Presidential Coequality

The assertion that the presidency is coequal in power to the other branches in the American system of government is often heard, has been suggested by all recent presidents, and has even made its way into political science. But tracing the history of the concept demonstrates that this assertion is an invention of quite recent vintage. Those who wrote and favored the Constitution did not make such claims, nor did early presidents. Even Andrew Jackson's famous and, to his generation, shocking assertion of coequality coincident with his censure was not really a claim of equal power between branches. According to our systematic analysis of presidential rhetoric it was Richard Nixon and Gerald Ford who initiated and popularized the idea of interbranch coequality. They did so to defend themselves in two episodes of substantial presidential vulnerability: Watergate and the ensuing midterm elections. Subsequent presidents have elevated something that would have seemed wrong and absurd to any founder into a blithe truism. This belief harms governance by creating both artificially high expectations for the president and a presumption of institutional stasis. The “second constitution” based on popular beliefs about interbranch relations continues to evolve, as much a product of happenstance as of rational design. Notes 1. The first stop in the Capitol Visitor Center is a theater in which one views a 10-minute video describing the United States government and Congress’ role in it. The tape begins by offering the insight that Congress is one of the three coequal branches of the American government. 2. Not all of these documents were written or spoken by a president. Some non-presidential sources excluded from the analysis are press briefings by press secretaries, presidential candidate statements (unless the candidate was a sitting president), and party platforms. The majority of documents in The American Presidency Project are president-generated and are thus included in the analysis. 3. Madison used a hyphen between “co” and “equal”; Hamilton tended to employ the more modern usage of the word without the hyphen. The words “equal” and “equality” are not used to refer to interbranch relations in The Federalist. 4. Madison used the word coequal in one additional instance in The Federalist. He reasoned that since the House and the Senate possessed a coequal power to legislate, any corrupt designs by the Senate (a particular concern of the Antifederalists) could be thwarted (Cooke Citation1961, 429). 5. The other major theme of the protest is that Jackson was authorized to do what he did. Jackson argued that he was operating within his constitutional authority when he fired cabinet secretaries, in making the Taney recess appointment, and that his order to transfer funds out of the National Bank was executive in nature. None of these arguments involve judgments about the relative power of the legislative and executive branches. 6. Since we have accessed these documents through the American Presidency Project's website, there are no page numbers to reference. We have provided the date for each document referenced, which will allow other researchers to find the document in question and to conduct their own word search to easily find the passages quoted. 7. This was an incredibly controversial assertion. Many thought that moving assets out of the national bank and into state banks required legislation. Refocusing on the different roles marked out for the branches does not prevent controversies over who can or should do what. 8. Hayes asserted the equality of the presidency a second time in this message, writing “The Executive will no longer be what the framers of the Constitution intended—an equal and independent branch of the government.” Hayes’ language here is sufficiently imprecise that it might seem like he is asserting coequal power across branches. If this were the case, it would be a stunning development: a president at the nadir of presidential power was the first to assert that the presidency was actually coequal to the legislature. 9. Hayes added an extra wrinkle to his argument in that he blamed the House of Representatives for playing power politics. The House had attached the provision to a military appropriations bill, essentially forcing the Senate to go along with it because the bill was a “must-pass” piece of legislation. Despite this kind of gamesmanship being relatively common now, Hayes argued that it meant that the House was acting illegitimately by arrogating the entire legislative process to itself. 10. Nixon could have chosen to do as President Jackson had done: suggest rather narrowly that Congress had no jurisdiction to conduct this extra-constitutional probe. Instead he chose make a much grander pronouncement, one about the nature of the powers of these institutions themselves. The Congress and the presidency as a whole were coequal and it would ruin that balance to allow one branch to investigate and harass another. 11. Woodrow Wilson used the word Newtonian to describe the view of the Constitution taken by those he opposed. In his mind this phrase described a Constitution which was static and rule-bound, as opposed to one which was organic, evolutionary, and informal. He often explained that government “is not a machine, but a living thing,” (excerpt of Wilson's “New Freedom” campaign publication quoted in Pestritto, Citation2005: 121). In this sense he drew a distinction between his “Darwinian” understanding of constitutionalism and something static—the “Newtonian” view of the Constitution. Our own use of the word Newtonian aims at something related but different: the idea that any action by a governmental institution may be opposed by an equal and opposite reaction by another coequal branch, which justifies halting any governmental action. 12. In the unanimous opinion Chief Justice Burger wrote that Nixon's claim of executive privilege would disrupt the judiciary's “constitutional duty ... to do justice in criminal prosecutions.” He then opined that “in designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence,” (418 U.S. 683). Many scholars have noted that U.S. v Nixon is a curious case because it acknowledges executive privilege while saying that it does not apply to the case at hand. The same can be said for coequality. Though it does not agree with Nixon's reasoning on what coequality allows him to do, it confidently asserts that there is a coequality, which subsequent presidents could use to their advantage. 13. A similar instance of Ford making an off-handed assertion of presidential coequality with Congress came on October 8, 1974, in a speech where he stated to a joint session of Congress that “I stand on a spot hallowed in history. Many Presidents have come here many times to solicit, to scold, to flatter, to exhort the Congress to support them in their leadership. Once in a great while, Presidents have stood here and truly inspired the most skeptical and the most sophisticated audience of their co-equal partners in Government.” 14. Since not every Ford campaign speech is included in the database there were almost surely many additional speeches during which Ford mentioned coequality that are not recorded in Table 1. 15. Like Ford, there are almost surely additional instances of Reagan claiming coequality in his stump speeches of 1988 not included in the American Presidency Project's database and thus not recorded in Table 1

Assertion · Constitution · Federalist · Law and economics · Political science · Politics · Power (physics · Presidency · Presidential system · Presumption · Separation of powers · Sociology · Law · Political and Economic history of UK and US

• Constitutional Government in the United States

  Woodrow Wilson•Constitutional Government in the…•1908

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  Max Farrand•Harvard Law Review•1911

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• The Law

  Open Access•David Gray Adler•Presidential Studies Quarterly•2006

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  Randall W Bland, Jeffrey K Tulis•Journal of American History•1989

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