Drone Strikes and the Imperial Presidency

As today's New York Times observes, the Obama administration's policy of drone strikes provides a troubling example of unconstrained executive power. Senator Angus King (I-ME) put it well when he criticized a regime in which the president is "the prosecutor, the judge, the jury and the executioner."

The article considers the possibility of a special "drone court" as an external check on the president and identifies the problems with that approach. Indeed, experience teaches us that external checks on the executive branch do not work very well. Both Congress and the courts generally have acquisced or even abetted the expansion of presidential power.

Hence, in my forthcoming book, Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch (NYU Press), I observe that we need a strong internal check on the executive branch and that a two-person, bipartisan presidency would provide the right kind of check. As the founding fathers recognized and decision making research confirms, policy is better made when people with different perspectives work things out together.

George W. Bush’s invasion of Iraq and Lyndon B. Johnson’s escalation of the Vietnam War are illustrative—a single misguided decision maker can make choices very harmful to the country. In the words of Woodrow Wilson, the “whole purpose of democracy is that we may hold counsel with one another, so as not to depend upon the understanding of one man.”

Of course, there are many questions raised by a two-person presidency. How would two executives make decisions, why wouldn't they end up fighting with each other, etc.? These are all good questions, and I answer them in Two Presidents. For a summary of my answers, see Chapter 1.

Comments

[Patrick S. O'Donnell]

Perhaps it's just my computer connection, but the SSRN page shows up blank after taking an usually long time to appear.

While I have nothing against your proposal and need more time to think about it (I'm inclined to skepticism but am open to persuasion), I do wonder if it too does not get to the heart of the problem, for reasons Garry Wills provides and about which I recently posted here: http://ratiojuris.blogspot.com/2013/02/the-national-security-state-its-secret.html

That aside, while I realize "final decisions" rest with the President, the idea of a "single misguided decision maker" strikes me as inaccurate, for such decision-making typically involves small group of close advisors, with one or two individuals perhaps with influence over and above the rest (cite numerous examples here) of the bunch (say, the person who writes the speeches, a close friend, a Dick Cheney-type, and so on). And not infrequently differences do exist among those advising the President (certainly that occurred under Johnson). While final responsibility officially lies with the office, that hardly means the President alone made the decision, and I think that's especially true in the case of the more significant or profoundly controversial cases.

[David Orentlicher]

Here's the SSRN link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2007172

Your comments are helpful, but I do think a two-person presidency gets to the heart of the problem of the imperial presidency. Garry and you are correct about the expansion of executive power and the failure of our constitutional structure to contain it. I think a second president would provide an important check on the exercise of executive power. And I think that is the case both because two presidents will act less frequently and because they will act more wisely when they do act.

The fact that presidents decide after soliciting the advice of other officials lets them secure some of the benefits of group decision making. Nevertheless, there is a big difference between multiple decision makers and a single decision maker with multiple advisers. Consider in this regard how different the Supreme Court would be with one justice and eight (experienced) law clerks.

[Patrick S. O'Donnell]

The reference to the more cooperative nature of a "two-person" relationship is certainly questionable, particularly if one goes outside game theory into the real world. In any case, even if we accept game-theoretic reasoning here, I'm not sure that these two individuals would necessarily have the relevant sort of "on-going relationship" apart from their time together in office (two-person relationships in politics may not be what they are in other realms of life). Is that sufficient? Are not the "incentives to cooperate" you cite similar to ones we might expect among members of Congress? The models invoked from Switzerland and France don't seem on point given the various differences in the party-systems, parliamentary or council-type politics, the history of these countries, etc., and you rightly concede their possible irrelevance (or question the viability of such model-transfer). I'm inclined to think at least these examples ARE an improvement on our Executive branch model, and yet I suspect that that they are not at all like what a "two-person" presidency would in fact look like in practice, given the nature of our party politics (in which third-parties are spoilers at best). The example of previous senators working together reflects a different era in our politics, not one characteristic of our country today, as not a few of the older (current and out of office) legislators are quick to lament (today, one's 'bones' are earned by standing one's ground, refusing to compromise on ideological principles, etc.). Whether this is a contingent fact that may soon be altered or indicative of our future remains to be seen. I'll stop now, but do want to note that I'm all for imaginative proposals such as this that enable us to think through a myriad list of important topics, whether or not we, or others, come to any agreement as to this particular proposal's warranted feasibility.

[Patrick S. O'Donnell]

While I don't find the analogy with the Supreme Court relevant, I do think the fact that the President has close advisors comports perfectly well with Wilson's observation that the "whole purpose of democracy is that we may hold counsel with one another, so as not to depend upon the understanding of one man." And I doubt anyone is denying that "there is a big difference between multiple decision makers and a single decision maker with multiple advisers," the point being rather the nature of what a "single decision-maker" means in the context of the Presidency, in other words, there's a significant difference between what happens when we aggregate the views of multiple advisers or come to a conclusion after consulting multiple advisers as opposed, say, to the model or image of "single decision-maker" who makes decisions "unaided." Your statement, for instance, that as "the example of George W. Bush waging war against Iraq illustrates, a single decision maker can make very poor choices," sounds as if the decision to wage that war was that of a single-decision maker unaided, bereft of the neo-conservative consensus that Bush the younger needed to do what the father failed to do, namely, depose Saddam Hussein and (purportedly) bring "democracy" to Iraq. So, in that sense at least, this was not an instance of Bush "making the decision" as it were, but "executing" (i.e., carrying out) a decision already made by others and subsequently giving if full effect with the power of his office.

[Patrick S. O'Donnell]

The reference to the more cooperative nature of a "two-person" relationship is certainly questionable, particularly if one goes outside game theory into the real world. In any case, even if we accept game-theoretic reasoning here, I'm not sure that these two individuals would necessarily have the relevant sort of "on-going relationship" apart from their time together in office (two-person relationships in politics may not be what they are in other realms of life). Is that sufficient? Are not the "incentives to cooperate" you cite similar to ones we might expect among members of Congress? The models invoked from Switzerland and France don't seem on point given the various differences in the party-systems, parliamentary or council-type politics, the history of these countries, etc., and you rightly concede their possible irrelevance (or question the viability of such model-transfer). I'm inclined to think at least these examples ARE an improvement on our Executive branch model, and yet I suspect that that they are not at all like what a "two-person" presidency would in fact look like in practice, given the nature of our party politics (in which third-parties are spoilers at best). The example of previous senators working together reflects a different era in our politics, not one characteristic of our country today, as not a few of the older (current and out of office) legislators are quick to lament (today, one's 'bones' are earned by standing one's ground, refusing to compromise on ideological principles, etc.). Whether this is a contingent fact that may soon be altered or indicative of our future remains to be seen. I'll stop now, but do want to note that I'm all for imaginative proposals such as this that enable us to think through a myriad list of important topics, whether or not we, or others, come to any agreement as to this particular proposal's warranted feasibility.

[Patrick S. O'Donnell]

The second post was to be in the first place, and the top post second in order, followed by the last post above.

[Patrick S. O'Donnell]

I'm clearly having problems posting this stuff. But the following should replace the redundant post above.

And I'm inclined to believe that not a few of the problems of governance associated with a "two-party" system (e.g., partisan conflict, stalemate or deadlock, etc.) will only be replicated at the executive level with a "two-party" presidency: why would not "Bush and Gore" attempt to please the wishes of their respective parties? The stakeholders remain the same, only the means by which they're views come to fruition differs. One distinct advantage of a single executive decision maker hinges on the ability to make decisions in a timely manner, an ability that would, it seems, be in some measure obstructed by two presidents arguing and bargaining over the relative strengths of their respective views. It's claimed that "two-person decision making can accommodate the need for rapid decision making. Presidents always confer with trusted advisers before making even the most urgent decisions." Indeed, hence the reason adding another executive decision maker to the mix only complicates matters, both presidents conferring with their bevy of trusted advisers: how does this render the decision-making any less partisan or inclined to reach an agreement that does not abuse the power of the office? After all, there's already much bipartisan support for the "war on terror" (or recall the congressional support for the Gulf of Tonkin resolution) and even the putative exigencies of the "national security state"--how does a two-person executive branch overcome that?