The Modern Presidency: Wherefore Art Thou, American Legislature?

Adam Gravano




One of the important takeaways from this presidential election and its aftermath, more than the win or loss and explanations of why, has to do with the perception of the top office's importance and the gravity of the executive office.


In one sense, it's easy to see voters caring about the down-ballot races. The number of undervoted ballots, where only the top race is voted, actually declined in several key swing states. It's an easy measure of voters viewing the office of the presidency as more important than everything else on the ballot.


Even though these numbers have dropped, we see other areas in which concern over the scale and scope of the presidency lurks behind charged partisan rhetoric. Be it Glenn Beck's nonsensical concerns of a dictatorship arising from the nascent Obama administration in 2008; the fears of Donald Trump crashing through norms that seemed, for much of 2017 and 2018, to hit the pages of The Washington Post weekly; or the most recent claim, by Scott Adams, that the Republican Party will never win another presidential election because of its recent loss, the consequences of a change in the inhabitant of the Oval Office have been regularly overstated by the media. A fever pitch is reached by one media group, loosely affiliated with partisans of one side, when the other's candidate of choice wins.


What's missing is a reflective look at what causes this fever pitch -- in extreme and dangerous tones with potentially real consequences.


A flashpoint of this contention has been the executive order. Most notably, President Obama's statement that “I've got a pen and I've got a phone,” which covered more than actions requiring the secrecy and dispatch that other areas in which the presidency is accorded a freer hand, namely foreign policy: “Helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and help they need to grow and advance, to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.”



Reader, please note: All these require definition, as explained in Harold Lasswell’s book, Politics: Who Gets What, When, How. What is the best education? What environments require what kind of support? If you're wondering where the legislature comes into the picture, this is exactly where it ought to: these are choices regarding who gets what, when, and how, typically seen as the province of the political — and, as such, a question to be deliberated in the legislature.


It's easy to critique President Obama for this. We know what comes next. But even when Donald Trump did become president, no major effort was made to curtail executive power via the legislature. For obvious reasons, the Republicans made no effort; on the other side of the aisle, the efforts took a more litigious form. The political branches brought problems to the third branch, the federal courts.


At their least effective, lawsuits used Trump's motivation to act as a vector for the travel ban; they also appeared to offer complications only when moving in one direction on DACA. No efforts were made to lower the stakes of a change in executive orders through legislation, nor were any major deals made.


It's possible to say nobody has been good at wheeling and dealing since John Boehner was all but chased off Capitol Hill by his own caucus. Instead, the public was treated to the spectacle of political branches attempting to rope the courts into their quests.



Pen-and-phone constitutionalism has a sort of addictive quality to it. Despite having a majority in the House and a tiebreaking potential in the Senate, we still witness President Biden taking actions on his own initiative, rather than attempting a more durable change through coaxing the legislature into action.


Some might claim such an effort is necessary to avoid obstruction in the legislature, particularly the Senate, but this strikes at a fundamental problem: an inability to negotiate and bargain, perhaps a lack of prioritization of platform planks.


The “missing-in-action” legislature is a late disappointment in American politics, especially considering its original design. Successfully lowering the stakes of presidential races will require more input from the legislative branch, particularly a more active, detail-oriented role in making the rules and regulations that affect Americans’ day-to-day lives.


Author Bio:


Adam Gravano is a contributing writer at Highbrow Magazine.


For Highbrow Magazine



Image Sources:


Lawrence Jackson (, Wikimedia, Creative Commons)

Sonya N. Hebert (Obama White House Archives, Creative Commons)

Illustration by Michael Bechetti for Highbrow Magazine

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