09/12/2014 05:56 pm ET Updated Nov 12, 2014

Fixing Our Dysfunctional Government (Part II): A President Too Strong and Not Strong Enough

This is the second in a series of articles on our dysfunctional government. In case you didn't notice, Congress has returned from vacation. Having done virtually nothing for the bulk of the 113th Congress, not much is expected to transpire prior to the 2014 midterm election. There is an interdependence of Congress and the Presidency, which when approached responsibly -- that is, with national, rather than partisan, interests in the forefront, yields constitutionally sound and often practically good result. This is what the framers anticipated: divided exercise of national power where the co-equal political branches would check each other's homework, and the judicial branch would resolve interpretative issues. What the founders did not bank upon was divided power fueling ideological or partisan division to such an extent that no workable government would emerge. This is our current circumstance and it renders our government ineffectual and sub-optimal in performance.

Because of hyper-partisanship, Congress has given little cooperation to the president in the bulk of his domestic or foreign policy. No doubt, the president's opposition thinks this advantageous since it conveys a certain fecklessness about the president. What the Congress didn't bank upon was a president whose energy and commitment to meeting national and international challenge won't take "no" for an answer. The result: President Obama has engaged in a series of work-arounds to support unilateral actions, thereby making the president both too strong and not strong enough.

In the last few weeks, presidential concern has been on ISIS, or if you want to humor the geographers at the State Department, ISIL, indicating the wider territory of the Levant, and not just Syria. It is not self-evident that ISIL has ratcheted up the threat level to the homeland, though one would not know this from the president's assertion that he has all the inherent power he needs to address whatever level of threat ISIL may turn out to be. The traditional idea of actually getting a War declaration when our military may shortly be tasked with dropping munitions into a foreign state is viewed by the White House as optional. Unquestionably the brutal televising of American beheadings goes a long way to letting the president act as he believes necessary based on intelligence, but the thousands of valiant lives wasted along with trillions of ineffectively (if not corruptly) utilized monies dumped on Iraq and our over-extended stay in Afghanistan give the American people standing to object to a requested 5 billion more. Again, traditionally, we would expect Congress to be on its game, but it's neither organized to assist the president nor even evaluate with discernment presidential actions. Stamping one's foot and saying "no, no, no" is not congressional discernment, it is obstruction.

Presidential Fireworks on Immigration Postponed

The failure of the president and Congress to collaborate on meeting external threat is well nigh bizarre, the shouting over the reform of immigration was more anticipated, but equally unhelpful, and given the overlap with our national security, downright dangerous.

Until recently, President Obama had been signaling -- in light of Congress's inaction -- that he would be relying upon little used, and indeed likely nonexistent, presidential power to reform immigration. After multiple promises that he would reform immigration to reflect the impossibility, and frequently injustice, of rounding up 11 or 12 million people and sending them back to their point of origin, the president disclosed a delay in addressing the subject until after the elections to Chuck Todd. Todd who has yet to develop either the confident, challenging, yet friendly, gravitas of the late Tim Russert, nor the bouncy enthusiasm of the now-disappeared David Gregory was much in need of a presidential scoop. He got one -- sort of. While fear of losing the Senate would have been a perfectly tenable explanation, Todd was given the opportunity to swallow, along with the long-suffering Latino community, a healthy dose of presidential dissembling. He simply needs more time, said the president, to make a unilateral executive immigration reform legally unassailable. If he actually means legally unassailable that would indeed take time, as this would require amending Article II and the explicit grant to Congress to determine immigration policy.

In the last column, I noted the observation of Associate Justice Robert Jackson, who had served as FDR's attorney general and the chief prosecutor at the Nuremberg trials, to the effect that "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."

The Congressionally-Blunted Obama Agenda

Justice Jackson is unquestionably correct that interdependence and reciprocity are necessary for a workable government structure, but with the possible exception of the brutal ISIS threat to our security abroad and at home, uniting disparate political factions into a unified front has not been part of the Obama era. Whether it be immigration, or any one of other policies that Barack Obama rhetorically advertised in 2008, and again in 2012 -- bringing greater equality to the tax system, supplying the middle class with some reason to believe that they might again be rewarded for carrying the bulk of civic duty as they raise families, pay mortgages, start new businesses, and sustain an American economy with more than the evening news report of hyperventilating stock indexes skewed by extraordinary profit-taking and corporate manipulations that ensure that the top 1 percent pays nowhere close to its proportionate tax.

Presidential Program without Presidential Power

Knowing the president and the sincerity of his commitment to improving the lives of all American families, including those who are at the margins of society, how is it that his good prescriptions in matters domestic and his well-intentioned, if not always well executed, foreign-policy has simply been ignored? The problem is that, as Lloyd Cutler, the late White House counsel to Pres. Carter, and longtime observer of the American political process once observed:

We do not form a government; we have no overall program at all. We cannot fairly hold the president accountable for the success of fire of his overall program, because he lacks the constitutional power to put the program into effect.

Parliamentary Comparisons

Cutler compared the situation in the United States with that of the United Kingdom, Germany, Japan and Ireland, and he found in each of those democracies, a far greater likelihood of the executive performing and achieving a policy articulated in election campaigns. This is more than just the luck of the Irish or the obsessive meticulousness of the Germans, for as Cutler pointed out, the governmental systems in each of these countries is parliamentary in nature.

Parliamentary systems were rejected by our founders because of our 18th-century concerns with an over-reaching King, George III, who knew how to take resources from his nation's foreign venue -- not unlike the Chinese are doing across the globe and in particular North Africa -- without meaningful improvement or recognition of the contribution made by the distant territory. Adopting the separation of powers, we were concerned with the avoidance of tyranny in the 1700s. Today, inhabiting the 21st century, there is a more immediate need for efficiency and accountability.

Zero-sum choices & The Presidential Program

White House Counsel Cutler thought the problem largely the result of the zero sum allocations that modern governments are called upon to make. Inevitably, he said, goals, like cleaning up the environment compete with energy efficiency, for example. The speculation was that at an earlier time, multiple goals could have been pursued simultaneously because there was less scarcity of resource and less reason for the short-term losers in any given policy choice to align and defeat the common good.

In a parliamentary system, it is the duty and responsibility of every majority member of the legislature to vote for the government's program. Presidential programs may or may not be successful, as President Obama is experiencing firsthand in the various glitches with the Affordable Care Act, but a parliamentary system would have focused on making the legislation work rather than devoting redundant legislative time to its repeal. Maybe parts of the Obama program are wholly unworkable; it remains to be seen. Yet, our experience in the practical administration of the program is greatly retarded by the lack of a political will to have it succeed as far as possible. While partisans seldom say it out loud, no Republican running for office wants the president to succeed. When everything is evaluated in partisan terms, rather than governmental terms, and the House and the Senate are closely divided, and, as they presently are, also in different hands, this is sure prescription for structural dysfunction.

By the way, having been an independent candidate for Congress, I can tell you that the partisan mindset affects every single part of the electoral process. The incumbent Congresswoman in the district that I ran from in California sat out the primary debate after raising over $1.5 million dollars; her fundraising from corporate sources was multiple thousands of mine or her Republican opponent, so why bother to take time to explain the lack of congressional attention to the voter.

No Need to Amend the Constitution

So what is to be done? The Constitution has been amended only 27 times and it would be foolish to contemplate a parliamentary amendment to our governmental structure. It is not however impossible to contemplate various changes in electoral expectations, some of which could be incorporated into House or Senate rules, as well as various state election laws. The aim of all of these changes would be to favor the formation of a government rather than the continued splintering of political parties.

A Balanced, Bipartisan Cabinet

As a matter of electoral preference, candidates for the presidency should outline how it is that they will incorporate the views of the opposing party in their political cabinet. The Incompatibility Clause of the Constitution precludes a member of Congress from serving simultaneously in the executive, but there is nothing preventing a member of Congress from resigning his legislative position. Vacancies in Congress and the Senate are filled in accordance with state procedures and in a variety of ways. It should be possible, however, to enact a uniform state law ensuring that Governors would fill vacancies from the party ranks of a member resigning to serve in an opposing president's cabinet.

To a very limited degree, Barack Obama and a few other modern presidents have held over cabinet officers from an outgoing party. In most cases, as in the continuation of the appointment of Robert Gates to be Secretary of Defense, extending from the George W. Bush administration, into the second term of President Obama, these appointments have been one-offs or rarities. In the case of Gates justified by a perceived need to have a continuation of policy more than an abrupt change in course. Yet, a single member of the opposing party here or there within the cabinet is scarcely enough to discern a return yield of efficiency or persuasiveness. If 40 or 50 percent of the cabinet, however, were to come from the opposing party, the inclinations to defeat a newly elected president's program should go down appreciably. Credit would be attributed where credit was due.

Moderating House and Senate Rules that Provoke Partisanship

The president, of course, needs more than cooperation in the administration of policy; he also needs it in its formulation. Here, changes in House and Senate rules have subverted any inclination to be helpful to a president from an opposing party. Take, for example, the change that goes back some time now to the appointment of committee chairs, not on the basis of seniority, but on the basis of perceived popularity or appeal to often the most extreme fringes of a political party. Relatedly, accountability and efficiency are also undermined when House and Senate leadership no longer has the ability to assign a proposal to a single committee for examination, rather than to multiple committees. As much as I like to see my law students take up public service positions, the vast expansion of legislative staffs further aggravates the fly-specking that invites minor flaws to defeat a legislative effort that by all accounts is reasonably good. The multiplicity of committee process also plays into the hands of single issue groups who can use the defeat in one committee as an absolute block.

External Threats Won't Necessarily Unify

While the beginning of this essay is snarky in tone, justifiably so, given the 113th Congress's dismal record, history teaches us that when confronted by an external threat like 9/11 or profound internal calamity, like the financial crisis of 2008 four or the vast economic dislocation associated with the Great Depression, partisan differences are more readily set aside. Even as the horror of ISIS is great, one can expect an aspect of that unity to be more evident in the final two years of President Obama's administration. Yet, here too, there may be less unity. The shock of the asymmetrical terror enterprise arises more episodically than during the economic and foreign-policy crises of the past. As a consequence, there is less unity of resolve in meeting the fundamentalist threat, as illustrated in the well-meaning but inhibiting, endless litigation over whether privacy is harmed unconstitutionally by preventive efforts to blunt the insurgents.

Advance Formation of an Executive-Legislative Team

A final idea that should not require a constitutional amendment would be to have the parties be obligated by party rule -- again, bolstered by state law, which has authority to affect the time, place and manner of elections -- to designate on the ballot not just a vice presidential teammate, but House and Senate leadership teammates of a prospective president. In theory, these legislative teammates would not necessarily be drawn solely from the presidential candidate's own party or even from the two dominant political parties, but could include to a much greater extent than has ever been true in American history, the independent voice.

Again drawing on my own personal experience, for reasons of civic mindedness and with the encouragement of my students. I recently took up the effort of a congressional campaign. During that effort, more than a few voters expressed total frustration with both parties. "They have both let us down," was the common refrain. They have, but with a little creative thinking, we can create incentives that run strongly in favor of a positive reminder that e pluribus Unum means to draw one out of many, and acting as one nation, may be the only way in which we can effectively confront the challenges of our century.