The race for the American presidency is a contest unique in its stakes, ferocity, and cost. Whoever prevails becomes the single most powerful person in the country—the one who gets to move into the White House, the one who gets to stand before the nation every January and deliver the State of the Union address. The winner wins alone: That’s why there’s one big desk in the Oval Office. That’s why there’s one executive suite in Air Force One.
Now imagine there were two. Two big desks. Two sets of keys to Camp David. Two presidents, instead of just one. And imagine that made everything about our government work better.
“People are so used to our system that they haven’t thought of this alternative,” said David Orentlicher. “But right now we are giving so much power to one person—we’re giving 100 percent of the power to someone who may be elected with barely 51 percent of the vote.”
Orentlicher, a professor at the Indiana University School of Law and a former state representative, lays out his case in a new book to be published next summer by NYU Press. In the book, “Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch,” Orentlicher makes the startling argument that when the Founding Fathers debated the leadership structure of the new United States, they picked the wrong option: a single president instead of a “plural executive” that would spread the power around. According to Orentlicher, in setting up the presidency as an office with a maximum occupancy of one, the framers of the Constitution unknowingly laid the groundwork for a structure that, centuries later, would lead to a too powerful executive branch and seemingly intractable partisan divisions.
It might seem that a powerful presidency would be a recipe for effective governance, but as Orentlicher sees it, precisely the opposite has turned out to be true in the United States, with the modern executive branch growing so strong that an opposition party’s best political strategy is simply to obstruct the president at any cost. Orentlicher points to Senate minority leader Mitch McConnell, who infamously asserted in 2010 that the GOP’s top priority over the next two years would be to make Barack Obama a one-term president. His top goal wasn’t to pass laws, or work for his constituents, but to try as hard as possible to deny an elected president the ability to claim any accomplishments.
This dynamic has virtually halted progress in Washington. And as Orentlicher see it, a bipartisan presidency is precisely what’s needed to shake it loose. The presidential race would be less divisive if the top two winners were guaranteed a slot. And a Republican and a Democrat who held office at the same time would be forced to find common ground or risk leaving office with both their parties having achieved nothing.
Orentlicher’s idea is one of several far-out proposals being floated by legal scholars who believe the United States government has become so dysfunctional that it requires radical restructuring. Jacob Gersen of Harvard Law School has made the case for “unbundling” the executive branch, getting rid of the presidency as it currently exists, and allowing voters to directly elect specialized executives to run the economy, agriculture, military affairs, and so on. Meanwhile, Sanford Levinson of the University of Texas at Austin School of Law has argued for drawing up an entirely new constitution. Most legal scholars and political scientists dismiss such ideas as outlandish and impractical, and even Orentlicher admits the chances of his proposal being adopted are just about zero. But they offer a fresh lens on a problem we all complain about—and may offer useful guidance for how we should go about trying to reform our government.
When the Framers conceived the office of the presidency in 1787, they envisioned something much less influential than the modern White House. The president was to be responsible for implementing policy, but setting it would be the job of Congress.
We’re used to seeing our presidential candidates campaign against one other so intensely that, by the time the show’s over, it’s difficult to imagine they could ever sit in the same room. But much of this apparent enmity is a product of the campaign itself, which compels political rivals to distinguish themselves as starkly as possible, despite the fact that at a basic level, they both want to make America safer, more prosperous, and more influential in the world. Their differences on taxes usually amount to a few percentage points; their moral disagreements, though serious, take place over a handful of wedge issues carefully selected to motivate voters. With two presidents in the White House, Orentlicher writes in his book, our leaders would be forced to spend their time building on all the things they have in common, instead of pretending they have fundamentally opposed visions for the country. And their parties would have to fall in line, or suffer.
“Presidents want to leave a legacy,” Orentlicher said. “With two of them in office, their choice is to either work with their partner, or squander their presidency.” The proposals that emerge from such a partnership—rather than immediately becoming targets for filibusters and attacks from the opposing party once they arrive in Congress—have to be considered seriously by both sides.
“Right now what happens is the legislative proposals that come out of the White House are Democratic proposals, so if you’re a Republican in Congress, even if you think the president is right, as many of them do, you know that if you cooperate with him and the legislation gets passed, the president’s going to get all the credit,” Orentlicher said. ‘The Republicans get nothing out of cooperating, so the only way they can benefit is by disagreeing with the president and hoping the president’s policies fail.”
This is not how the framers envisioned the branches relating to each other. When they conceived the office of the presidency in 1787, they envisioned something much less influential: The president was to be responsible for implementing policy, but setting it was the job of Congress. This started to change during the first half of the 20th century, with Franklin Delano Roosevelt’s presidency generally considered by historians and legal scholars to have marked the point of no return. “Government responsibility has grown in volume, scope, and complexity,” said David E. Lewis, codirector of the Center for the Study of Democratic Institutions at Vanderbilt University. “What that means is that Congress has had to rely on the executive branch to do a lot of very important policy-making.” He added that the rise of the United States as a superpower on the world stage also made the executive branch more important as a decision-making body. “By necessity, the president has become a significantly more powerful actor, particularly in foreign policy, than the founders anticipated.”
Before he became a law professor, Orentlicher held a seat in the Indiana State House, and it was that experience that got him thinking about radical ways in which the federal government could be restructured. “I believed I was going to be bipartisan, and then I got into the Legislature and it just didn’t happen....I thought, ‘What is it about the structure of our political system that drives people to be so partisan?’ And that’s what led me to think that the presidential election is really what drives so much of our partisan behavior.”
As Orentlicher considered other possibilities, he found himself looking to the model of Switzerland, where a seven-person Federal Council is elected by parliament every four years. “In Switzerland, you’ve got people from five different parties representing 80 percent of the electorate. The result is that many more people in Switzerland feel like they have a voice, even if they don’t get everything they want.” A two-person version of that arrangement would be relatively simple: Parties would put forward their nominees as they do now, and then the top two vote-getters in the general election would be declared the winners. This would make a much larger portion of the electorate feel like they have a representative in the White House, and it would open up the executive branch to third party candidates by making it possible for their supporters to vote for them without worrying that they’ve wasted their vote, or thrown the election to the wrong candidate.
At heart, Orentlicher’s idea amounts to a very specific diagnosis of why America has become so partisan—and it’s not one that everyone agrees with. Many experts say it ignores the complex factors that have forced the two major parties further apart, including economic inequality, gerrymandering, and the structure of the modern primary system. But Orentlicher’s argument is that it’s very hard to do anything about all those underlying causes, whereas setting up a two-person executive branch is a single administrative act that would encourage cooperation without requiring American politics to become magically less polarized.
Some call that line of reasoning naive. “All you’re going to do is make the executive branch paralyzed internally,” said Heather Gerken, a professor at Yale Law School who specializes in the American election system. She added: “The impulse of one party to veto the other side may diminish, but they’ll just have another set of things they’ll be fighting and politicking over, like who’s going to win the next Congress....They’re still going to be at war with one another. It does take one prize off the table, but these guys aren’t just in it because they care about who wins the presidency. They’re in it because they care about their own power.”
Even those who agree that polarization and expansion of presidential power are two of the main problems facing our government don’t see the two-president solution as a viable way out. “We do have a problem today with undue concentration of power in the presidency—it’s deviated significantly from the constitutional model and I think it deviates from the plan in a way that people should find alarming,” said James Gardner, a professor at SUNY Buffalo Law School. But installing two presidents is a risky solution that might only underscore the depth of the existing divisions, he said, pointing to the example of ancient Rome, when one attempt at three-way power sharing ended in Caesar’s dictatorship, and another in civil war. “The lesson, I think, that people have drawn from that—and certainly, the founding generation was very familiar with these historical examples—was that shared executive power is an unstable arrangement,” Gardner said.
One thing most of Orentlicher’s critics agree with him on is that the American presidency has indeed become too powerful relative to the other branches of government—and that the intensity of the race to capture it has exacerbated partisan divisions. And it’s not going to be easy to reverse this movement, experts say: For the most part, the power that has built up in the executive branch has been placed there by Congress, which over the years has more or less willingly handed over its policy-making function to the president in exchange for relative immunity from blame when things go wrong. “The real question,” said Sanford Levinson, “is does Congress want to take back these powers?”
Then there’s this question: Do we, the voters, want them to? Do we want to entrust America’s big decisions to hundreds of squabbling legislators working with a diluted executive leadership—or do we prefer having a strong executive at the center of our government, a single individual whose power gives us license to either lay our troubles at his feet or look to him for hope?
The problem, in other words, may be ours. “It’s always frustrating to me how high the expectations are for the presidency,” said David Lewis. “If we had lower expectations about what presidents would accomplish—if we didn’t hold them responsible for everything that happens in government—then the incentives for members of Congress to try to obstruct presidential action would be less intense.”
All of which is to say that we may need to change how we think about the president, even if we accept that we will only ever have one at a time. It’s precisely in this way that proposals like Orentlicher’s—fanciful, disorienting, even surrealistic—can be transformative. Ultimately, it may shed light not on the ideal number of chairs at the head of the table in the Situation Room, but what we the people should expect from the one person already sitting there.