3branchesBelow is my column in the Sunday Washington Post on separation of powers — authored with United States Senator Ron Johnson (R, Wis.). As the piece states, Johnson and I come from sharply different political perspectives, though the most surprising aspect of this collaboration is that he is a Packers fan and I am a Bears fan. We decided to write a piece together to try to seek a nonpartisan response to the rapidly expanding executive power in our system — and the corresponding decline of legislative power. We have been discussing this worrisome shift within our system and the lack of any collective institutional identity, let alone action, from members. We thought, if we could show the common ground in these concerns, it might encourage other members to reach across the aisle in the interests of their institution.

The controversy over President Obama’s decision to exchange five high-ranking Taliban leaders for Army Sgt. Bowe Bergdahl last month focused largely on the price paid. There was less focus on Obama ignoring a federal law that required him to notify Congress 30 days in advance of releasing detainees at Guantanamo Bay, Cuba. Laws such as this have been enacted to allow vital oversight of actions of such consequence. If this were an isolated instance, it could be dismissed. It is not.

After announcing that he intended to act unilaterally in the face of congressional opposition, Obama ordered the non-enforcement of various laws — including numerous changes to the Affordable Care Act — moved hundreds of millions of dollars away from the purposes for which Congress approved the spending and claimed sweeping authority to act without judicial or legislative controls.

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.

No one can predict with certainty what will follow the Obama administration. The only thing we know is that a new president will be elected in 2016 and congressional majorities will continue to shift. That uncertainty offers a window of opportunity for members of both parties, academics and others to come together to focus on three questions that may determine the viability of the separation of powers for decades to come.

First, we need to discuss the erosion of legislative authority within the evolving model of the federal government. There has been a dramatic shift of authority toward presidential powers and the emergence of what is essentially a fourth branch of government — a vast network of federal agencies with expanded legislative and judicial power. While the federal bureaucracy is a hallmark of the modern administrative state, it presents a fundamental change to a system of three coequal branches designed to check and balance each other. The growing authority invested in federal agencies comes from a diminished Congress, which seems to have a dramatically reduced ability to actively monitor, let alone influence, agency actions.

Second, much of the tit-for-tat politics that has alienated so many Americans is due to the fact that courts routinely refuse to review constitutional disputes because of an overly constricted view of the standing of lawmakers to sue and other procedural barriers. While there can be legitimate disagreement over how and when legislative standing should apply, current legal barriers rob the system of a key avenue for resolution of such conflicts. A modest expansion of standing would provide greater clarity to the line of constitutional separation without causing a flood of cases.

Finally, Congress should address the rising share of federal spending that is not under its control. Last year, only 35 percent of spending was appropriated and voted on. The remaining 65 percent grows automatically. As a result, our debt exceeds the size of our economy, and Congress is losing its critical “power of the purse.”

The Supreme Court found in National Labor Relations Board v. Noel Canning this week that the president violated the separation of powers in his use of his appointment powers. Also this week, House Speaker John A. Boehner (R-Ohio) announced a lawsuit challenging the Obama administration’s unilateral actions. A lawsuit by one of us — Sen. Johnson — is raising some of the same issues with regard to Obamacare and will be heard next month. However, such cases will take years to resolve, and Congress needs to speak with one voice as an institution at this critical time. The Canning decision should be a catalyst for all members to look at the comprehensive loss of legislative authority in our system.

The framers believed that members of each branch of government would transcend individual political ambitions to vigorously defend the power of their institutions. Presidents have persistently expanded their authority with considerable success. Congress has been largely passive or, worse, complicit in the draining of legislative authority. Judges have adopted doctrines of avoidance that have removed the courts from important conflicts between the branches. Now is the time for members of Congress and the judiciary to affirm their oaths to “support and defend the Constitution” and to work to re-establish our delicate constitutional balance.

It will not be easy, but the costs of inaction are far higher. We need to look beyond this administration — and ourselves — to act not like politicians but the statesmen that the framers hoped we could be.

220px-Ron_Johnson,_official_portrait,_112th_Congressturley_jonathanRon Johnson, a Republican, represents Wisconsin in the Senate. Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

Washington Post Sunday June 29, 2014


  1. My last two comments posted rendered this notice:

    “Your comment is awaiting moderation.”

    So now this blog is engaged in selectively curtailing free speech?

  2. randy, no need to hiss, in the manner of a cat that is taunted and cornered, showing teeth, hackles raised. Believing murder is what it is, hardly has anything to do with religion. Obviously, you must believe in homicide! So your belief is based on science, common sense and law — but mine isn’t? Smooth, really smooth. As for religion, you wouldn’t know it if it bit you in the ass. You also don’t know how to respond without cornering yourself, leaving yourself no option but to raise hackles, as though to scare others into forfeiting free speech.

    max, you believe I should open my door to unbridled, hedonistic pregnancy. You couldn’t come up with anything better, such as birth control? Why is it that I promote birth control to solve unwanted pregnancy, and you promote only abortion — or pro-lifers opening homes to unwanted children? You’re smoother than randy!

  3. samantha,
    The simple solution is to open your home up to unwanted children instead of forcing these unwanted children to become aborted… Personal responsibility.

    Offer to pay full expenses of the full term pregnancy. This means medical and living expenditures during the pregnancy and up and through a full health screening prior delivery/recovery. Then, adopt the child and raise it in a loving and wanted home.



    Sen. Johnson “Owes the Public the Proper Disclosure, Not Excuses”

    MADISON, WI — One Wisconsin Now has filed a complaint with the Federal Elections Commission (FEC) alleging U.S. Sen. Ron Johnson has improperly failed to disclose any incurred obligations and expenditures associated with his lawsuit against the Affordable Care Act, in violation of federal campaign finance reporting requirements. In early January 2014 Johnson announced he was filing a lawsuit to block implementation of the Affordable Care Act. He also publicly announced he intends to use campaign funds to pay legal bills and will use the suit to expand his fundraising list with an eye towards his 2016 election. Yet nearly six months later, Johnson has disclosed no spending associated with the lawsuit.

    “Federal campaign disclosure requirements are quite clear, actual or estimated expenditures must be reported once there is a written agreement to make a campaign expenditure,” said One Wisconsin Now Executive Director Scot Ross. “Sen. Johnson has crossed that threshold, admitting that he has a retainer agreement with counsel and will use campaign funds to pay bills.”

    According to news reports, Johnson has signed a retainer agreement with the Wisconsin Institute for Law and Liberty (WILL), and its lawyer Rick Esenberg, for legal services. WILL receives generous funding from the right-wing Bradley Foundation, headed by Wisconsin Gov. Scott Walker’s campaign co-chair Michael Grebe. Johnson’s lawyer said there is no set timetable for when they might bill for legal services.

    FEC campaign finance reporting guidelines indicate that, “a written agreement to make an expenditure, such as a media contract, constitutes an expenditure.” The guidelines further require that, even if the amount of the debt is unknown at the time a report must be filed, a committee must report an estimated amount and amend it when the actual amount is known.

    Sen. Johnson has indicated that he believes he is under no obligation to make any disclosure until he receives a bill for services. Ross noted that under Johnson’s interpretation he could hide information from the public, potentially for years, and undermine the very purpose of requiring campaign finance disclosure.

    He concluded, “Sen. Johnson is getting a sweetheart deal from a right-wing funded legal outfit to sue to take away people’s health care and eliminate protections from insurance company abuses, and he’s trying to fatten his campaign account while he’s at it. He at least owes the public the proper disclosure, not excuses.”

  5. randyjet – next segment

    5) I.F. Stone’s book was available in the US in 1952 and again when it was reprinted in 1970. I am not sure why you had to get a copy photocopied from Canada. BTW, I.F. Stone, who likely was a Soviet spy, was wrong on some of his analysis as new information has shown.
    6) Lenny Bruce was constantly arrested for obscenity, not because of rants against the Catholic Church. One of his arrests was for using the word schmuck (a Jewish or Yiddish term for penis). He was also arrested for running a scam as a Catholic priest though.
    7) During the period you have been talking about Latino could easily marry whites because they were considered (on the census) whites.
    8) Blacks had lots of rights, but it did depend on the state. This is true of other minorities as well.
    9) Redlining just means the banks will not write the mortgage, it does not mean you cannot buy property. I lived in a redlined area for 20 years and property passed hands all the time. People carried their own notes.
    10) I am sure the FBI did not go ballistic when they could not find you. If you were so dangerous they would have picked you up long before. Their concern might have been that you joined the underground segment of the CPUSA. However, you have to realize that your movement was kept alive by the dues of the FBI undercover guys who joined to keep an eye on you. Without them the movement would die.

  6. Randy, you are pretty much right on all accounts, except for one huge omission. A fetus had more freedom during the McCarthy era than today. Has it ever occurred to you that you might only be alive today because the fetus, then, had more rights than now? In this way, you are as comical as one who has ended up in a fiery automobile crash, only to emerge unscathed, yelling out, jumping and smiling, “I’m okay!”

    1. Samantha, The FACT is that while abortions were illegal back then, it does NOT mean that there were fewer or none at all. Growing up in CT and in high school, most boys knew of a doctor who would perform abortions for a price in NYC primarily. Just ask W Bush who had one performed for his one time girl friend in Houston back when abortions were illegal. Most people in America do NOT believe a person becomes a legal person at conception. The SCOTUS used simple legal and common sense when they ruled that there IS a constitutional right to privacy. Thus the state has NO place dictating ones religion or marital relations. Stay out of MY bedroom and my wife’s body. They are NOT yours or the states property. It is no coincidence that our country was a police state back in those days and outlawed abortions along with most of our liberties.

      1. randyjet – would you like to link a cite to the claim about W Bush?

      2. randy wrote: Stay out of MY bedroom and my wife’s body.

        This isn’t about your bedroom, it’s about the life of a living person. The world is swamped with over population, and the best you have to offer is abortion? What’s next? Euthanasia, something you would only regret after they target you?

        1. Samantha I should also have said KEEP YOUR RELIGION OUT OF MY BEDROOM AND MY WIFE’S BODY. THAT is the point since your opinion is a religious belief and in fact has no basis in science or common sense or even more important LAW! Just because YOU believe something does NOT make it true. Nor do you have the right to impose your religious beliefs on me.

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