the TRIBUNICIAN

Introduction

At the Philadelphia Convention in May of 1787 the figure of King George III loomed over the Framers' efforts as they crafted the U.S. Constitution. It was his selfish whims and actions enabled by the British Parliament that were the direct catalyst for the birth of the new American republic. The authors of the Constitution were informed by the direct effects of virtually unchecked autocratic power and were influenced by the works of James Harrington, John Locke, and Charles de Montesquieu as they constructed the new framework of government for their young nation of States. They were inclined to craft a compartmentalized system of governance with clearly defined functional areas of responsibility and checks and balances in place to prevent an accumulation of power and a return to tyranny.

The Constitutional Convention Origin and the Federalist Argument

The debate over the executive branch and its structure and powers was especially fierce. Most of the Framers did not want to create a position so powerful as to be a king in all but name, and almost all understood that the executive would require a concentration of power that would allow for the effective and timely execution of governance. Despite this general understanding, not all the Framers were keen to have a unitary executive model.

Prominent on the contra side of the issue were Edmund Randolph and George Mason of Virginia. Randolph feared that a unitary model would be a "foetus for monarchy". His position was that there should be a regionally elected three-member executive with all members also being a part of an executive/judicial amalgamation with federal judges, a 'Council of Revision' with veto powers over legislation. Mason likewise had a fear of the executive being an "elective kingship" and wanted a regionally elected model, but with a six-member executive with "advice and consent" powers to a President, and a focus on record-keeping for purposes of transparency and accountability.

Benjamin Franklin of Pennsylvania, who had less-specific ideas for the executive branch, was also a proponent of a plural executive. His home state was at that time the only one to have a plural executive. It was a twelve-member 'Supreme Executive Council' with a chairman-like President whose members were elected from each county for three-year terms. Franklin's only specific desires for the new federal executive were that the officeholder(s) should not be paid any remuneration for services, and that the option to impeach said executive(s) was to be non-negotiable.

Among the supporters of the unitary executive model were James Wilson of Pennsylvania and Alexander Hamilton of New York. Wilson advocated for a singular executive elected by a popular vote who would have absolute veto power over legislation. Hamilton also wanted the office to have absolute veto power and was in favor of the President having a lifetime term of office. Effectively, Hamilton wanted an elected monarch.

Debates were followed by deliberations and a compromise was reached. The new American executive would be a singular officeholder called the President. They would serve four-year terms with qualified veto powers over legislation, pay set by Congress, and executive and judicial appointment powers made with the Senate's "advice and consent". Congress also had the option to impeach for "Treason, Bribery, or other high Crimes and Misdemeanors". They also crafted a system of election whereby esteemed citizens and members of a body called the Electoral College validated the character and competence of the candidates and determined the winner of the Presidential election.

The Philadelphia Convention ended in September of 1787. By October of that same year James Madison, Alexander Hamilton, and John Jay were writing and publishing The Federalist Papers that were arguing in support of the ratification of the Constitution. Federalists #67 to #77 were Alexander Hamilton's direct explanation and defense of the newly proposed "Executive Department". It is in Federalist #70 that Hamilton explains the necessity of the unitary executive model in opposition to the plural executive model. He argued that a plural executive would lack the efficiency, accountability, stability, and security necessary to effectively govern the new American republic. By June of 1788, the Constitution became the law of the land for the United States.

The Roman and American Parallels

The primary historical inspiration for the American republic and its new Constitution was the ancient Roman republic. The Roman republic had an administration of magistrates with blended executive and judicial functions whose candidates were nominated by the mostly advisory Senate and elected by the various assemblies composed of the citizenry. The closest magistrate position comparable to the American President were the Consuls, a dual office at the top of a plural executive model (with other members titled Praetors, Aediles, and Quaestors). The Consuls alternated their exercise of power monthly and held yearlong terms. The Framers were eminently aware that the Roman model eventually devolved into an autocratic monarchy, partly due to the inability of that republic to govern effectively through democratic means. They were also informed by the fact that the office of the Consuls was eventually corrupted and used as a foundation to create the role of the Princeps Civitatis, the First Citizen. It was this position that we now call the Emperor of Rome, the first officeholder being Imperator Caesar Augustus.

The Roman republic had what started off as an informal sequence of offices that needed to be held before one could be elected to Consul. This mix of administrative and military positions was referred to as the cursus honorum, the ladder one had to ascend to attain the office of Consul of Rome. By the time of the mid Roman republic the cursus honorum was formalized by law due to the increasingly competitive nature among the ambitious Roman political elites for the office of Consul. This formalization of norms introduced mandatory military service, minimum age requirements for specific offices, mandatory intervals of time between holding the offices, and it also formalized the sequence of offices. By the time of the late Roman republic, starting with Scipio Aemilianus, and followed by various successive non-sequential offenders (to include Gaius Marius, Lucius Cornelius Cinna, Lucius Cornelius Sulla, Gnaeus Pompeius Magnus, Gaius Julius Caesar and culminating with his heir Augustus) the formalized law of the cursus honorum was violated and disregarded without punishment or penalty more often than not. It was this callous disregard of norms and laws that directly contributed to the decline and fall of the Roman republic.

The Framers were informed by this history and as such had formal prerequisites for the President explicitly stated in the Constitution. Article II, Section One, Clause Five of the Constitution states that to hold the office of President one must be thirty-five years of age, a natural born citizen of the United States, and a resident of the United States for no less than fourteen years. Initially the President was the winner of the Presidential election, and the Vice President was the runner-up. This was somewhat like the Roman model for the election of Consuls. The Presidential election of 1800 was so close it required a contingent election in the House of Representatives. This event was a catalyst for the 12th Amendment being proposed in 1803 and ratified in 1804. This amendment modified the specifics of electing the President and Vice President, transforming the office to the more unified model we know today.

There were informal prerequisites for the Presidency, as well. Of the forty-five people to hold the position of President all but one have had prior experience in executive or legislative governance and/or the military. And until 1940, following the example set by George Washington, no person had been elected to more than two terms. It wasn't until Franklin Roosevelt was elected to his third term in 1940 that there were legislative attempts to formalize this aspect of the American cursus honorum. By 1951, the 22nd Amendment was ratified, limiting the President to two elected terms.

Where the Roman republic failed regarding their executives was in the devolution of the office of the dual Consuls from a de jure plural executive to a de facto unitary executive. Perhaps if the Romans had, instead of having the two Consuls alternate terms of power monthly, divided and defined more clearly functional areas of responsibility and duties for each Consul, the plural nature of the office would not have been neutered and then mutated into the office of the First Citizen.

The roles, responsibilities, and scope and scale of the American republic have increased progressively since World War II, and so too have those of its Presidency. Beginning with Roosevelt's four historic electoral victories, there has been an unprecedented accumulation of power in the executive branch. Roosevelt's New Deal programs, his attempts to 'pack' the Supreme Court with additional Justices, and his successful execution of the American war effort during World War II began this trend and its momentum has only increased.

Despite no formal Congressional declarations of war since 1941, since the end of World War II the United States has been involved in three protracted foreign military engagements for a combined 42 of the last 80 years, all at the behest of the President and their personal agenda. This is a startling usurpation of the Constitutionally delegated Congressional power to declare war, via a combination of executive orders and legislative passivity and surrender.

Shifting ideological landscapes, outdated structural and procedural shortcomings, and electoral systems that favor the binary have limited and all but neutered Congress and their ability to effectively exercise their de jure Constitutional duties and powers of legislation and oversight of the other branches and have led to the Supreme Court becoming de facto legislators via their decisions from the bench. This has further increased the power of the Presidency because of that office's duty to appoint Supreme Court Justices and its assumed privilege to fill those gaps in legislation with executive orders.

The unitary executive model has become all but an imperial model as successive Presidents continue to accumulate further de facto powers. Arguably the American republic is at a precipice, comparable to the late Roman republic in the era of Marius and Sulla. Ultimately it was when the Roman republic supplanted the primacy of the plural executive and its dual Consuls with the unitary executive of the First Citizen that it formally became an empire.

A Possible Solution

Congress has proposed no less than six modifications of the executive branch that have been approved by the States. Besides the 12th and 22nd Amendments, the 14th, 20th, 23rd, and 25th Amendments modify the Presidency, as well. The 14th bars candidates that have previously taken an oath to support the Constitution and then "engaged in insurrection or rebellion". The 20th moved the date of the Presidential inauguration. The 23rd granted residents of the District of Columbia three Electoral College votes in the Presidential election. And finally, the 25th determined specific succession for the Presidency and how to deal with situations in which the President is disabled or incapacitated. I propose Congress must craft and the States must ratify a Constitutional amendment to modify the Presidency again to prevent an American dictatorship.

A Constitutional amendment transforming the executive branch from a unitary model to a plural model is a viable solution to the current problem of the accumulation of excessive power within the executive branch. Time has shown Hamilton's arguments in favor of the unitary model and against the plural model to be flawed and mistaken. Randolph's and Mason's concerns over the unitary executive model now seem incredibly wise and especially prescient.

The States and their numerous variations of administration, by design, provide a marketplace of ideas for governance. Whereas Pennsylvania was the only State to have a plural executive model at the time of the Philadelphia Convention, a super-majority of states currently use a plural executive system. Considering all States but one currently emulate the federal bicameral legislative model, and forty of the fifty States emulate the three-tiered federal judicial model, it is telling that only one State emulates the federal executive model whereby the chief executive is the only statewide elected official in the executive branch and holds supremacy over the whole of that branch. It is also especially telling that in Texas, the so-called "Beacon of Liberty", a supposed model of freedom that others should follow, uses a plural executive system that elects no less than nine executive branch offices by statewide elections.

In recent decades, a sizable amount of modern scholarship has explored the operations and effectiveness of plural executive systems by means of studying the various permutations that the States have to offer. In Federalist #70 Hamilton argued against a plural executive model by opining that it would be inefficient, insecure, unstable, and lack accountability. Various studies refute these allegations generally and specifically.

In 2008 two professors of law at the University of Chicago Law School published a paper about a possible Federal plural executive model based on their examination of these various studies of State plural executive models. In this paper the authors categorize the current federal unitary executive model with a single executive responsible for all policy areas as a "bundled" executive model. They argue that this has led to inefficient governance and lowered accountability for failed policies. They go on to propose that "unbundling" executive power by creating policy-specific electable federal executive positions (as most States have already done for their respective executive branches) would "enhance democratic accountability and government performance".

I agree with the conclusions of these esteemed and informed educators. The American People deserve a more efficient, accountable, stable, and secure executive branch. I propose a federal plural executive model with the following characteristics:

• three co-equal chief executives, each with pardon powers and qualified powers of veto over legislation
• each chief executive pardon or veto could be overruled by two "counter-vetoes" of the other two chief executives
• new legislation would require presentment by 2/3 vote of the chief executives
• vetoes and pardons of each chief executive could be overruled by Congressional override with a 2/3 vote of both House and Senate
• each chief executive would be impeachable by Congress under the same conditions as the current unitary model
• each chief executive would exercise authority over three co-equal functional areas of responsibility; external/foreign affairs, federal auditing/financial/legal affairs, and internal/domestic affairs
• a staggered six-year election cycle (parallel to that of the Senate 'classes') whereby only one chief executive would be elected by a national vote every two years; each chief executive would campaign with a direct successor running mate under the same conditions as the current unitary model
• the chief executives would be elected using the present Electoral College method of election, or could use a direct national popular vote method of election
• each chief executive would be term-limited to one six-year term in each functional area of responsibility and would be restricted from holding more than one chief executive position simultaneously
• the executive branch departments would be assigned to one of the three functional areas of responsibility, and there would be three separate lines of succession for each chief executive, and each chief executive would appoint their department heads with the advice and consent of the Senate
• SCOTUS appointments would rotate equally between the three chief executives as vacancies occur with the advice and consent of the Senate
• all other judicial appointments would be made by the Attorney General as vacancies occur with the advice and consent of the Senate
• the Deputy Attorney General would fill the role of President of the Senate

The first functional area of responsibility, external/foreign affairs, would be governed by the President and their direct successor the Vice President. Under this third of the executive branch would fall the Departments of State and Defense, in that order of precedence.

The second functional area of responsibility, federal auditing/financial/legal affairs, would be governed by the Attorney General and their direct successor the Deputy Attorney General. Under this third of the executive branch would fall the Departments of Justice and the Treasury, in that order of precedence.

The third functional area of responsibility, internal/domestic affairs, would be governed by a newly created position titled, for a lack of a better term, Praetor, and their direct successor the Lieutenant Praetor. Under this third of the executive branch would fall the rest of the executive branch departments, to include the Departments of Homeland Security, Energy, Transportation, Health and Human Services, Education, the Interior, Agriculture, Commerce, Labor, Housing and Urban Development, and Veterans Affairs, in that order of precedence.

I believe that the creation, execution, and performance of this model, as suggested by the various studies of the numerous State models of plural executive governance, would directly contradict Hamilton's arguments against a plural executive and would provide an efficient, accountable, stable, and secure Federal executive branch, much less vulnerable to the threat of creeping authoritarianism.

Conclusion

The People of the United States were blessed in that the first President was a principled and humble person who was motivated by service to the American republic. Washington was not perfect, but in the context of the times he was exceptional. Especially so because he did not seek personal power or long-term aggrandizement at the expense of the People or the law despite having the opportunity to do so. Many of the characteristics of the office of the President as we know it today originated from his personal choices and ideas; from the common title of 'Mister President' to the convention of only serving two terms. Instead of hoping that Washington's successors emulate his spirit and integrity, America must embrace the instruments of change given to us by the Framers and leverage the mechanism of the Constitutional amendment process. We must be bold and do what the Romans failed to do, divest the executive branch of its excess and unbalanced power through transformation. The American republic needs to craft and ratify a Plural Executive Amendment, post haste.

References

• Beard, Mary. SPQR: A History of Ancient Rome. New York: Liveright Publishing Corporation, 2015.
• Berry, Christopher R., and Jacob E. Gersen. "The Unbundled Executive." The University of Chicago Law Review 75, no. 4 (2008): 1385-1434.
• Hamilton, Alexander, John Jay, and James Madison. The Federalist. The Gideon Edition. Edited by George W. Carey and James McClellan. Indianapolis: Liberty Fund, 2001.
• Shotter, David. The Fall of the Roman Republic. London: Routledge, 1994.
• Tacitus, Publius Cornelius. The Annals of Imperial Rome. Translated by Michael Grant. Revised edition. London: Penguin Books, 1996.
• The Constitution of the United States: A Transcription. National Archives and Records Administration.
• Tranquillus, Gaius Suetonius. The Twelve Caesars. Translated by Robert Graves. Revised by J. B. Rives. London: Penguin Books, 2007.