Below 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.
Ron 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
Go for it!
Long overdue lawsuit.
Can you get over that pernicious “standing” issue?
“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.” – JT
It is no longer a Madisonian system in the sense that Madison intended it:
(James Madison).
And to bring it current at 4 July maximum:
“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.” – James Madison
Hey, Annie!
Glibertarian was genius. For anarchist, how about klanarchist? Though I admit that “klan” better resembles the Tea Party.
The Tea Party is tough because few words end with “tea.” It would be stretching the rules a bit, but how about Yeti Party? They may not be snowmen, but they are often abominable. Should we call it yeTi to make the connection more obvious? Or maybe yeTea?
“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.” – JT
Definitely a noble venture.
I agree with Randyjet above.
Turley’s teaming up with ideologue Ron Johnson supports two growing notions of mine. Turley lives to go after presidents. Turley loves attention. Johnson epitomizes Congressional paralysis. Johnson has gladly played the GOP long term game of gumming up the works, in many cases forcing the President to go around them, and then be attacked for doing so. The shark has been jumped. I’m outta here.
swarthmoremom said,
“Russ Feingold has hinted that he might run against Johnson in 2016. I sure hope so.”
I hope so, too. Good news this Monday morning. Thanks, swarthmoremom.
SWM, I hope Feingold does run against Johnson, that would be amazing.
It is funny that Prof Turley decries the legal limbo of the detainees and criticizes Obama for not closing Guantanamo, but defends Congress when it violates the powers of the President as CiC to control the status of POWs. He also diverges from his concerns about the separation of powers to go off on a tangent about the deficit spending. I guess Prof Turley will now join the rather nutty Sen in seeking to gut Social Security and other programs which have been established by previous Congresses to be self funding. So in the interest of having Congress keep all of its powers of the purse, primarily the GOP House, we will now see a challenge to the Constitutionality of Social Security, Medicare, Medicaid, etc..
I am also bothered by the fact that this whole column avoids or seeks to negate common sense. So if a detainee has a medical emergency which cannot be handled at Guantanamo is moved to the US for treatment, Obama would be in technical violation and should be denounced. Likewise, as has happened in other cases, Congress passed a bill which has some serious defects or unintended consequence, the bad portions of the bill must be enforced no matter what, and let the damage continue while one party in Congress intentionally seeks to sabotage the programs. The real problem is not that the President has expanded his powers at the expense of Congress, but that some elements of Congress have sought to make the Federal government non-functional. In short, this problem is one of outright subversion of our government by part of one party, and that is what has made this problem. In the past, both parties had the concern for the welfare of the US uppermost in their minds. One cannot say the same at this point in time with the GOP nut cases.
Russ Feingold has hinted that he might run against Johnson in 2016. I sure hope so.
http://www.jsonline.com/news/statepolitics/polls-trends-point-to-tough-reelection-fight-for-sen-ron-johnson-er995tc-199787731.html “But there a few things we can reasonably expect.
One is that Johnson is almost certain to be one of the most targeted Senate incumbents nationally, and his race will attract massive resources and attention from both sides.
Two, the pool of voters that determines his re-election bid will look different from the pool of voters that first sent him to Washington. That’s not just because of six years of population change and not just because of the difference between a midterm and presidential electorate. It’s also because 2010 was such an unusual political year, the best election for Wisconsin Republicans since 1938, and the most conservative electorate in this state since 1994, according to exit polls.
Three, unless the GOP can break its post-1984 presidential losing streak in Wisconsin, Johnson will have to outperform his party’s nominee in 2016.
Johnson is the only major Wisconsin Republican who gained office in the 2010 wave who hasn’t already faced the voters again. Gov. Walker and GOP House members Sean Duffy and Reid Ribble have weathered subsequent elections.
Johnson will get his opportunity to do so in about three and a half years.
In all likelihood, he’ll have to win under much less favorable conditions than he enjoyed the first time around.”
Ron Johnson is a climate change denier, against women’s rights and against gay marriage. I stand by my prediction. Democrats win in Wisconsin in presidential years.
SWM – Franken is too far right wing for WI. However, but the time the dust settles, you might want to pull back on that prediction.
http://www.jsonline.com/news/opinion/sen-ron-johnsons-shameful-votes-b99294409z1-263708471.html “For those still wondering, Johnson’s recent votes opposing bipartisan legislation to help provide military veterans with health care and turning his back on common-sense relief for over 800,000 Wisconsin student loan borrowers went a long way in revealing his true self and his priorities.”
Annie, Johnson is too far right wing for Wisconsin. He ran with Scott Walker as a Tea Partyer. Next time he runs it will be 2016, a presidential year, and I predict he loses.
Senator Ron Johnson is no Senator Feingold. Senator Feingold is sorely missed.
Good to see that there is someone fighting to help tame the lawless
Thank you Professor Turley, and Senator Johnson for this inspirational message. I only hope those who require hearing its message most take the opportunity to seek it out and take it to heart.
The individual missing in greatest numbers from all our branches of government is the Statesman(woman): the one whose allegiance to serving our nation and our Constitution outweighs their dedication to seek the spotlight.
http://www.jsonline.com/news/statepolitics/sen-ron-johnson-files-lawsuit-over-obamacare-b99178067z1-238881801.html?ipad=y
Senator Ron Johnson’s Obamacare lawsuit widens GOP rift.
Republican Senator Jim Sensenbrenner calls this litigation an “unfortunate political stunt” and said that it “focuses on trivial issues”.
I am just curious. How many judicial appointments are sitting on hold in Congress waiting for a vote? How many executive department appointments which require Congressional approval are sitting on hold? Can you please publish the Congressional Calendar which shows when they are all there in the House and in the Senate? How many Acts of both House and Senate were enacted in 2013? How old is Diane Feinstein? Which members of House and Senate are supported by the Koch Brothers? All coke and no play makes Boehner a dull boy.