Tyranny Inherent in the System

Thoreau hypothesizes that, “The American executive and American Empire are now structured in such a way that any President with the support of 34 Senators (it takes 67 to override a veto or convict an impeached President, so 34 is enough to prevent that) can do whatever he wants.”

Practically speaking, this is true and has been (adjusted for math) since the founding of our present government in 1789. The only other institutional checks on presidents are elections (which happen only every four years and since the passage of the 25th Amendment only once per president) and the Supreme Court. And, theoretically at least, both elections and Supreme Court decisions could be ignored by a president with the support of a third plus one of the Senate.

Then again, this extreme math holds true for the other branches as well. For all intents and purposes, a majority of 5 Supreme Court Justices has virtually unlimited power to rewrite the Constitution and the Congress can do anything it wants so long as 218 Representatives and 60 Senators are on board.

We’ve had executive, judicial, and legislative overreach for significant periods at various times in our history but the consensus that sustains them always collapses. I predict, with great confidence, that this trend will continue.

FILED UNDER: Congress, Political Theory, Supreme Court, US Constitution, US Politics, , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Maniakes says:

    There are checks-of-last-resort. If 3/4 of the states agree, they can amend the constitution by convention (technically, Congress calls the convention upon the request of 2/3 of the states, and 3/4 of the states must ratify what comes out of the convention, but Congress must call the convention (Hamilton considered Congress’s role here to be a formality), and I’d expect it to only require a simple majority to do so).

    Can the President veto adding a state to the union, or would it be possible for a congressional majority to break a cabal of 34 Senators by packing the Senate (admitting flyspeck islands as states to expand the Senate)?

  2. James Joyner says:

    If 3/4 of the states agree …

    I’m presuming that the 34 Senators in question are something other than rogue actors and are therefore taking the politics of their state into consideration.

  3. Dave Schuler says:

    admitting flyspeck islands as states to expand the Senate

    By today’s standards all of the original thirteen states would be “flyspeck islands” (at least as regards population). More senators by dividing some of the present states e.g. California, New York, Texas, would IMO be a good thing albeit sadly politically impossible.

  4. Anderson says:

    Another reason why no one would enact the Constitution if it were proposed from scratch today. It says something about the Founders that this possibility apparently did not occur to them.

  5. James Joyner says:

    It says something about the Founders that this possibility apparently did not occur to them.

    Oh, but it did. But, remember, neither the filibuster nor judicial review were part of the system as codified. And the president didn’t emerge as the powerful figure he is today until very late in the process — arguably, not until FDR.

  6. one bit shy says:

    I think the power of appropriations is a pretty big additional check. You don’t need 67 Senate votes not to fund something.

  7. Dave Schuler says:

    AS I re-read this post and the comments I can’t help but feel that the present situation is being misrepresented somewhat. What the last seven years has demonstrated is not that a third of the senate can hold the country hostage (the president is a bit of a red herring in that discussion). The last seven years demonstrates that under our system power politics, i.e. a slim majority, whether Republican or Democratic, is unable to shove its program through. It must make concessions of some sort to the “other side”. Sounds like a good thing rather than a bad one to me.

  8. As we used to say, “That’s not a bug, it’s a feature!”