Taking Separation of Powers Seriously
Glenn Greenwald, reacting to reports that Barack Obama has told Harry Reid that Joe Lieberman should not be stripped of his committee chairmanship and thus making it very difficult for him to do so, has written a long and passionate plea for a return to vigorous separation of powers with strong institutional jealousies.
[W]hatever the outcome here is, it’s vital that it be the Senate’s decision, not Barack Obama’s. How the Senate organizes itself and which members chair its Committees is about as purely within the legislative domain as it gets. It makes sense that Senate Democrats want to cooperate with Obama and that they have good feelings towards him in light of his election victory. Still, if the Senate has any sense of its own institutional integrity and any intention to defend its constitutionally assigned prerogatives, the last thing Senators would be doing is allowing Obama to interfere with, let alone dictate to them, how they proceed in deciding what to do about Lieberman. If they don’t jealously safeguard that arena from executive intrusion, what do they safeguard?
That is what “separation of powers” means, and it’s at least as vital — probably more so — for it to be honored when the same party controls the White House and both houses of Congress. What fueled the abuses of the last eight years as much as anything else was the ongoing (and severely accelerated) abdication of power by Congress to a bordering-on-omnipotent presidency. It’s critically important that an Obama administration reverse the substantive transgressions of the Bush era — closing Guantanamo, ending torture and rendition, restoring habeas corpus, rejuvenating surveillance oversight, withdrawing from Iraq, applying the rule of law to political leaders past and present — but it’s at least as important that this be accomplished in the right way, that our constitutional framework be restored. That means restricting the President’s role to what the Constitution prescribes and having Congress fulfill its assigned duties and perform its core functions.
This is anything but an abstract concern. Central to the design of the republic is the power of the citizenry to remove all members of the House and 1/3 of the Senate every two years. That’s the central mechanism by which the people, through their representatives in Congress, keep the Government responsive. But none of that matters — it’s all just illusory — if Congress has no real power and exists as little more than a passive and obedient vassal of the President. We shouldn’t want that arrangement even if, at a given moment, we are lucky enough to have a magnanimous President who makes good decisions and wants to do good things with his centralized, unchecked and imbalanced power.
Greenwald makes clear that he’s not blaming Obama for the advent of the imperial presidency, merely calling on the Congress to push back.
While I think he overstates things a bit, he’s right on the principles here. Indeed, I’ve made similar calls over the years, including calling on a Republican Congress to carry out its oversight duties much more vigorously against a Republican president.
As a practical matter, political parties create a cross-branch bridge that simultaneously makes it easier to govern and yet weakens the individual character of the institutions. Reid’s free to do whatever he wants within the limits of his considerable power, as will be Obama. Yet, while Reid theoretically answers only to his delegation in the Senate and the people of Nevada, Obama is the effective head of his party.
Since at least Franklin Roosevelt, presidents have taken on many roles clearly delegated to the Congress in the Constitution. They submit budgets, propose legislation, and otherwise have significant a priori sway over the workings of Congress rather than serving in the reactive role — sign or veto — envisioned by the Framers.
More significantly still, the expansion of government is not so much a function of the passage of more laws but rather the creation of permanent regulatory bureaucracies. These institutions carry out virtually all of the Enumerated Powers:
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;
All but a handful of these things are run by federal agencies and bureaus through the quasi-legislative processes of rule making and regulation rather than by Acts of Congress. The president and his designated representatives run these bureaucracies on a day-to-day basis with Congress acting only in reactive mode — if at all — through the oversight process. In other words, we’ve stood the Constitution on its head.
While I agree with Glenn that Paul Begala’s statement “Stroke of the pen. Law of the land. Kinda cool” is antithetical to the way our government is supposed to operate, it’s actually a pretty apt description of how it has come to operate.
Furthermore, while Congress can and should do more to reclaim its prerogatives, the only practical way for them to shift the balance of power very far back in their direction — there’s simply no question but that the Framers intended the legislature to be the dominant branch, schoolboy lessons about co-equality notwithstanding — is to radically decrease the number of federal bureaucratic agencies and the scope of their power. We’ve seen very little of that with any Republican president going back at least to Richard Nixon — and the GOP is supposed to be the small government party. I have zero hope that we’ll see it happen under a Democratic president with commanding Democratic majorities in both Houses of Congress.