There is simply no disputing that the executive has grown far beyond what anyone in the 18th Century could have imagined and has become dangerous. And yes, I get it that libertarian-style right-wingers would say that we should shrink the executive and bring it back in line with what the Founders wanted. But restoring an 18th Century executive in this day and age is simply not practical. No country anywhere in the world has an 18th Century-sized executive, nor do the people of any country, our own included, want such a thing.
Parliamentary systems handle the danger by wholly subordinating the executive to the legislature. And there has been talk of moving in the direction of a more parliamentary system, for instance, by allowing multi-representative districts in hopes of reducing polarization.
But parliamentary systems are foreign to the American experience and unlikely to be appealing for that reason. No state anywhere in the US has a parliamentary system. And honestly, after watching the House of Representatives deadlock on choosing a Speaker and acting like a parliament (i.e., being able to remove its leader by simple majority vote and not having clear rules on who takes his place), such a system really does not look too appealing.
So let me propose and all-American system, practiced in many US states but not (so far as I know) in any other country. After all, if there is one thing Americans love, it is multiplying elective offices. So, if so many of our problems are caused by the "unitary executive," and if a parliamentary system is unappealing and un-American, why not do what US states do and eliminate the unitary executive. Have multiple elective executive officials instead.
Consider the executive officials who are elective in state government:
It seems no exaggeration to say that most Cabinet-style posts are independently elective in at least some states. I don't think we need anything like that at the federal level. The trouble with having too many elective offices is that they become mind-numbing and keeping up with all of them is more work than anyone but the most hardcore political junkie would care to do. We don't want that to happen at the federal level. At the same time, giving a single officer authority over the entire executive branch is clearly not safe.
It seems to me that the most dangerous powers of the Federal Government, aside from the military, of course, are law enforcement, money, and administration (see Elon Musk). So, I propose four federal elective executive officials -- the President, the Attorney General, the Treasurer, and the Auditor. The Attorney General would be in charge of law enforcement. The Treasurer would collect taxes and disburse funds. And the Auditor would be a sort of supreme Inspector General, inspecting the entire federal government for fraud waste and abuse and taking actions to curb it.
The President: So, what would that leave to the President? Well, first and foremost, the President would still be commander-in-chief of the armed forces and would be in charge of all military and foreign policy matters (with strict constraints on deploying the military domestically). He would continue to be the sole executive official with the veto power or the power of pardon, subject to the restriction that he could not pardon executive officials. The President would also continue to nominate federal judges and to preside over all executive departments not spun off into one of the other three elective departments, i.e., the "service ministries," most economic policy, and most regulatory bodies. (More on that later).
Attorney General: The Attorney General would be our chief law enforcement officer, and would be elected separately from the President. All federal police, prosecutions, and civil enforcement would fall under the control of the Attorney General. In the matter of immigration, the President would continue to be responsible for border security because of the close associate between the border and international relations, but the Attorney General would handle internal removal. Drug dealing, terrorism, spies, large-scale fraud, public corruption, and all the usual federal crimes would be handled by the Attorney General, along with civil enforcement actions.
The President would continue to control the National Guard. He would only be able to deploy the National Guard to enforce state law or uphold state authority upon the request of the governor. He would only be able to deploy the National Guard to enforce federal law or uphold federal authority upon the request of the Attorney General. The President would not be required to deploy the National Guard in such instances; refusal would always be an option. And the law would define the conditions sufficient to justify use of the National Guard in some detail. Use of the Army for domestic enforcement would be forbidden except in cases of invasion or civil war.
The Attorney General would also take over general regulatory enforcement but would not have the power of issuing regulations or deciding regulatory actions. We all know the rule about separation of powers -- executive, legislative, and judicial powers must be exercised independently or freedom is lost. Such was the theory when this country was founded. We have since learned, through the existence of parliamentary systems, that freedom can survive the complete subordination of executive power to the legislature. Furthermore, we follow the English system of common law that makes judicial precedent binding law. In other words, our courts routinely exercise legislative functions but can be overruled by the legislature. It therefore seems to me that the most important separation of powers is the separation of executive and judicial powers -- the authority bringing a case cannot be the one who decides it!
Our regulatory agencies are often criticized for violating the separation of powers. One and the same body issues regulations, takes regulatory actions, and decides whether there has been a regulatory violation, albeit with the right of appeal to the courts. While these functions may be carried out by different branches of the same agency, all are answerable to the same leadership. Our situation in immigration is a shocking example. Enforcement is part of the Department of Homeland Security, while immigration judges are part of the Department of Justice and subject to the command of the Attorney General. Donald Trump gives orders to both immigration enforcement agents and immigration judges and has been firing judges who displease him. I am open to persuasion both ways as to whether we need to move administrative judges to the judicial branch in specialty courts, or whether stronger protections from firing are sufficient. Either way, the Attorney General should be limited to bringing enforcement actions and should have no role in either making regulations or deciding cases.
An obvious problem presents itself. Must all regulatory enforcers be with the Attorney General? Must every health inspector, say, work for the Attorney General? And what of the special areas of expertise that regulatory enforcers are supposed to have? I am open to persuasion on this one. There are 46 states with independent Attorney General that we can use for guidance. In general, though, I would propose that regulatory agencies have continue to have inspectors and the like who investigate, prepare reports, and can issue citations and civil fines up to a certain amount, but criminal or larger civil penalties would be the responsibility of the Attorney General, with regulatory inspectors acting witnesses.
This arrangement would admittedly have the disadvantage of preventing the removal of a rogue Attorney General except by impeachment. But it would also be a safeguard against improper political influence.
To be continued.
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