US Legislative and Executive Power: Checks, Structure, and Polarization

Posted on Nov 3, 2025 in Police Sciences and Public Security

Congressional Dynamics: Lessons from Recent Congresses

Case Study: Obamacare Repeal Efforts (2010-2017)

• The Affordable Care Act (Obamacare, a 2,300-page law) narrowly passed on strict party lines in 2010. Approximately 45% of the public approved.
• Republicans took over the House in 2010; in 2014, they took over the Senate, too. Congress subsequently passed over 60 bills to repeal and replace Obamacare.
• But repeal did not happen. Why?
• President Obama vetoed each bill.
• In 2017, the Republican Party completely controlled Congress and the Presidency, but Obamacare was more popular, creating more electoral pressure.
• The repeal passed the House, but three Republican Senators voted against it, preventing passage in the Senate.

Supreme Court Nominees and Senate Confirmation

• In February 2016, Antonin Scalia unexpectedly died in office. President Obama nominated Merrick Garland to replace him.
• Senate Majority Leader Mitch McConnell did not schedule hearings or a vote.
• In September 2020, Ruth Bader Ginsburg died in office.
• Her replacement, Amy Coney Barrett, was confirmed on October 26th, 2020, by a vote of 52-48.

Key Takeaways: The Big Picture of Lawmaking

1. The House and Senate occupy center stage when it comes to lawmaking. But the President has an important check with the **veto**.
2. A veto can be overridden by two-thirds of each chamber, but this is uncommon (only 52 out of 499 vetoes were overridden from 1942–2018).
3. The House and Senate have become increasingly polarized, making it exceedingly difficult to compromise or pass bipartisan legislation.
4. Electoral politics are important, too—they influence almost everything members do.
5. The majority party, through its leaders, **dominates the action** in the House and Senate.
6. It is always far easier to stop things from happening in Congress than to make things happen. There are multiple choke points in the system.
7. Out of over 11,000 proposed bills, maybe 10% become law each session.

Congress: The People’s Branch and Public Perception

• The **First and longest Article of the Constitution** addresses Congress; the Framers intended Congress to be the most powerful branch.
• It was intended to be closest to the people (the House is the only popularly elected institution).
• Ironically, it is the least well-liked branch.

Constitutional Design and Legislative Outcomes

• Congress’s design makes it likely that people won’t like it, and it won’t be efficient.
• Separate institutions sharing power + President/Congress with different constituencies + two chambers with different electoral bases and different electoral timelines = A recipe for “ineffective” or “useless” government.
• Why? Members have different incentives, so different constituencies get re-elected.

Congressional Powers Defined by the Constitution

• **Power of the purse** (coin money, impose taxes, regulate commerce) – the executive and judicial branches can’t spend money without its approval.
• **Power of the sword** (declare war, raise army, etc.).
• Plus, implied powers arising from the necessary and proper clause (the elastic clause).

Checks on the President: Other Congressional Powers

• Impeachment of federal officers – the House impeaches, and the Senate tries and can convict.
• Can conduct investigations into the executive branch.
• The Senate ratifies treaties and confirms executive and judicial nominees.

Checks on Congressional Power (Shared Power)

1. The President can veto laws (Congress can override by a two-thirds vote in each House).
2. Executive agencies implement congressional laws.
3. The Supreme Court can declare an act of Congress unconstitutional.
4. The president is the **Commander-in-Chief**.

Foreign Policy Authority: President vs. Congress

• The president has almost all the power in foreign policy.
• Congress has formally declared war only 11 times (really only 5 conflicts).
• The president has sent troops over 200 times without a formal declaration.

Bicameralism and Lawmaking Complexity

• House and Senate constituencies and practices differ, which complicates lawmaking.
• Having to clear two different chambers with different constituencies, structures, rules, and incentives creates more choke points in the system, making it harder to pass legislation.
• Fewer bills are passed each session as a result.

The House: Congressional Districts and Reapportionment

• The Constitution calls for a decennial census.
• The Constitution says nothing about the size of Congress or how districts are to be created; congressional law has set the size of Congress at 435 seats since 1911 (the population has increased 200% since then).
• **Reapportionment** is the allocation of House seats to the states after each decennial census.
• Today, there is approximately one congressperson per 700,000 people (the Constitution only says you must have one per 300,000).
• Every 10 years (in years ending in 0), some states lose seats in the House, and some gain. The census process is often politicized.
• Every state is guaranteed one member – seven states only have one member (Delaware, Wyoming, South Dakota, Alaska, Montana, North Dakota, Vermont).

Gerrymandering: Drawing Districts for Party Benefit

• **Gerrymandering** occurs when district lines are drawn to give an advantage to a political party or a group of people.
• Benefits:

1. Incumbents
2. Party
3. Minority groups (racial or ethnic gerrymandering)

• It is an ancient practice of both parties, but it is more common now because:

1. *Motive:* Frequent change in party control in the House.
2. *Means:* Technology + clustering in ideological enclaves.
3. *Opportunity:* Rise in single-party control of state governments.

Effects of Gerrymandering and Political Polarization

• Gerrymandering affects partisan balance.
• A 2018 analysis suggested 16 more Republican seats were due to it.
• However, contrary to popular belief, it is not the only reason districts are uncompetitive or that Republicans have an advantage in the House. Also, it only modestly contributes to polarization. Why?

1. Most districts are now naturally uncompetitive. Why? People live with like-minded people. Geographic sorting into like-minded communities means that districts are going to be distinct from each other ideologically.
2. Democrats are structurally disadvantaged in the House; their voters are clustered together in dense cities, whereas Republican voters spread themselves out more efficiently in rural areas and smaller towns.

Electing the House of Representatives

• The way we elect the House in single-member districts (gerrymandered or not):

1. **Decreases competition** in districts – no need to compromise because districts are often so homogenous.
2. Candidates in most districts face little serious competition from the other party (winning by an average of 28.8% in 2020). Their only chance of losing is in a primary – the fear of which makes them more likely to adopt extreme positions.
3. Leads to emphasis on district interests as opposed to national ones.

How Congress Works: Structure and Lawmaking

• Two crucial institutional structures are needed to overcome collective action problems and pass laws:

1. Party leadership.
2. The committee system – provides specialized information and benefits members’ re-election efforts (22 standing committees in the House).
3. These two ways of organizing are related. “*Congress at work is Congress in committee*.” But who decides on the committees?

The Role of Party Leaders in Congress

• In the House, the Speaker is very powerful.
• The majority party chooses the Speaker.
• The Speaker controls committee appointments, refers bills to committees, and controls the Rules Committee.
• In the Senate, the Majority Leader is weaker than the Speaker but still powerful.
• The Majority Leader controls the agenda on the floor (what gets a vote and what doesn’t).

How a Bill Becomes a Law (or Fails to Pass)

• Out of about 100,000 proposed bills a year, maybe 10% become law (usually 4–5%).
• There are multiple roadblocks along the way – a bias against action.
• Most bills die in committee – the gatekeepers. They are never reported out.
• The House and the Senate both must pass the same bill in the same language, and the President must sign it.

Congressional Organization: The Committee System

• There are 20 standing committees in the House, divided into about 100 subcommittees. There are 16 standing committees in the Senate, with 68 subcommittees.

1. Committees provide informational benefits to the entire chamber.
2. They provide distributive benefits to their members, helping them get re-elected.

• Party leaders appoint members to committees and appoint party chairs; the ratio of Democrats to Republicans is determined by who controls the chamber.
• Prestigious House Committees: Ways and Means (oversees tax code), Appropriations, Energy and Commerce.
• Top Senate Committees: Judiciary, Finance, Foreign Relations.
• Party leaders decide which bill to assign to a committee.
• Party leadership is more critical these days.

The Senate Filibuster: Reality vs. Popular Belief

• In reality, Senators send an email saying they (and others) object to the bill.
• There is no “talking a bill to death” in the modern Senate.

Filibuster Exceptions and the Nuclear Option

• Not all legislation can be filibustered – party leaders have used the “nuclear option” twice to change rules.
• *Exceptions:* In 2013, the 60-vote threshold was lowered to 51 for approval of Executive Branch appointees (such as Cabinet secretaries) and federal judges below the Supreme Court (such as for US Courts of Appeal).
• In 2017, Republicans amended the rules to eliminate the filibuster for Supreme Court nominations.

Procedures to Circumvent the Filibuster (Reconciliation)

• **Budget reconciliation** is a workaround. Reconciliation allows for expedited consideration of certain tax, entitlement spending, and debt limit legislation.
• Reconciliation bills are not subject to filibuster by law.
• The scope of the amendments is limited.
• It has been used 21 times since 1980 (e.g., Bush and Trump tax cuts, the Affordable Care Act, the 2021 American Rescue Plan).

The Modern Presidency and Executive Power

The Green Lantern Presidency Theory

• This is the incorrect belief that the president can achieve any political or policy objective if only he tries hard enough or uses the right tactics.
• Presidents are partially responsible for this belief due to their overly ambitious promises:
  • The view is that the president is functionally all-powerful and fails due to a lack of trying.
  • Two Variants:
    • Ronald Reagan: Communicate better.
    • Lyndon Johnson: Twist more arms in Congress.
• But presidents have limited formal powers and are checked by many things.
• The Green Lantern theory is backward—presidents who do try extra hard often generate pushback in a polarized climate like today.

The Presidential Expectations Gap

• There is a tremendous expectations gap: tremendously high expectations coupled with limited formal powers to achieve them.
• Presidential rhetoric raises expectations. Presidents overpromise and under-deliver (note: not for lack of trying).
• *Caveat:* Presidents may not be as all-powerful as we think, but they are still very powerful and arguably more powerful than the other branches.

Head of State vs. Head of Government (UK Example)

• Head of State (Ceremonial) – King Charles III.
• Head of Government (Political) – Keir Starmer.

Growth in Presidential Power and Prominence

1. The Constitution endows the president with a small number of express powers (and many of these are checked). The Framers worried about a tyrannical king. The president was considered more of a *clerk* until modern presidencies.
2. The president has become more powerful in part because the presidency is a **unitary office**.
3. The president is powerful because they can claim to **speak for the nation**, not just a state or district – appeals to popular support.
4. *Crisis demands bold action and leadership*. Presidential power grows in times of crisis (e.g., Civil War, Great Depression) and doesn’t shrink back.
5. Much of the president’s power flows from the **Commander-in-Chief** role.

***Much of the power is informal (see points 2 and 3) – the power to persuade others.***

Constitutional Powers of the President (Article II)

1. **Express powers** – powers that are explicitly stated in the Constitution; things the president can do (e.g., veto, make appointments).
2. **Implied (inherent powers)** – claimed by presidents; not specified in the Constitution, but are inferred because “the rights, duties, and obligations of the office” demand it (e.g., Lincoln in the Civil War).

Express Powers and Congressional Checks

1. Execute the law (“take care that laws be faithfully executed”; executive power shall be vested in the President).
2. Veto or sign legislation – makes the president the single most important legislator.

• Can be overridden by a two-thirds vote of both House and Senate, but that rarely happens (the veto is a negative power).

3. Commander in chief of the armed forces (check: Congress declares war. This is a weak check).
4. Grant pardons for federal offenses.
5. Convene Congress in special sessions in extraordinary circumstances (rarely happens).
6. Receive ambassadors (can recognize nations by receiving their representatives; diplomacy).
7. Appoint cabinet officials, federal judges, ambassadors, etc. (Senate must confirm).
8. Make treaties (with advice and consent of the Senate).

• Express powers don’t look all that powerful, but we know the president is powerful, far more than the Founders envisioned. What gives?
  • The Commander-in-Chief role is very powerful today.
  • The government has grown in size and reach.

Inherent Powers: Executive Actions and Orders

• An **Executive Order** is a rule or regulation issued by the President that has the formal effect or status of law, though it is *not* a law; it is a directive to agencies telling them how to implement the law.
• Many are mundane, but some have been incredibly important (e.g., desegregation of armed forces, Japanese-American internment camps during WWII, DACA, travel ban, vaccine mandate, etc.).

Source of Implied/Inherent Powers

• Powers are “inherent”; they are not specifically mentioned but are inherent in the Constitution.
• So, where do these come from? Which constitutional phrases?
  • “The executive power shall be vested in a President of the United States of America.”
  • The executive branch should “take care that the laws be faithfully executed.”