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.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. just me says:

    I think he is right that the abdication of its powers was one of the big mistakes congress made during the Bush years, but I think it is something that has been slowly happening for years and is more pronounced when both the legislative and executive are controlled by one party.

    Congress doesn’t want to take on the hard stuff-and they often abdicate some of the hard stuff to commissions and committees. I also think they have gradually given up their authority to declare wars and handed all but the kitchen sink over to the executive on that count. I would love to see congress develop more oversight in this area and even more so put the brakes on the executive sending troops into war without declarations.

    I figure Obama will gladly take as much power as congress gives him-he would be an idiot not too, and congress will happily let him take the hits for it, because congress members in general seem to be first and foremost about keeping their positions and keeping power-they don’t purposefully take risks that put those two things in question.

  2. G.A.Phillips says:

    I have zero hope that we’ll see it happen under a Democratic president with commanding Democratic majorities in both Houses of Congress.

    lol, Zero hope, I like it.

    You writing anything for Veterans Day?

  3. sam says:

    I’d like to see the Congress grant letters of marque to someone for the purpose of going after Somali pirates. That would be cool.

  4. PD Shaw says:

    I think Obama has done the right thing. To the extent that Presidents use the bully pulpit to encourage legislation and form their own political alliances to do so (like Blue Dogs), reaching out a hand to a potential ally makes sense.

    And it’s entirely appropriate since Obama is a Senator — it’s not a separation of powers argument any more than if Clinton made similar recommendation with one eye towards her own political future. All Senators get one vote, but not all Senators are equal.

  5. Dave Schuler says:

    I don’t think that Mr. Greenwald understands party politics. Waiting until after an election that delivered the White House to the same party that controlled both houses of the Congress is a ridiculous time to start worrying about separation of powers is not unlike urging the horses not to bolt after the barn door has been left open.

    A sitting president has been the de facto head of his party for as long as I can remember. The only way that it could be otherwise is if the Congressional leadership were willing to risk their own seats to oppose their own party’s leader. Why would they start now?

  6. Bithead says:

    Well, as with all Greenwald’s writings, one must consider what his motivations are.

    In this case, it’s not hard to fathom; He’s concerned that Lieberman gets to keep his seat even though in Greenwald’s fevered mind, he’s not liberal enough, particularly as regards the war on terror and the defense of Israel and thereby congress isn’t liberal enough, either.

  7. just me says:

    See I think ousting Lieberman is a mistake. The reality is outside of a very specific sphere of legislation, Lieberman will likely be a reliable vote-probably more reliable than some of the blue dogs.

    I don’t think Obama is wrong in saying what he wants-I just don’t think he should have any say in what happens.

    Personally, while Lieberman may be the source of much hatred from the left, it is stupid for the left to ostracize or punish him, when he really is with them on most issues. Not to mention it looks kind of petty-maybe to some it isn’t, but it looks petty to me.

  8. mannning says:

    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.

    Yes! According to the LSU registry of government organizations, there are now 1,177 agencies, committees, boards, bureaus and commissions in the US government, not counting the Congressional Committees, of course. We are ruled by 10,000 burocrats.

  9. mannning says:

    and, 200,000 Rules!

  10. PD Shaw says:

    If anyone want to take Greenwald’s argument to its natural conclusion, then Obama should resign from the Senate. Every thing Obama does as Senator, and every vote he casts poses Separation of Powers issues. James Garfield resigned his Senate seat upon being elected President (though he had essentially just been elected to the Senate and he would not become a Senator until after he was inaugurated President).

    Otherwise, Obama should have the same input as any other Senator.

  11. C-Red says:

    I may have missed something, but didn’t the Obama staff/transition team announce something to the effect that while Obama would prefer to see Lieberman stay in the Dem. caucus that they have no opinion on whether or not he should keep his chair and that was purely a Congressional decision, the executive branch shouldn’t have any say in it?

    I’m pretty certain I read that in a few places this morning – including over at Political Animal with Steve Bennen.

  12. PD Shaw says:

    Of course, we could be in for a bit of kabuki theater in which Obama gets to both support Lieberman while telling Reid that it’s no skin off his nose if Lieberman is neutered.

  13. Anderson says:

    Glenn Greenwald is indignant — film at 11!

  14. Michael says:

    Lieberman currently chairs the committee charged with investigating the Executive branch, and he spent the past year actively campaigning against the future head of that branch, even implied that he may be a secret Muslim at one point. I can’t understand why Obama would want him to keep that position. Is this “maverick”, “bipartisan” or just “crazy”?

  15. G.A.Phillips says:

    200,000 Rules!

    and to think in the beginning we started with just one, damned serpent!

  16. tom p says:

    In the “Punishing Lieberman” thread I argued that Obama was behind the “Jettison Joe” movement, because he could not (politically) allow a turncoat (I think “stab in the back” were my words) Senator to control a powerful oversight committee. And I would still argue that.

    But maybe PD Shaw has something here… Maybe it really is just a “kabuki dance” we are watching. I do not for a second think Harry Reid does anything (at this pt in time) without BOs approval. As Dave S said:

    A sitting president has been the de facto head of his party for as long as I can remember.

    This is especially true right after an election that saw an expansion of the Dem majorities.

    We will never know… kabuki dance? Reality? Who knows? He is good

    All I know is, Joe Lieberman better watch his ass.

  17. DL says:

    When Lincoln’s successor held a military trial for Lincoln’s accused assassins, he controlled the court and made them back down on Habeus corpus – neutering one branch of government – when the South was forced to ratify the 14th amendment and it then passed the SC test, another fell. This has been done for years – The most offensive and outright encroachment into another branch’s powers was Roe v. Wade – lawmaking from the bench – emminations from pennumbras indeed.

  18. Bithead says:

    I see now I wasn’t clear in my meaning, in my first comment. I should say I think it clear that Greenwald’s sudden concern for what is and is not constitutional seems to me very selective and focused to issues that will tilt the country left.

    Keep this as a marker… when Obama, and the Democrats in Congress start overstepping their constitutional limit in the pursuit of leftism/socialism, will Greenwald be as indignant? We all know better.

  19. mannning says:

    Actually, 200,000 rules was a gross understatement, since I simply guessed that each regulatory organization would run with an average of 200 rules each. The IRS alone exceeds this amount without breathing hard. Some 66,000 pages of rules and regs exist in the IRS code.

    We face possibly millions of rules…

  20. Barry says:

    Posted by PD Shaw :

    “I think Obama has done the right thing. To the extent that Presidents use the bully pulpit to encourage legislation and form their own political alliances to do so (like Blue Dogs), reaching out a hand to a potential ally makes sense.”

    “And it’s entirely appropriate since Obama is a Senator — it’s not a separation of powers argument any more than if Clinton made similar recommendation with one eye towards her own political future. All Senators get one vote, but not all Senators are equal.”

    PD, do you realize that these two paragraphs are contradictory? In the first, Obama is acting as president-elect, and making arrangements for his term as president. In the second, he’s just a senator.

    In my personal opinion, it’s important for Reid to slap down Lieberman, for party discipline. When somebody has repeated acted against you, and is no longer untouchable (as Lieberman was in the last Congress), if you *give* him valuable things like the chairmanship of a powerful committe, you’re making yourself look weak. A bunch of Democratic senators would have excellent reason to ask why they weren’t being rewarded for being loyal. They’d also have reason to figure that disloyalty would pay better. This was pointed out by an analyst writing in the early 1990’s about the Clinton administration’s relationship to Congress, that he lacked any power to punish opposition in the Democratic Congress, and had to bribe people. Once the neutrals received favors, many loyal people reevaluated their loyalty.

    In addition, Reid now has a second reason to slap Lieberman hard – the president has meddled (Obama is acting as president elect here, not just as a senator). The Democrats in Congress need to support President Obama, but not as lackeys.