Wednesday 20 February 2019

Political parties limit power of the presidency

It might seem an improbable scenario, but no constitutional article could prevent Leo Varadkar from being president, writes Liam Weeks

Áras an Uachtaráin
Áras an Uachtaráin

Liam Weeks

Teddy Roosevelt and William Howard Taft served successive terms as American presidents in the early 1900s, but could not have been more different in their approach to the job.

Roosevelt was an all-action figure, seeking strongly to influence policy and make the presidency the most powerful political office in the land.

Taft, on the other hand, who had been Roosevelt's secretary of war, took a far more conservative approach to the post.

The two presidents differed not because of any changes in constitutional powers or political circumstances between their terms. Rather, it was because the two held divergent views of the office.

Roosevelt had what was known as an expansionist view. His interpretation of the role of president was that it was "his duty to do anything that the needs of the nation demanded unless such action was forbidden by the constitution or by the laws".

In contrast, Taft, who succeeded Roosevelt in 1909, held a rather more minimalist view of presidential office. Taft believed his powers were limited to those specified by Congress or the constitution: "The president can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied."

What this means is that the role of the US president is not set in stone. It was not the intention of the US constitution to create a strong executive, but this is what has evolved, in part due both to circumstances and to the nature of the men occupying the Oval Office.

Likewise, the role of the Irish president is not immutable, but this seems lost in much of the commentary on the role of our head of State.

Many have been quick to dismiss the pledges of this year's crop of presidential candidates on the grounds that the Irish Constitution makes no allowances for the achievement of these goals.

This sentiment is misguided on two grounds. First, while the Constitution lists only a few powers for the Irish president, it specifies little that presidents cannot do.

Second, relying on the Constitution alone is not adequate to understand the role of a political institution.

For example, the constitution says that the Oireachtas has the sole and exclusive power to make legislation, and yet, in practice, this is not the case. The vast majority of legislation is decided on in Cabinet, with the Oireachtas a mere rubber-stamp.

The Constitution also says little about the role and powers of the Taoiseach, beyond picking ministers. In spite of this, the Taoiseach is one of the most powerful prime ministers in any democracy.

The Constitution also makes no reference whatsoever to political parties, and yet we know that parties control much of political life.

What this means is that there is room for the Irish presidency to expand and evolve.

Indeed, such is the constitutional ambiguity of the role of the president, that when the office was proposed by Eamon de Valera in the 1937 Constitution, the Irish Independent claimed that "these powers are far in excess of those exercised by the ruler of the British Empire; they flavour more of Fascism or Hitlerism than of a 'democratic state'".

As Dermot Keogh and Andrew McCarthy also note in The Making of the Irish Constitution, Diarmuid O Cruadhlaoich, an erstwhile supreme court judge, claimed that "there is nothing to prevent the president being, during his period of office, an active politician. He may be the leader of a political party".

Eighty years later there remains nothing to stop the Irish president from being politically active. No constitutional article prohibits Leo Varadkar from running for president while remaining as Fine Gael leader, or even as Taoiseach.

If elected, Varadkar would have to resign as Taoiseach, but he could remain as leader of his party.

What if Eoghan Murphy were appointed as Taoiseach in place of Varadkar, but he agreed to defer informally to President Varadkar as party leader, thereby increasing the conventional power of the president?

What if this caused outrage, and Fianna Fail withdrew its support from the Government, demanding an election? President Varadkar, under Article 13.2.2 of the Constitution, could refuse a dissolution.

Under Article 13.8.2, he also would not be answerable to the Dail or Seanad for his actions.

Even if President Varadkar acceded to Fianna Fail's request, dissolved the Dail, and agreed to an election that Fianna Fail won, he could still be a major thorn in the Government's side by regularly referring its legislation to the Supreme Court in the hope of having it defeated, or at the very least, delayed.

While some might scoff at the likelihood of such an improbable scenario, the legal and constitutional limitations to the emergence of a more powerful president, which many have been led to believe exist, are not so clear-cut.

The real obstacle to presidential power, and the primary reason why the president is a symbolic figurehead, more reminiscent of Taft than Roosevelt, is the attitude of the political parties to the office.

None of them want an active president who could pose a threat to the current system of a virtual cabinet dictatorship. Fianna Fail has not run a presidential candidate since 1997, and Fine Gael has run just one, Gay Mitchell in 2011.

So the next time you hear the expansionist views of presidential wannabes, remember that it is not the Constitution preventing them from realising their aims, but the political parties.

Until they change their tune, the presidency will be limited to candidates less Roosevelt and more Taft. And he was a president remembered for just one feat - getting stuck in a bath-tub.

Even though this event may well be an urban myth, being remembered for any kind of accomplishment, whether illusory or not, is an achievement that has eluded most Irish presidents.

Something for the next occupant of the Aras to contemplate when having a soak in the presidential tub.

Liam Weeks is director of the MSc Government and Politics in University College Cork

Sunday Independent

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