makers.
Had the framers exercised better foresight, they would have been far less enamored with James Wilson’s proposal for a unitary executive and far more receptive to the alternative proposals for a plural executive that they rejected. Like their counterparts in Europe, they might well have created an executive branch in which power is shared among multiple persons from multiple political parties.
If the presidency is to fulfill the founding fathers’ vision and function more effectively, it needs to be reconceived. This need for constitutional change led me to the proposal for reform that I consider in this book — the replacement of the one-person, one-party, unitary presidency with a two-person, two-party, coalition presidency.
A coalition presidency carries the potential for many important benefits — a balancing of power between the executive and legislative branches, a dampening of partisan conflict in Washington, an executive branch more representative of the entire electorate, real opportunities for third-party candidates to win election, and wiser presidential decision making.
After more than two hundred years with the Constitution’s one-person presidency, it may seem preposterous to suggest a plural executive. But a coalition presidency would be far more faithful to the framers’ view of executive power. They wanted a president with limited authority who would serve as a co-equal with Congress. They also believed that power should be contained by dividing it and requiring it to be shared. A two-person presidency relies on the framers’ structural devices to promote their core values. And by correcting the dysfunction in Washington and making the executive branch operate more effectively, a two-person, bipartisan presidency can be justified even without reference to original intent.
Posted at 7:00 AM