SEPARATION OF POWERS

Checks and balances is law of land

By Michael Ryan

Have you ever thought about how absolutely crucial certain constitutional provisions are to your own life?

We often take freedom of speech and religion for granted, though they are always under assault. And everyone knows, by now, our constitutional protections against unreasonable search and seizure, self-incrimination and more.

What would you say if we told you that the Separation of Powers is right up there with our most important constitutional principles?

“When James Madison shaped a new constitutional system for the United States,” argues George Washington University Law School professor Jonathan Turley, “he and his fellow framers had one overriding fear: tyranny.

“They wanted to divide power between three branches and create lines of separation that prevented the concentration of power in any single branch. The framers based their ideas on an understanding of human nature – and human weakness. They tried to create a system in which ambition would check ambition.

 

“To this day, many Americans misunderstand the separation of powers as simply a division of authority between three branches of government. In fact, it was intended as a protection not of institutional but of individual rights, by preventing any branch from assuming enough power to become tyrannical.
“No branch is supposed to have enough power to govern alone.”

Yet, that’s precisely where we’ve been headed in recent years – with innumerable executive orders that circumvent the deliberations of our elected members of Congress and take a torch to the Separation of Powers.

It’s rule by fiat – precisely what the nation’s Framers sought to avoid.

“The worst legacy of the Obama administration,” write constitutional scholars David B. Rivkin Jr. and Elizabeth Price Foley in the ‘Wall Street Journal,’ “may be disdain for the Constitution’s separation of powers.”

The Obama administration, they write, “has rewritten laws, disregarding its constitutional duty to faithfully execute them.”

“When Congress recently refused to pass the DREAM Act to change immigration laws to protect potentially millions of deportable individuals,” Turley writes, “he simply ordered the very same measures on his own authority. The same unilateral measures were ordered in health care, drug enforcement, online gambling and other areas. …

“Under this approach, Congress is being reduced to an almost decorative element in governance – free to approve but not to block presidential demands.”

That’s rule by fiat, by whim – the fickle, autocratic rule of man, not the rule of law this nation was founded on.

Turley, who has made it clear he voted for Obama and supports many of his policies – and who rightly notes that the alarming growth of presidential power predates Obama – nonetheless warned: “The United States is at a constitutional tipping point: The rise of an uber presidency unchecked by the other two branches.”

Even those who support the policies should shrink from seeing a president ram them through unilaterally, Turley says. “It is often more important how we do something than what we do. Priorities and policies (and presidents) change. What cannot change is the system upon which we all depend for our rights and representation.”

Turley adds: “There’s no question that previous presidents abused their power, but what we’re seeing with the Obama administration is really a systemic circumvention of Congress, and remarkably, he’s doing that with the applause of his own party, members of the legislative branch.”

The U.S. Supreme Court unanimously ruled Mr. Obama violated the Separation of Powers by circumventing the Senate on appointments to the National Labor Relations Board. And the courts have occasionally put the brakes on other rogue executive actions. But in general, the courts have been loath to step in and restore the Separation of Powers.

“The danger of this concentration of authority,” Turley cautions, “is made more acute by the failure of federal courts to perform their vital function in confining the branches to their constitutional spaces.”

Rivkin and Foley suggest Congress amend the law to require congressional approval of major executive-branch regulations. They also argue Congress should make it clear that federal agencies can’t simply interpret laws however they wish. Congress, they say, should also strengthen its power to hold maverick agencies and officials in contempt.

And, in the wake of the Obama administration’s unilateral and highly dangerous Iran nuclear agreement, Congress should require such international treaties be treated as treaties – which, under the Constitution, must be approved by the Senate.

Moreover, the next president should be duly respectful of the Separation of Powers.

“It should be the highest priority of the Trump administration and Congress,” Rivkin and Foley write.

It’s utterly fundamental, and paramount, to our system of self-governance and our way of life.

 
Michael Ryan is editorial page editor of ‘The Augusta Chronicle’.

CHALLENGES

Presidents cannot be allowed to use executive orders to circumvent our lawmaking body, which is Congress. That is rule by fiat.
The courts have occasionally trimmed the Executive Branch’s sails, but the courts are poorly equipped to act swiftly enough to blunt the executive’s overreaches.
The Constitution depends on an Executive Branch that respects the checks and balances and responsibilities of the other two branches.

OPPORTUNITIES

The president and Congress must rededicate their respective branches to their respective roles under the Constitution. Law is written by Congress, executed by the Executive Branch and interpreted and applied to circumstances by the Judicial Branch. The appointment of Supreme Court justices who respect and enforce the Separation of Powers is paramount.
“The first step toward restoring the structural integrity of the Constitution,” writes constitutional expert Matthew Spalding, “is for Congress to reassert its legislative authority (and power of the purse) and, as much as possible, to cease delegating what amounts to the power to make laws to administrative agencies. … Congress needs to relearn the art of lawmaking.”

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