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
SMM,
What is O.K. Supporting Obama, a man who commits torture and murder and endless war? Is that what you mean?
JT, WP shows a comment has been made by SMM, but it doesn’t show up in the actual comment thread. This keeps happening. Something is wrong with this.
Jill, It is Okay. Support whomever.
SMM,
You seem unable to answer a question honestly. If it’s O.K. for you to support and ally with a man who commits torture, murder and endless war, why isn’t any other alliance O.K.? What is the moral principle underlying your argument then?
You should be able to work with anyone who wants to restore the rule of law. That doesn’t mean you have to agree with that person or support any of their other positions. It doesn’t mean you shouldn’t criticize them. It means that the way out is for every person in this nation to help restore the rule of law.
Jim, I’m not here to argue women’s reproductive rights with you or anyone else. Again, that is missing the point. I’m guessing you do not support women’s reproductive rights. I am willing to band together with you to restore the rule of law. Are you, even though we disagree about women’s reproductive rights, willing to band together with me to support the rule of law?
Exactly SWM. It’s more important to bring down Obama for some then honor their professed principles. I won’t allign myself with such as the Koch bought politicians to bring “balance” to the branches. The Kochs and their representatives do not want balance.
Jill, I don’t think I am working with Ron Johnson if he is the current venue for getting at Obama. Might just as well work with the Koch Bros.
Jill, I might be wrong but I don’t think there is anything in the constitution about women’s reproductive rights. I women want to have sex, contraception, abortions go ahead, but do it on your own dime. this holds true for men. I shouldn’t have to pay for your social activities.
That sounds reasonable to me. Rule of law is pretty good. Once we decide to be honest about that, maybe things can change for the better.
SMM,
Of course it bothers me. Now, doesn’t it bother you that Obama commits torture and murder? I answered straightforwardly, would you be able to answer honestly as well?
I am asking you, as my fellow citizen, one I tend not to agree with, one who supports a man who commits torture and murder and endless warfare, to work on restoring the rule of law. We need to work together, you and me, on this basic need.
Jill, You and Turley can coalesce with the Tea Party heroes and that is your right. but it is also my right to provide information about where Johnson stands on the issues. At least the Paul’s were not war hawks so I could actually understand that association.
I don’t think tit-for-tat does anything for this argument. This can be done all day, and the rest of the week. Our country seems to have no plan anymore, kind of like, “Let’s make a movie!” You can see it is every aspect. Including foreign policy where we arm one group here, and fight them over here. It’s so bad, there can’t be an discussion of details. I guess kind of like a ruling of insanity in a courtroom (but I’m way out on a limb there). We need some sort of form going forward. Heck, maybe we better start over with the Magna Carta, although, it doesn’t seem like our government would honor that either now.
Jill, It is not wrong for Johnson to be a partisan but maybe it is wrong to be owned by the Koch. Does it not bother you that Johnson has voted for every anti-environment and pro-war bill and lied about Sen. Feingold’s record by making him not to appear strong enough on defense?
SWM – do you have any idea how much money it takes to run a Congressional campaign? $27k from the Koch bros is chump change.
SMM,
I already addressed this. As you have said, you are yourself a partisan. So why is your partisanship O.K. but Johnson being a partisan wrong? You really need to show why this makes sense. His is a party you disagree with and yours is a party he disagrees with. Is you agreeing with your own positions what makes his partisanship wrong and yours acceptable?
As I also pointed out you are in support of and allied with a president who commits torture and murder. Why is this alliance and support acceptable?
I would suggest that for now, we quit focusing on who is allied with the worst criminal or worse possible industries and focus on what it means to have a govt. which no longer abides by the rule of law.
The rule of law will enable you and me and JT and others to speak freely and argue actual positions. The rule of fiat silences dissent. Rule of fiat prevents everyone from hammering out rights. The rule of law is what enables justice. It’s time to stop focusing exclusively on party and start focusing on what makes a nation a good nation.
You’re known by the company you keep.
“Five members of the US Senate were 100% reliable votes for the Koch Brothers right wing agenda in 2011, Think Progress reports. Guess who made the list?
“Our” Senator, Ron Johnson, aka RoJo the Clown.
But it wasn’t a one-way street, Think Progress notes. The Senators who gave the Kochs their votes also got $187,400 in campaign contributions from Koch forces. Johnson sold oout more cheaply than the rest, getting $27,000, but he’s new and will no doubt up the ante next time.
Think Progress:
[Americans for Prosperity] judged Congress on their votes to protect the Koch brothers’ right-wing petrochemical empire on such issues as the repeal of President Obama’s new health care law, preempting EPA’s authority to regulate greenhouse gases, Chairman Paul Ryan’s budget to end Medicare, ending ethanol subsidies, several Congressional Review Act resolutions of disapproval to overturn new regulations and the fiscal year 2012 appropriations bills.
In the House, Wisconsin Rep. Reid Ribble also scored 100% to make the Wall of Shame.” Progressive Wisconsin
Jill pretty much sums it up for me. Don’t forget the story of the press guy who our prez helped keep in a gulag for pointing out military “missteps.” Nice Madisonian reminder from Dredd. Wars seem to come back and eventually cause the mechanisms for a country’s final collapse.
“In comments, we do not see the desperate problem facing us addressed by partisans.” Jill I actually think seeing Ron Johnson’s picture reminded many of partisanship. He has made quite a reputation for himself as a republican tea party obstructionist. In addition, his ratings by various peace and environmental groups groups are “0”. He is a shill for the plastics industry.
SWM – I would find his rating by enviromental issues a great plus.
In comments, we do not see the desperate problem facing us addressed by partisans. That is a shame. After all, the Democratic partisans here are allied with a president who killed a 16 year old boy, on purpose, and bragged about it. This same president said he was getting really good at killing people, something he regularly does around the world. So, it is strange for people who are in alliance and support of a man who commits torture and murder to worry about what anyone is doing when allied with other people. I wouldn’t exactly say that alliance with someone who tortures and murders gives credibility to the argument. Therefore, for a moment, let’s set aside alliance bashing and get to the heart of the matter.
The USG is failing. No matter who is allied with whom, this should matter to every citizen. It is through the mechanism of a functioning govt. that citizens have any hope of redressing grievances. For example, let’s take the issue of women’s reproductive rights. The way to restore these rights is not through presidential fiat. We now have a president is tepidly in support of those rights. Perhaps we get a president who is wholly in support (such as Jill Stein) or one who is against them entirely such as Mitt Romney. If citizens uncritically support rule of presidential fiat, “rights” will come and go with whoever is the king or queen of the moment. This concept eviscerates the whole concept of rights. This would be the same regarding LBGT, civil rights, right to a clean environment or limits on corporate “rights”.
It is incumbent on all citizens to work together to restore the rule of law. This is in part accomplished by working with others, even when we disagree with them on important matters. Those matters are fought out in the context of a functioning government, something necessary for our society to flourish.
“In other words, a society does not ever die ‘from natural causes’, but always dies from suicide or murder — and nearly always from the former, as this chapter has shown.” – A Study of History, by Arnold J. Toynbee
Suicide is a psychological matter (Agnotology: The Surge – 9).
We need to restore the biblical religious conviction that all men are fallen, are sinners.
Our founding fathers had a clear biblical understanding of the nature of man. They not only understood that man was great—having been created in the image of God, they also knew that man was bad—having a fallen nature. Having this in mind, they designed our Constitution accordingly. Clearly understanding the reality of sin, our founders made it difficult to govern—that is, they made it difficult for tyranny to succeed; they adopted the separation of powers doctrine with its numerous checks and balances. It is not surprising, therefore, that when modern men who do not understand the thinking behind our Constitution gets thwarted in their dreams, they will wrongly conclude our government is dysfunctional.
We still have a electoral check on the legislative branch–re-elect the entire House every two years.. For example, when Congress over-reached and passed an unpopular healthcare bill, the control over the House of Representatives switched parties less than one year later. In this instance, our Constitution worked flawlessly!