Patrick Healy, Asst. Opinion Editor
“The executive Power shall be vested in a President of the United States of America.” Article II of the Constitution makes it pretty clear who executes the federal government’s laws. In pursuit of efficiency; however, every president has appointed cabinet members to help them carry out this power. This practice spans from George Washington’s four cabinet members to the modern presidents’ 23. Though there are 23 cabinet-level officials, I’ll be ignoring the vice-president for reasons I’ll get to and the seven non-secretaries whose diplomatic nature makes it necessary that they always be appointed by the president.
Besides serving advisory roles in the cabinet, the 15 department secretaries are listed in the presidential line of succession and head the expanding federal bureaucracy. The president can appoint them, pending Senate approval, and unilaterally dismiss them, so their actions carry the weight of the presidency.
The ability of the president to appoint the entire cabinet means that the executive branch is controlled by one party. Practicality demands that the legislative branch is controlled by a majority group, but that doesn’t have to be true for the executive branch in our presidential system.
In the United States’ presidential system, the legislative and executive powers are mostly separate. The president can veto proposed laws, but their main job is to enforce existing laws. In a perfect world, the implementation of laws wouldn’t be a political process, but like the Supreme Court, it is. Many countries respond to this “execution of laws” dilemma by having the same party that passed laws carry them out (a parliamentary system).
The parliamentary system is the ideal method, but our separation of the executive and legislative powers does afford an opportunity not found in parliamentary countries because executive functions, unlike their legislative counterparts, are inherently divisible. Bills either become laws or do not, making it necessary that a simple majority emerges to represent the entire legislature, but there are many executive departments that carry out laws mostly independent of each other.
The legislature is a broker of power that gets to make all of the apportionment decisions like a parent giving their children allowances. It wouldn’t do if the children had to barter for themselves, as each wants all of the money, so a (hopefully) neutral party must mediate conflict. A majority, typically in the form of one party, must have total power in order for the branch to function.
Congress does have committees, but they exist to prevent the legislature from being bogged down and so that members’ specialties can better serve the interests of the majority. Executive departments, on the other hand, are more independent of each other and can therefore be divided between parties. I can’t think of a compelling reason that the Department of Veterans Affairs must be staffed by the same party as the Department of Energy or the Department of the Treasury. It’s entirely possible that I’m too naive to see it, but I don’t see why the simplicity of an ideologically homogeneous cabinet outweighs the ability to proportionally represent the electorate in this branch.
Take our judicial system. The Supreme Court’s rulings dispense broad principles that lower courts do their best to parse when faced with similar cases. These lower courts can be overturned by the Supreme Court if their interpretations are too far off base or the Supreme Court changes its mind, but most of their rulings are final simply because the Supreme Court can’t judge every case.
The federal bureaucracy’s relationship to Congress is much the same as lower courts’ relationship to the Supreme Court. The Supreme Court decides about 100 cases and Congress passes about 100 laws annually. Some cases/laws are more important and specific than others, but each provides a framework for subordinate officials, be they executive or judicial, to apply to the thousands of decisions for all the cases that Congress and the Supreme Court can’t attend to.
The biggest difference is that the lower courts are run by appointees of different parties, so roughly half are conservative/Republican and half are liberal/Democratic, whereas the executive bodies that carry out legislative laws are either completely one party or the other. Though we focus intensely on the partisan leanings of potential judges, cabinet members are as predictably partisan. Though it’s necessary that the organ responsible for creating laws (or judicial doctrines) is controlled by a majority party, the subordinate bodies that carry out their laws/doctrines should be divided proportionally among parties.
To implement a split cabinet, the VP needs to come from the opposite large party. This is simple in theory, but it would require an amendment to make the second-place finisher in the Electoral College or popular vote the VP. If you read my article last week, which I can’t recommend in good faith unless you especially like alliterations and elections, then you’ll recall my proposal to have an opposite party VP. My cabinet-splitting plan draws on the idea of an “adversarial VP,” as I dramatically dubbed it.
The share of votes each party receives would determine how many of the 15 department secretaries each party could select. The VP would be the leader of a quasi “shadow cabinet,” and would appoint their party’s cabinet members. In 2016, the Electoral College’s vote would have given Donald Trump nine cabinet members and Hillary Clinton six (the popular vote would have given Hillary Clinton eight and Donald Trump seven).
Most people don’t realize this, but the House actually apportions their seats based on a system reminiscent of pro sports leagues’ drafts. The government’s description of the process uses scary phrases like “priority value” and “geometric mean,” but the takeaway is that my proposal to have the president and VP take turns selecting departments is a lot simpler than a process we already use.
An amendment changing the number or duties of executive departments would not take effect until after an election, similar to the ban on pay raises in the 27th Amendment, as the party in power would not want to yield their existing power. Modifications such as forcing the president to choose the secretary of state, as to avoid diplomatic contradictions, could be made. The president would be able to appoint and dismiss any members of their cabinet majority, and the VP would be able to do the same for their cabinet minority. The antiquated practice of Senate cabinet confirmations must be ended to preclude one party from blocking the other’s nominees.
The president would maintain the other powers they currently possess, notably their roles as head of state and vetoer-in-chief, but they would no longer control the entire federal bureaucracy. They would control a portion proportional to their support, and the VP would control the rest. This only really works in a two-party system with separation of the legislative and executive powers. I’m not normally a fan of our two-party system and separation of powers, but this proposal would make the most of them.
Portland, Oregon has a commission-style government, where each commissioner leads a few departments as well as being a part of the council. It was first tried in Galveston, Texas but it failed because the commissioners protected their own department(s) at the expense of others. It appears that Portland has ironed out Galveston’s problems — in 2007, more than three quarters of Portlanders voted to keep the commission style of government — but it’s not quite what I have in mind.
I am borrowing the Galveston and Portland systems with one key difference — the political considerations wouldn’t be handled by the department heads. The leaders of each party, the president and VP, would handle the coordination between their secretaries, allowing the secretaries to lead their departments without constantly jockeying with each other in defense of their own department’s interest. The cabinet itself would not have any legislative or voting power, and the president’s control of a majority ensures that no 25th Amendment funny business would ensue.
Speaking of the 25th, it dictated that the VP, with a majority of the cabinet, can recommend to Congress that the president be removed from office. The purpose of the amendment is irrelevant to my argument, but it acknowledges that the executive power given to the president in Article II is divided into cabinet members.
Just as the Constitution provides a guide for Congress’ laws, Congress laws’ provide a guide for bureaucratic discretion. Secretaries control the government employees that transform Congress’ paper laws into actionable policy, so their party affiliation should be split as proportionally as possible. All power, at any level, should only be controlled wholly by one party if, like the supreme legislative and judicial powers, the function is indivisible.
For those who desire an electoral system that produces stability, this should delight you. Because the entire power of the presidency would not yo-yo between parties, elections would have lower stakes. The benefits associated with a majority — diplomatic, militaristic and vetoing abilities — would still provide an incentive for a party to be “big-tent” and appeal to a large swath of voters instead of bending to the extremes, as some accuse the parties of doing currently, but the control of a multi-trillion dollar bureaucracy would not swing so sharply every time the White House switched parties.
For fans of a multi-party system, splitting the cabinet would allow presidential candidates to bargain with their more radical elements by offering positions in the executive branch whether they win or lose. The supporters of primary runner-ups could be appeased with a promise of a secretaryship instead of being told to blindly support the lesser of two evils.
Failed presidential candidates are already often offered positions in the cabinet, but splitting the executive branch would give their supporters representation no matter the outcome of the general election. It would provide a reason for everyone to be satisfied with the election’s outcome. Lowering the stakes of elections and offering tangible power to representatives of every coalition in each party might even lessen the divisiveness that racks our politics.