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03/15/2021

John McGinnis & Michael Rappaport: Presidential Polarization
Michael Ramsey

John O. McGinnis (Northwestern University - Pritzker School of Law) and Michael B. Rappaport (University of San Diego School of Law) have posted Presidential Polarization (56 pages) on SSRN.  Here is the abstract:

Political polarization is a great political problem of our time. While it has many sources, one important cause is the deformation of our governmental structure. That structure once required consensus to enact important policy changes. Now the President can adopt such changes unilaterally.

Because the President represents the median of his or her party, not of the nation, the decisions of the President normally are more extreme than what would emerge from Congress, particularly when, as is usually the case, the houses of Congress and the President are divided among the parties. Domestically, Congress’s delegation of policy decisions to the executive branch allows the President’s administration to create the most important regulations of our economic and social life. The result is relatively extreme regulations that can shift radically between administrations of different parties, creating polarization and frustrating the search for political consensus. In the arena of foreign affairs as well, presidential power to engage in military interventions and to strike substantial international agreements on the President’s own authority avoids the need to compromise to achieve political consensus.

Understanding the institutional roots of polarization provides a roadmap to changing the law to restore a constitution of compromise. Excessive delegation should be curbed, forcing Congress to make key decisions. The President's initiation of hostilities and executive agreements should be limited by requiring prior congressional authorization or swift congressional ratification after the fact. None of these reforms require us to begin the world anew, but instead to return to tried and tested constitutional structures. In a politics where compromise is routinely required, citizens would become less polarized, seeing each other less as targets or threats and more as partners in a common civic enterprise.

Agreed.  One might add as well that the politicization of the courts (especially the Supreme Court) is part of this phenomenon.  As the courts play an outsized role in policymaking, the President's power to nominate judges and especially Justices becomes much more important (and so more polarizing) than it was under the original design.

(Via Instapundit.)