Question members, the executive branch vests its power in

Question
1: Presidential Advantage

Unity in the executive branch
gives the president a clear advantage over Congress, a collective branch of
government, because out of necessity, it precludes gridlock and ensures speedy
policy implementation. Whenever there is gridlock in Congress, the executive
branch and Judiciary become more important branches of government, because the
unilateral control granted to the executive branch is prone to distort the
balance and separation of powers between it and Congress, and the
responsibility falls on the Judiciary to keep the executive in check.

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            In
Federalist 70, Hamilton makes the astute observation that “wherever two or
more persons are engaged in any common enterprise or pursuit, there is always danger
of difference of opinion”.1 Between two houses and 535 members,
Congress is ripe with disagreement, as it very well should be. Every bill
proposed is supposed to be to subject intense scrutiny and debate before it is
voted on to ensure that bad laws do not pass. This system sacrifices efficiency
for stability. Herein lies the disadvantage of Congress compared to the
executive branch. Disagreement and dissent are inherently necessary in the
legislature, whereas as disagreement and dissent in the executive would prove
disastrous and “frustrate the most important measures of the government, in the
most critical emergencies of the state”.1 While Congress is
inescapably handicapped by warring opinions from its many members, the
executive branch vests its power in a single member, the president, to execute
and enforce the laws created by Congress, no debate necessary. The president
has a clear advantage over Congress, because of the sheer speed he or she can
implement policy, using their unilateral control of executive powers. For
example, Abraham Lincoln singlehandedly issued the Emancipation Proclamation on
January 1, 1863, immediately changing the federal legal status of all slaves in
the South. In comparison, it takes Congress an average of 263.57 days to pass a
bill into law.2 Unity in the executive ensures smooth operation of
the country and gives the president a clear advantage over Congress, which
shares legislative powers between two houses and 535 members, ensuring a
multitude of diverse opinions, but also hampering its ability to act swiftly
and decisively.

Hamilton
recognized that “the differences of opinion, and the jarrings of parties in
the legislature, may sometimes obstruct salutary plans,” but thought that the
multitude of diverse opinions would promote “deliberation and circumspection”.1
Today, unfortunately, obstruction appears to be the rule rather than the
exception. Congressional gridlock has doubled since the 1950s and “deliberation
and circumspection” have been thrown by the wayside in favor of labyrinthine
omnibus bills that bundle several pieces of often unrelated legislation into a
single document that is passed or rejected in a single vote, quelling debate
and preventing serious analysis of individual pieces of legislation.3
As a result, Congress is even weaker and more ineffective than already
designed. In response to the apparent ineptitude of Congress, the executive
branch has often tried to make up the difference, testing the separation of
powers. The executive branch’s frustration with Congress’ ineptitude was succinctly
captured in President Obama’s famous “I’ve got a pen and I’ve got a phone”
speech, in which he described the executive branch’s willingness to take action
when Congress would not.4 In the aftermath of 9/11, President Bush
instructed the NSA through executive action to conduct warrantless surveillance
of the American People without congressional approval. Following congressional
refusal to fund the subsidies described in Section 1402 of the Affordable Care
Act, President Obama appropriated the funds himself through extensive executive
action. Frustration with congressional gridlock is understandable, however, it
is not an excuse for the executive branch to unilaterally create its own
legislation.

Whenever there is congressional
gridlock, the Judiciary bears sole responsibility to check executive overreach.
Although not nearly as inefficient as Congress, multiple court rulings and
lengthy appeals in the Judiciary hamper its ability to regulate the swift,
unilateral power of the executive branch. In Bush’s case, a federal judge
declared the surveillance program unconstitutional in 2006, because the program
lacked any judicial oversight or independent review. However, the decision was
overturned in a federal appellate court on a technicality. The plaintiffs could
not prove they had been specifically targeted by the program, but the
ideological argument remained unchallenged. In Obama’s case, Judge Rosemary
Collyer ruled that the appropriations could not be inferred and were therefore
illegal, however, she stayed her ruling pending review. President Trump has
since ended the subsidies. From these examples it is apparent that the
president has an advantage over Congress, however the negative implication is
misleading. This advantage results in benefits, such as speedy policy
implementation and gridlock prevention, that allow the government to run as
efficiently as possible.

 

 

Question
2: Republic

In Federalist 39,
Madison defines “a republic
to be… a government which derives all its powers directly or indirectly from
the great body of the people; and is administered by persons holding their
offices during pleasure, for a limited period, or during good behaviour”. 5
It is a form of “government
in which the scheme of representation takes place” as opposed to a direct
democracy, in which citizens vote individually on all laws and policies. Direct
democracies “have ever been found incompatible with personal security or the
rights of property…and have in general been as short in their lives as they
have been violent in their deaths”.6 A republic corrects this
incompatibility, creating representatives as a check and balance on the
mercurial behavior of the citizenry.

            In
Federalist 39, Madison contends a republic is conformable to the Constitution,
because the Constitution proposes that the great body of the people directly
elect members of the House of Representatives, while indirectly electing members
of the Senate and the president, all of whom are subject to a reasonable
duration of tenure between two and six years. This form of government closely
adheres to republican principles of representation described earlier. In addition, the Constitution “conforms
to the republican form,” because it preserves aspects of “the federal form,
which regards the union as a confederacy of sovereign states,” without fully
embracing the concept of a “national government, which regards the Union as a
consolidation of the States”. 5 The foundation of the Constitution
is federal, ultimately deriving its powers from the people, and only the
operation of these powers is national. As a composition of both, the
Constitution maintains its republican character.

Perhaps the most decisive proof
“of the republican complexion of this system” is in the Constitution’s
“absolute prohibition of titles of nobility, both under the Federal and the
State Governments”.5 This provision of the Constitution ensures that
the government “be derived from the great body of the society” rather than a
“favored class…of tyrannical nobles” guilefully posing as a republic, like in
Holland, Poland, and Venice at the time.5 Ostensibly, the
legislative branch most represents the “great body of the people” through the
direct election of all Congress members. The executive branch in turn
indirectly represents the “great body of the people” by carrying out the laws
Congress passes and nominating members of the Judiciary, and then the judicial
branch, while arguably the most isolated, represents the “great body of the
people” by interpreting laws and upholding the integrity of the Constitution
through judicial review. While it would be expected that the branch of
government most directly elected by the populace would hold the people’s trust
the most, the inverse is currently true. Since 2000, the American people have
placed their trust most in the judicial branch and least in the legislative
branch. 7 Gerrymandering, special interests, and media bias are to
blame. They have created a sort of “favored class” which has eroded the
public’s trust in the legislative and executive branch’s ability to represent
the will of the people. In contrast, constitutionally designed isolation from
politics appears to have been beneficial for the judicial branch in maintaining
the trust of the people and representing their will in government.

“The tenure of the highest offices
is extended to a definite period, within the legislative and executive departments,
to a period of years” in order to hold legislators and the executives accountable
to their constituents. 5 If they do a good job representing the
people and keep their campaign promises, they are likely to get reelected. If
they no longer hold popular views or betray the trust of the people, they are
likely to be replaced by another candidate. “The members of the judiciary
department are to retain their offices by the firm tenure of good behavior”,
because it is “the best expedient which can be devised in any Government, to
secure a steady, upright, and impartial administration of the laws”.5,8
Judges serve for life rather than for a limited time, because they need to be
independent from the volatility of politics “to be considered as the bulwarks
of a limited Constitution against legislative encroachments” on “the rights of
individuals”.8

Madison defines a republic as a
representative form of government that derives its power from the people and
through a system of checks and balances, is self-regulating in nature. The
constitution is conformable to a republic, because it embodies these
principles.

 

Question 3: Factions

James Madison was more concerned
with the tyranny of the majority than the tyranny of the minority. In
Federalist 51 he stresses the “great importance in a republic not only to guard
the society against the oppression of its rulers but to guard one part of the
society against the injustice of the other part”.9 Further adding
that “if a majority be united by a common interest, the rights of the minority
will be insecure”.9 By virtue of definition, the minority interest
is less prone to tyranny and more susceptible to abuse, because it lacks the
necessary wide-spread support to act in a tyrannical manner or defend itself
from the majority in case of assault. Madison proposed a republican form of
government rather a democratic one to address the concerns of a majority
“mob-rule”, in which “there is nothing to check the inducements to sacrifice
the weaker party or an obnoxious individual”. 6

Madison contended our majoritarian
system would control the effects of factions while protecting the views of
minorities. He argued “that the same advantage which a republic has over a
democracy, in controlling the effects of faction, is enjoyed by a large over a
small republic”, because the larger the republic, the “greater variety of
parties and interests” are present.6 Madison believed this would
make “it less probable that a majority of the whole will have a common motive
to invade the rights of other citizens”.6 In effect, Madison argued
that the sheer diversity of thought in a large republic would naturally result
in the citizenry performing mutual intellectual checks on itself. Madison’s
argument relies on the optimistic premise that in a large republic “the
suffrages of the people being more free, will be more likely to center in men
who possess the most attractive merit and the most diffusive and established
characters,” and as a result, representatives will supposedly possess
“enlightened views and virtuous sentiments that render them superior to local
prejudices and schemes of injustice,” precluding demagoguery.6

Despite frequent blunders and
setbacks fueled by demagoguery, our majoritarian system of government has
ultimately expanded protections for the minority, particularly for African
Americans, through the 13th, 14th, 15th, 19th,
and 24th Amendments, the Civil Rights Act of 1964, the Voting Rights
Act of 1965, the Americans with Disabilities Act of 1990. The end of the Civil
War brought about the passage of the 13th, 14th, and 15th
Amendments in the 1860s, which respectively abolished slavery everywhere in the
United States, made former slaves and any person born in the US a citizen and
granted all citizens equal protection under the law, and made it illegal to
refuse any citizen the right to vote because of their “race, color, or previous
condition of servitude”.15 However, nearly a century of brutal
discrimination under Jim Crow laws passed before African Americans and other
ethnic minorities received equal treatment under the law. The 24th
Amendment was ratified in 1964, and abolished the discriminatory poll tax,
designed to prevent poor blacks from voting in the South. The Civil Rights Act
of 1964 passed soon thereafter and banned segregation and discrimination on the
grounds of race, religion, or national origin. The Voting Rights Act passed one
year later and banned discriminatory voting practices, including literacy
tests. The 19th Amendment guaranteed women the right vote when it
was ratified in 1920. The Americans with Disabilities Act was passed in 1990 to
prohibit “discrimination against individuals with disabilities in all areas of
public life”. 11 While the United States has made great progress
since 1776, protections for the minority are yet to be complete.

In conclusion, Madison was mostly
concerned with the tyranny of the majority. 
He contended that our majoritarian system of government would control
the effects of factions through its sheer size, ensuring a multitude of diverse
opinions, and as a result, protecting the views of the minority. Protections
for the minority have been widely expanded under our majoritarian system of
government.

 

 

Question 4:
Polarization

Polarization in
the electorate drastically affects decisions in Congress, because parties are
pushed towards their ideological extremes, few or no compromises are tolerated,
and as a result, legislators vote almost exclusively along party lines.
Polarization in Congress affects polarization in the electorate, because the
election of new legislators perpetuates congressional inefficiencies rather
than alleviating them, congressional approval is linked to party
identification, and morally bankrupt members of each party are defended by
their own, sacrificing all basic standards of morality.

Polarization in
the electorate is usually representative of a growing divergence of public
opinion along ideological lines. 12 In response to shifting public
opinion, legislators have increasingly moved towards their respective extremes.
This divide has been growing in the House of Representatives and the Senate for
nearly three decades now.13 As a result of increasing polarization
in the electorate, any concession to the opposing party is considered to be a
betrayal, so compromise has been abandoned entirely. Legislators who are
willing to compromise face the possibility of upsetting their polarized
constituency, putting their reelection in jeopardy. As a result, legislators
tend to vote almost exclusively along party lines rather than attempting to
work with the other party and find a compromise.14 The complete and
total lack of bipartisanship in Congress is perfectly illustrated by how
Democrats and Republicans handled the Affordable Care Act legislation.
Democrats rammed the Affordable Care Act through Congress in 2010 with
virtually no support from Republicans members. Republicans retaliated in 2013
by refusing to agree on any funding bill that would appropriate funds for the
Affordable Care Act, essentially holding the government hostage and leading to
a government shutdown.

Those in the
electorate who are frustrated with the inefficiencies of a polarized Congress
often demand that a new, often more extreme, legislator is needed. In reality,
the opposite is needed. Experience, credibility, and connections take time to
build in Washington and are crucial during periods of congressional gridlock.
Stability of representation rather than change would likely prove more
productive in such circumstances. According to the Brookings Institute,
congressional approval is linked with party identification.13 When
congressional polarization is high, the party currently out of power stands to
benefit most if congressional approval ratings are low. The party out of power
then blames congressional inaction on the party in power, without admitting to
any fault on their own part. As a result, constituents are more likely to
identify with the current opposition party whenever the party in power has low
approval ratings.

Several political
figures from both parties were recently credibly accused of sexual harassment
and sexual assault. Did Democrats and Republicans join together to condemn
something so obviously immoral? They decided to both defend their own party
members and attack the others. Weeks later, some Democrats and Republicans have
wisely backtracked on their previous defenses, but some remain planted where
they are. The polarization in Congress has apparently become so great that the
electorate is willing to ignore credible sexual assault allegations if they
believe that legislator will vote the way they want. The moral depravity is
truly astounding. At some point, decency and integrity must take precedence over
partisan politics.

Polarization in Congress and the
electorate is harmful to the very character of America. Standards are abandoned
in favor of party loyalty. Moderation is forsaken for extremist political
alignment. Until standards and decency take priority over histrionic posturing,
polarization and congressional inefficiency will continue.