In blog post #002 back in June I discussed the state of politics in America, listing the major dilemmas and challenges the two parties face. In this post, I focus on the state of America’s institutions.
In a liberal democracy, institutions play a key role in politics. Political actors (politicians, parties, voters, media, interest groups, etc.) operate in an institutional framework. Although the United States is a mature republic with solid political institutions, these institutions still change over time. In most democracies the constitution lays down the basic institutions of the government, meaning that the most comprehensive institutional change can be achieved by amending or replacing the constitution. The US has had the same constitution since 1788, but it has been amended 27 times. Some of the amendments affected political institutions, like the 17th Amendment, which established the direct election of senators by popular vote.
Statutes and executive orders are a more common way of changing institutions than constitutional amendments. In my previous post on diplomacy, I mentioned the Rogers Act of 1924, which established the Foreign Service. This law reformed how the Department of State functioned as an institution.
The third way of change in political institutions comes from the institution itself. Those who run institutions have a lot of leeway on how they interpret laws or follow established customs. We’ve seen many examples for this recently, for example the US Senate changing filibuster rules for judicial nominations.
In this post I detail how the three branches of government have functioned as political institutions recently, what changes I see, and the challenges ahead.
The presidency has changed a lot since George Washington was inaugurated as the first President of the United States in 1789. The constitution grants limited powers to the president, and these have never been modified. Amendments have addressed the Electoral College, succession, and term-limits, but never the powers of the president. The presidency in the 21st century has a different role than it did back in the early days of the Republic and in the 19th century. Until the 1930s, the Presidency was the subordinate branch of the national government with a few exceptions under Andrew Jackson and Abraham Lincoln. Since the Franklin D. Roosevelt administration, the presidency has gradually become more powerful. As the United States became a global superpower, the President’s foreign policy and military powers were expanded and the president’s domestic role has also grown starting in the New Deal era. By the end of the 20th century, the Executive branch had become at least as powerful as Congress.
As Congress has become more gridlocked, most modern presidents feel they have a mandate and duty to fulfill policy goals even by bypassing the legislature. This trend has continued recently. Joe Biden signed 17 Executive Orders on the day of inauguration. Most of these directives addressed important and divisive issues like immigration, the environment, and the pandemic. Biden ran for presidency on the promise to unite America, but he inherited an institution that is becoming more powerful. More power comes with more divisiveness.
The presidency not only became powerful related to Congress, but the executive branch as an institution has changed also. The Executive Office of the President and the White House Office have become more powerful than cabinet departments. In the White House the President’s work is supported by hundreds of personnel appointed without Senate confirmation. This further reduces the influence of Congress on the Executive. Centralization of power within the executive branch to the White House has been a continuous trend since the 1960s. Legislation still has to pass Congress before the president can sign or veto it, and judicial and executive appointments still need to clear the Senate, but the president sets the agenda of national politics, initiates policies, and provides leadership. Thus, the presidency keeps evolving into the most dominant institution of the federal government.
Congress is the least popular political institution in America. In the last decade, Congress’ approval has never been higher than 35 percent, mostly polling in the low 10s. People see a dysfunctional, partisan institution that is incapable of getting things done. In my opinion, Congress has a very big disadvantage over the other two branches. In the executive branch, there is hierarchy in each agency and institution where the head has the authority to make decisions. The president, as the leader of the executive branch, has widespread powers to sign executive orders and appoint or dismiss people. The Supreme Court has nine members and is generally regarded as an effective body.
Congress however is a more complex institution. America has a bicameral legislature. The Senate’s upper house has 100 members, and the House of Representatives, the lower house, seats 435 members. Moreover, there is perfect bicameralism in the US, which means neither house can overrule the chamber’s decision. Thus, at least 269 individuals have to agree on something in order to form a majority in both houses. This result is slow and ineffective policy making. Partisanship has made passing bills in both houses even more difficult, but there are other developments that have changed Congress recently.
In my opinion, a major change is that the House of Representatives has begun to function like a parliament. First, it has become very partisan as most members vote along party lines. Second, it acts as if the president were responsible to Congress. There is a sharp difference between a parliament and a congress. In a parliamentary system, the legislature is the most important branch of government. The entire political system depends on the parliament. The executive branch is elected by this body, and in many cases members of the parliament make up the senior leaders of the executive branch. In the US no member of Congress can serve in the executive branch, and the President is not elected by Congress, rather elected quasi-directly through the Electoral College.
Yet, in recent years Congress began acting like a parliament. In a parliamentary democracy, once the prime minister’s party loses its majority in the legislature, it normally loses control over the executive branch as well (there are a handful of examples of minority governments) and a new administration takes over. In a presidential system this is not the case. The US president is elected to a four year term, regardless of what happens in Congress. Yet, recently, the lower house of Congress has developed parliamentary traits. The last five presidents began their terms with their party controlling the House of Representatives. Presidents Clinton, Obama, and Trump lost their majority in the House after two years, with George W. Bush being the exception and enjoying a GOP controlled Congress until the last two years of his presidency. Once the opposition party took over the House, it began acting like a parliamentary opposition and two of the last four presidents were impeached by the new house majority (Donald Trump was impeached twice).
The House has used this constitutional tool as parliaments use motions of no confidence. The problem is that a motion of no confidence is meant to remove the head of the Executive for political reasons, while impeachment should only be used to remove the President for “treason, bribery, or other high crimes and misdemeanors”. However, the constitution is very vague about the grounds for impeachment, since only three presidents have been impeached out of 45. But the fact that it was used against Clinton and Trump, and that there were calls to impeach both Bush ‘43 and Obama, supports the trend that the US House is establishing a custom to go after the head of the Executive for political reasons, just as parliaments do.
These efforts have so far been unsuccessful because impeachment in the House does not result in the termination of one’s presidency unless two-thirds of the Senate votes for it. This is a constitutional guarantee to prevent a simple majority in the House from removing the head of the Executive, but the relatively frequent use of impeachment recently signals a change in the House of Representatives’ role.
The US Senate as an institution is changing as well. While the House of Representatives has begun to act like a parliament as a branch of government, the Senate is actually getting rid of some of its parliamentary customs. Like the House, it has become more partisan and as such is disappearing as a long-standing tool for the minority party to influence policy.
In many legislative bodies, obstruction has been an effective way to delay or prevent the majority from passing laws without bipartisan support. Filibuster in the US senate has forced the two parties to compromise on most bills and nominations. In 2013, the Democrat controlled Senate eliminated the filibuster for presidential nominations other than the Supreme Court. As a result, a simple majority is enough for confirmation, lowering the former three-fifth requirement. In 2017, the Republican-controlled Senate eliminated the 60-vote requirement for Supreme Court nominations. Currently, most bills can still get filibustered (one big exception is budget reconciliation), but it is only a matter of time until either party will use the nuclear option and end this tradition. Democrats have been planning to do it, but the tiny majority they have and President Biden has delayed their push. Donald Trump has also called for the end of the filibuster.
Once the 60-vote threshold is gone, the Senate will become a more effective institution. If the President’s party controls both houses of Congress, the policy making capability of the federal government may reach new levels, but another administration with majorities in Congress could also repeal laws quickly. The direction in which Congress is changing may result in higher approval ratings for the institution, but also even more political division.
The judiciary is unique among the three branches of government. Judicial independence is one of the most important preconditions for a liberal democracy, but both the President and the Senate have an indirect influence on how federal courts function. Presidential nominations to federal courts are subject to Senate confirmation. Theoretically, judges are supposed to be nonpartisan, but the courts still heavily function as political institutions because those who run them are appointed by politicians and they make decisions that affect people’s daily lives.
America’s highest court, the Supreme Court, has been especially involved in politics in recent years. The court made high stakes decisions in recent years including campaign finance (Citizens United v. FEC), and same-sex marriage (Obergefell v. Hodges). These landmark cases put the Supreme court into a situation in which political attacks are constant. Interestingly, the growing importance of the courts comes from the dysfunction of the other two branches. As partisanship in Congress prevents major legislation from passing, the Supreme Court has begun to function as a policy-making body. The Supreme Court has ruled in significant, divisive issues before. In 1954, Brown v. Board of Education outlawed racial segregation in school, which was a very divisive decision that time. In the 1960s Congress passed major civil rights legislation, so it somehow reduced the political burden of the decision from the courts. Nowadays people expect the Supreme Court to solve the debate on abortion, gun rights and immigration. This will further politicize the court. The Democratic Party has been wanting to reform the court for years. The fact that the Republican-controlled Senate did not confirm Obama’s nominee Merrick Garland in 2016, but did confirm Trump’s nominee Amy Coney Barrett in 2020, made many progressives want to expand the Supreme Court. Some expect that President Biden might bring the most fundamental change to the Supreme Court’s membership and structure since the Judiciary Act of 1869.
Earlier this year President Biden established a commission to study Supreme Court reform. Given the fact that the President is not adamant about reform and the future of the Democratic majorities in both houses are uncertain past next years’ midterm election, constitutional or legislative change in America’s highest court is unlikely to happen in the short run. What is more likely is that the Supreme Court will become further politicized and we will see fiercer nomination fights than ever.
The executive branch has gotten stronger and become the dominant of the three branches. Even though the United States has a presidential form of government, the President was subordinate to Congress before the 1930s. In the 21st century, political polarization has strengthened the presidency.
Congress has changed a lot as well. It acts more like a parliament. When the President’s party is in control, the legislature functions as a tool for the administration to pursue its policy agenda. When there is a divided government, Congress serves as an institution to block the President’s agenda and symbolically diminish the President’s legitimacy. Partisan division leaves the institution in public opinion as dysfunctional. With possible filibuster reform in the near future, this may change though.
I expect the federal court system to play a very important role in the short run. Currently, Congress is in gridlock and the president has slim chances of fulfilling his legislative promises, especially if the GOP captures the House next year. Meanwhile, major decisions that affect the political and social course of America will be made by the Supreme Court. High profile and distasteful nominations may also take place in case of vacancies.
In this post I only wrote about the three branches of the federal government. Other political institutions are undergoing changes as well. I will share my thoughts on those in a later post.