Want to Shrink the Presidency? Start Here.
· The Atlantic
Phases of intense dysfunction and frustration in American public life have tended to be followed by periods of reform, when some of the rules that govern our institutions are adjusted. But these phases of reform do not just happen on their own. The greatest obstacle to launching them is often the inertia of fatalism. Entrenched interests resist change, and bitter partisan divisions make change hard, but the first and foremost impediment to change is the public’s sense of powerlessness and lack of agency.
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Breaking that fatalism has historically required focusing reform efforts on one or two first moves. They should be achievable but not easy, reinforce the constitutional framework rather than challenging it, and draw bipartisan support.
That’s a daunting list of criteria in our era of political paralysis. Are any such reforms imaginable now? Two would seem to fit the bill, given our current troubles: one focused on presidential recklessness and the other on congressional fecklessness. The first: a constitutional amendment to subject the president’s pardon power to congressional oversight. The second: a bigger House of Representatives.
The pardon power is a vital avenue for clemency and mercy in federal law enforcement, especially since parole for federal crimes was effectively eliminated in the 1980s. But the authority is also exceptionally broad and unconstrained. The Constitution says simply that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Pardons are not subject to congressional supervision or judicial review.
[Liz Oyer: Trump is using a sacred power for depraved purposes]
It has always been clear that such an open-ended power could be abused for corrupt purposes. The risk of misusing pardons was considered at the Constitutional Convention. And at the Virginia Ratifying Convention, in June 1788, George Mason argued that “the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.”
James Madison answered Mason’s worry by pointing to Congress’s impeachment power. “If the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him,” Madison said, “the House of Representatives can impeach him; they can remove him if found guilty.” But we now know that this is not a real constraint on presidential abuses. Impeachments have been rare, and the Senate has never removed any impeached executive official from office, let alone a president.
There has been no shortage of abuses of the pardon power over the years. Antebellum presidents used reprieves to nullify the 1820 federal prohibition on participating in the global slave trade. Justice Department officials under Warren Harding sold clemency. Bill Clinton pardoned wealthy donors on his way out of the White House. But the abuses have grown more concentrated and brazen in our time. Joe Biden pardoned his son and gave broad preemptive pardons to relatives, friends, and political allies at the end of his term. In his first term, Donald Trump pardoned allies, such as Roger Stone, Paul Manafort, and Michael Flynn, who figured prominently in scandals that he was also involved in. And Trump’s second term has seen the emergence of a lobbying industry of pardon shoppers and clemency fixers who charge millions of dollars for the service—and deliver results.
This is hardly the worst abuse of presidential power in our age of executive excess, but the pattern of corruption points to the need—and, crucially, offers an unusual opportunity—for a bipartisan reform effort that could revive the habit of restraining the presidency. The fact that both Trump and Biden committed abuses that justify a change makes amending the Constitution a little more imaginable.
And the shape of a potential reform can be found at the root of the American constitutional tradition. On August 25, 1787, toward the end of the Constitutional Convention in Philadelphia, Connecticut delegate Roger Sherman proposed revising the pardon clause of the Constitution to empower the president only “to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate.” This would have had the pardon power function like the president’s appointment power—the chief executive could propose a pardon, but it would take effect only if the Senate voted to affirm it.
Such a change would be straightforward, and perfectly in line with the logic of the constitutional system. It would strike a blow against the aggrandizement of the presidency while giving the Senate more authority. And on all of these fronts, the effort to advance such an amendment could serve as a catalytic reform—exercising some dangerously sagging and depleted civic muscles and opening a path to further reinforcement of the constitutional framework.
To avoid closing off essential paths to clemency, Congress should couple any such move with a revival of some form of parole or an expansion of compassionate release in the federal system. But the very real need for those changes should not foreclose an equally necessary curtailment of excessive presidential power.
Bridling the presidency is not enough, however. It is at least as crucial to reenergize Congress. The House is the most expressly democratic element of the constitutional system. But over time, as the country has grown, members have come to represent ever larger populations, putting them at greater distance from their constituents.
The authors of the Constitution expected the House to grow some after every decennial census, to keep up at least partially with population growth. And the House did grow nearly every decade, from 105 members after 1790 to 435 after 1910. But after the 1920 census, Congress decided that 435 members was enough. The size of the House was capped by the Permanent Apportionment Act of 1929.
In the subsequent century, the average population of a congressional district has ballooned from just more than 200,000 people to nearly 800,000. If the House had kept expanding by the sensible approach that guided its growth throughout most of the 19th century, it would now be 149 seats larger than it is. So for the sake of a healthier Congress, we should now expand the House by 150 members all at once, and then let it grow in the same slower, incremental way it once did after every new census.
A House with 585 members would be a perfectly plausible size for a national legislature. It would still be smaller than the House of Commons in the United Kingdom, for example, or the Bundestag in Germany. And such an expansion, like the curtailment of the pardon power, would have no clear partisan valence. For a 2021 paper published by the American Academy of Arts and Sciences, three colleagues and I modeled the effects of growing the House and found that it would not generate any consistent partisan shift in either control of the House or the functioning of the Electoral College (each state’s electoral votes are equal in size to its congressional delegation).
[David Litt: Congress needs to be way, way bigger]
The point would be to make members of the House more representative, and to make the institution as a whole a more effective legislature. This reform could help that happen by enabling the House to better reflect the fine-grain diversity of the electorate while at the same time increasing the internal diversity of both party coalitions—making cross-partisan bargaining a little easier to pull off.
Such a change would not require a constitutional amendment, just simple legislation. And it could align with the political interests of many members because it would create new seats without eliminating existing ones and ease the threat of being reapportioned out of office.
But at least as important, introducing 150 additional members all at once would create intense momentum for further long-needed changes in Congress, unavoidably driving a rethinking of the budget process, the committee system, the relations between members and leaders, and much more.
That’s how both of these ideas could work: They could be catalytic reforms that advance valuable change while also jump-starting a broader phase of renewal.
The dysfunctions of our politics are amenable to remedies if we are willing to take responsibility for them, experiment with institutional reforms, and understand the constitutional system as a framework for solutions, not the source of our problems.