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Political Dysfunction and the Election of Donald Trump: Problems of the U.S. Constitution's Presidency

18 Pages Posted: 28 Nov 2016 Last revised: 6 Apr 2017

David Orentlicher

UNLV William S. Boyd School of Law

Date Written: November 25, 2016

Abstract

This article discusses a critical, but overlooked, cause of political dysfunction in the United States — the Constitution’s design for the executive branch. Specifically, this article argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems. It fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making.

Of course, this was something the founding fathers thought about and debated. Should we have a single executive or a multi-person executive branch? There were good reasons in 1787 for the delegates to the Constitutional Convention to settle on a single executive. But as our country has changed over time, the executive branch has changed too, and it has changed in ways that have been problematic.

First, the founding fathers expected presidents to view the entire country as their constituency. Unlike members of the House who represent a single congressional district, or members of the Senate who represent a single state, presidents represent everyone. But modern presidents do not really see themselves as representing everyone. Rather, they have become standard-bearers for their parties and their party platforms. At the same time, the presidency has changed in another important way. The modern White House has assumed a far greater amount of policy-making power than envisioned for an “executive” branch that was designed to carry out policies passed by Congress. Indeed, the Oval Office has become the most important policy-making center in the national government. Having a president wield expansive policy-making power on behalf of only one side of the political aisle exacerbates partisan conflict and encourages unwise policy choices.

Drawing on the experience in other countries with executive power shared by multiple officials, this article proposes a bipartisan executive. By adopting a two-person, two-party presidency, we would do much to promote a more effective political system. Giving meaningful representation to persons across the political spectrum would defuse partisan conflict and ensure that public policy reflects a broad range of policy perspectives.

A bipartisan executive would especially do much to address concerns about the election of Donald Trump in November 2016. His erratic temperament and use of fascist rhetoric have highlighted the risk that an authoritarian executive could misuse the enormous power of the Oval Office. A presidential partner would provide an important check on autocratic behavior, especially when the President’s party controls Congress and therefore is not likely to push back against executive decision making.

Keywords: presidency, executive branch, Donald Trump, partisan conflict

JEL Classification: H11, K19

Suggested Citation

Orentlicher, David, Political Dysfunction and the Election of Donald Trump: Problems of the U.S. Constitution's Presidency (November 25, 2016). 50 Indiana Law Review 247 (2016); Indiana University Robert H. McKinney School of Law Research Paper No. 2016-34. Available at SSRN: https://ssrn.com/abstract=2875428

David Orentlicher (Contact Author)

UNLV William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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