June 30 2014

Do You Believe in the Separation of Powers?

Charlotte Hays

President Obama was hailed in the 2008 campaign as a constitutional scholar and yet he has gone a long way towards destroying the separation of powers, the cornerstone of our Constitution.

When asked if they support the separation of powers, as set forth in the U.S. Constitution, supporters of the president answer,” Yes…but…” If Congress is not doing the executive’s bidding, then separation of powers goes out the window. Powerful monarchs in history did not have phones, but they would certainly have known what President Obama meant about using a pen to get his way without being hampered by a constitution. Our Founders set up a system that for more than two centuries kept us safe from an arbitrary executive's penstroke.

Senator Ron Johnson of Wisconsin and law professor Jonathan Turley, a maverick liberal at the George Washington University Law School, recently wrote a very important piece in the Washington Post on the necessity of restoring the balance of powers among the three branches of government.

Johnson and Turley begin with President Obama’s unilateral decision to swap five Gitmo terrorists for a U.S. soldier, Bowe Bergdahl, who had apparently deserted, without taking the matter before Congress.  The president was required by law t notify Congress thirty days before releasing Gitmo detainees. He did not. President Obama has rewritten the Affordable Care Act and taken to himself the power to use money in ways Congress did not approve. Johnson and Turley write:

A growing crisis in our constitutional system threatens to fundamentally alter the balance of powers — and accountability — within our government. This crisis did not begin with Obama, but it has reached a constitutional tipping point during his presidency. Indeed, it is enough to bring the two of us — a liberal academic and a conservative U.S. senator — together in shared concern over the future of our 225-year-old constitutional system of self­governance.

We believe that people of good faith can likewise transcend politics and forge a bipartisan coalition to examine these changes. In our view, the gridlock in Washington is not simply the result of toxic divisions. The dysfunctional politics we are experiencing may in part be the result of a deeper corrosion — a dangerous instability that is growing within our Madisonian system.

Unfortunately, however, when separation-of-powers problems are typically raised, they are viewed through the lens of politics. Democrats who objected to actions by George W. Bush are silent in the face of the circumvention of Congress by Barack Obama. Republicans who were silent during the Bush years decry such actions by Obama.

Congress was supposed to hold the purse strings of the republic. Johnson and Turley urge Congress should review the vast spending that the federal government does without its approval. They also argue in favor of legislative standing in certain situations to sue the executive. In this they are alluding to the lawsuit Speaker of the House John Boehner plans to challenge what he sees as the president’s abrogating to himself the powers of Congress.

In last week’s Supreme Court ruling against President Obama’s redefining of recess to make “recess” appointments to the National Labor Relations Board that were actually made when the Senate was in session, we did see one blow against an executive who does not obey the Constitution.

An executive whose power is limited by a Constitution was the United State’s great contribution to governance. It grew out of Europe’s long experience with monarchs. In a review of a new book, Philip Hamburger’s Is Administrative Law Unlawful?, Washington lawyer Adam White addresses the arbitrary executive (often known as the king) in history, how the United States set up a different system, and how we are losing that system:    

[Hamburger] begins with Henry VIII, who in 1539 obtained Parliament's authorization to make law through proclamations. Henry's vigorous assertion of that power led Parliament to repeal its authorization just eight years later, yet future kings found ways to follow Henry's example. In 1610, James I claimed inherent authority to assert power in the absence of legislation. As Mr. Hamburger shows, the abuse of royal power was a central concern throughout the 17th century—particularly amid Charles II's and James II's efforts to suspend or dispense laws burdening religious minorities. The result, ultimately, was the Revolution of 1688, in which Parliament adopted the Declaration of Rights that imposed limits on the Crown—including a provision against the suspending and dispensing powers.

This history sets the stage for the basic separation of legislative, judicial and executive branches. Of these three, according to Mr. Hamburger, the last was always least in terms of lawmaking: While the legislature could bind subjects through its bills, and judges could bind subjects through their decisions, the executive itself "could not bind, but at most could impose force, whether by bringing matters to the courts or, ultimately, by physically carrying out their binding acts."

Mr. Hamburger sees our Founding Fathers as codifying that arrangement in our own Constitution. But he argues that the separation of powers broke down in the 20th century thanks to progressives, such as Woodrow Wilson, who were deeply influenced by German intellectual proponents of administrative power. These progressives believed that expert "commissions" would improve society far faster and better than a government slowed by individual rights and the separation of powers. "German ideas seemed to solve American problems," Mr. Hamburger writes. Progressives began to move against trusts and monopolies "without worrying too much about their implications for liberty." This culminated in FDR's New Deal, which propagated an alphabet soup of federal agencies consolidating legislative, judicial and executive power into a new, unchecked branch of government.

The executive's power under President Obama has escaped the boundaries set by the Constitution. As a non-lawyer, I can’t address whether Speaker Boehner should have standing to address this matter through a lawsuit. But I do know this: if it is not addressed in some legal way, we will end up with a chief executive whose powers would have made King George III green with envy.

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