The presidential "popular mandate" is a fiction and everyone knows it

We just refuse to acknowledge it

Parliament of Kenya

When some other institution wants to prevent a president from taking a measure he really wants to take, appeals to the president’s “popular mandate” show up very fast. “Who on earth is Judge X, Central Bank President Y, or Congress to go against a proposal made by a president who was elected by the whole population?”

The glaringly obvious fact is that no president is ever elected by the whole population. I will not even go into the fact that people vote expressively (though that also matters). Let’s assume votes are instrumentally rational, for the sake of argument. It is still the case that a very large share of the population are not voters, a very large share of those do not vote, and a sometimes larger or smaller but always significant share of those voted for someone else. An elected president will get a number of votes closer to a quarter of the population than to 50%, never mind 100% - which is, I shouldn’t need to stress, what the “whole population” is.

It gets a lot worse, though. In countries where there are more than two competitive parties, it is often the case that the president is elected only after a second round, because he could not achieve 50% of the votes in the first. It is not uncommon for the eventually elected president to have less than 30% of the votes in the first round, which would represent some 15% of the population who thought he was the best option from the start. Additionally, increasingly many voters actively dislike the candidate they end up voting for, but want to prevent someone else they dislike even more from winning.

If you point this out, people will raise objections which, though true, do not address the issue at hand. They will claim it is not reasonable to expect everyone to vote, nor unanimity regarding leadership. But having a legitimate government is necessary, so we must behave as if the outcome of the vote was the choice of everyone. Or, in Thomas Jefferson’s words:

the first principle of republicanism is that the lex majoris partis is the fundamental law of every society of individuals of equal rights: to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous, is the first of all lessons in importance, yet the last which is thoroughly learnt

I happen to like this quote a lot, and fullly agree with it. But the point of the quote is that a decision taken by a slight majority should be formally respected just as much as a decision taken by unanimity. It’s a quote about the importance of abiding by the process. If a president won by a bare majority, no doubt he should have the same prerogatives as someone who won in a landslide. He should be allowed to make all the appointments reserved to the president, issue decrees, and live in the designed residence. Sabotaging their legally prescribed decisions goes against the rule of law. However, the authority to act according to legal prerogatives is rarely a problem for presidents elected with any majority. If they manage to be sworn in, it is rarer still.

When people invoke the “popular mandate” of the president to push for some policy change, they are trying to argue that even if some other institution has the constitutional prerogative to decide on the issue, that institution should recognize that “a president elected by the whole population” represents the will of the people better and do what the president wants. It is a moral argument, not a legal one. And as a moral argument, it absolutely fails given that presidents are as a rule elected by a share of the population which is not even that close to a majority.

Parliaments, on the other hand, resemble much more closely the varied interests of the population. And its members were all elected as well. If any institution can speak for the whole population, that is the one. Further, if they have approved - by majority - some law which gives an institution such as a Central Bank independence from the president, it means the interest of the whole population must be understood that way. Doing otherwise would is what actually be disregarding the decision of the majority. Jefferson warned, in continuation of the argument quoted above, that when one goes down that road, “no other [law] remains but that of force, which ends necessarily in military despotism.”

Some will say that the presidential election is the only one where the whole country votes for the same candidates, without geographic segmentation. But there’s no impediment for congressional elections to be that way. In Israel, voters do all choose from the same candidates in the whole country. But the people who believe the president has a “popular mandate” are never seen arguing for any country to adopt the Israeli model.

In sum, the idea that the president presumaly has the support of the whole population to make decisions not legally ascribed to him is an illusion. The next time a president tries to question Congress - or any other institution enabled by Congress to make decisions he is against - we might as well ask: “who is he to go against the will of the people?”