The Supreme Test

As the world prepares to hear the Supreme Court’s ruling on ObamaCare it is worth considering the true nature of power in the United States

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All eyes are on the Supreme Court and its ruling
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Dr. James Boys
On 27 June 2012 09:48

As President Obama prepares to hear from the Supreme Court on the constitutionality of his health care reforms he will be reminded that the President of the United States is but a single player in American political life. Despite the media attention on the Oval Office, the executive branch of government remains one of three branches in the U.S. system and we overlook the Congress and the Supreme Court at our peril if we are to appreciate the true nature of power within the United States. 

The President of the United States was originally conceived by the Framers of the American Constitution to be a secondary figure in American politics, yielding ultimate power to the United States Congress. That this was their intention is clear from the very manner in which they wrote the Constitution. The office of President was not dealt with until Article One had clearly outlined the overwhelming powers of the Congress.

Whilst the character of the presidency will differ from one occupant to the next, two criteria remain: Firstly, whoever the President may be, the Constitution bestows upon him the roles of Chief Executive, Commander-In-Chief of the Armed Forces, Chief Diplomat, Chief Recruiting Office for the Executive and the Courts, and Legislator.

Secondly, despite the millions of people that form the Federal Government, the President is the only national unifying force. Uniting the Head of State and the Head of Government in a single office, the president has extraordinary powers, but must wield them under extraordinary limitations.

For despite the power that comes with the presidential responsibilities, there comes the close eye of the United States Congress and the Supreme Court.

The President may be Commander-In-Chief, but he requires Congress to declare war. The President may pass laws, but the Court can declare them to be unconstitutional. The President may be the chief recruiting officer to the Executive and the Courts, but many of his recommendations require confirmation by the Congress. The President may nominate Justices and even Chief Justices, but once appointed, they are beholden to no one.

The president’s problems are compounded further by the absence of a strong party system. As Congress grows ever more fragmented, party leadership becomes all the weaker, ensuring that the coalition building is essential for legislative success is now more difficult.

In Federalist Paper No. 48, James Madison wrote of Congress: “Its constitutional powers being at once more extensive, it can with greater facility, mask the encroachments it makes on the co-ordinate departments.” Considering the accuracy of his prophecy, it would be intriguing to speculate as to what Madison would have made of today’s Congress.

Since 1945, Congress has extended its use of appropriations and investigations, and has become increasingly involved in aspects of government, which had previously been the exclusive domain of the Executive Branch. Relations between the Congress and the Presidency have become increasingly strained since the Watergate hearings, which brought the downfall of President Nixon.

The sins of Richard Nixon, coupled with the humiliation of the Vietnam War resulted in new Congressional restrictions upon the Presidency. As such, the Congress enhanced its own power and diminished that of the President.

The rather serene nature of the Supreme Court (coupled with its Supreme power) has seen it remain largely outside of the political sphere except in the rarest of circumstances, such as those today and as the United States found itself in following the 2000 election. Certainly no presidency in recent memory has been foolhardy enough to challenge the sovereignty of the Court.

The separation of the powers lies at the very heart of the American political system. Over the years however, the relationship between the Presidency, the Court and the Congress appears to have been based les on a separation of powers and more upon a separation of political principles. This resulting clash of political wills results in the condition known as Gridlock.

With Congress and the Presidency fighting for political domination, the only true victims are the American public who fail to benefit when legislation is vetoed by the President, filibustered by the Congress, or declared unconstitutional by the Court.

In an effort to project themselves as defenders of the public interest, the presidents will claim to see policies in terms of the national interest, elevating themselves above party, special interests and even ideology. Ultimately, the President must govern effectively.

In his decision making process, the president will have to take into consideration a plethora of opinions. Ultimately however, he must act, notwithstanding the disapproval of certain constituencies. The making of such decisions is clearly hindered in times of recession or when, even when the economy is growing, the budget deficit is rising. With tax increases now akin to political suicide, and the knowledge that spending cuts usually affect those that are already suffering, the main way to increase government spending is by borrowing. This however merely increases the budget deficit.

As a result of this stalemate, the notion of a Zero Sum Society has been perpetuated: When federal spending is constant, distributional questions become a zero sum game; when one person gains, another must lose.

No single individual has the burden of making these distributional decisions other than the president. It is he alone who is responsible for producing an annual budget amounting to over $3,500 billion. His power and responsibilities therefore, are little short of remarkable.

However, as President Clinton testified, “The president does not govern alone. I am more like the captain of a ship. I can steer it, but a storm can still come up and sink it. And the people that are supposed to be rowing can refuse to row.”

Clearly the field of domestic politics is a bloody one, upon which presidents are fearful of defeat. The cultural and geographic diversity within America is a major reason for the difficulty in domestic agendas. Whatever the President’s decision may be, some will lose out. With lobby groups and political opponents waiting to make the most out of such misfortune, the president’s role in domestic affairs is one fraught with trouble.

The notion that the presidency is “the most powerful office on earth” conceals the extent to which the presidency now enjoys less freedom of action than in the past. The presidency is a constantly evolving office, which is redefined by each new occupant.

Barack Obama has placed health care reform at the heart of his presidency. The coming days will reveal the extent to which he is able to convince the Supreme Court of its constitutionality. Regardless of their decision, the fact that the nation and the President of the United States can do little now but wait to witness the outcome reveals the overlooked reality of political power in Washington: The final decision rests not with a directly elected member of Congress, nor with a President indirectly decided upon by an Electoral College, but with nine individuals elected by, and answerable to, absolutely no one.  

Dr. James D. Boys is a Contributing Editor to The Commentator. He is a Visiting Senior Research Fellow at King's College London, Associate Professor of International Political Studies at Richmond University in London and a Senior Research Fellow at the Global Policy Institute. Visit his website and follow him on Twitter @jamesdboys

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