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
The Executive Branch can only grow as large as the Legislative Branch refuses to check the Executive’s power…
… This is why I’ve been asking my House Rep to begin impeachment of the Office of the President of the USA. Through the lack of will by the Legislative, they have allowed and beholden to the Executive Branch powers only Tyrants long for.
p.s.
Why do we keep voting for the same Legislative Branch that keeps screwing the voters over?
Ohm–Annie, have you checked the archives here? If you did, you would know that I have very consistently called for the prosecution of Bush and Cheney for war crimes. I believe you already know this and do wonder why you keep making false claims about me. I am asking you to stop doing that.
In part, to restore the rule of law would involve the prosecution of Cheney, Bush, and Obama and Biden for war crimes. I don’t understand why citizens are not for a return to the rule of law. It is the basis of a functioning society.
Saucy, you are correct that US contractors drew their weapons on US soldiers. They also starved them and electrocuted them. That was under Bush/Cheney and they should have been prosecuted under Bush/Cheney and now under Obama.
Jill:
“We need to know the truth, that should be our focus, not who loves or hates a president.”
So true. Many see facts through political lenses.
Saucy:
I vaguely remember a scandal about Blackwater turning mercenary and abusive. It’s my understanding that a Blackwater falsified staffing data that was used to overcharge the government, and they were given very lax oversight. Their employees are currently on trial for murder.
http://www.foxnews.com/politics/2014/06/30/state-department-reportedly-was-warned-blackwater-conduct-prior-to-2007-iraq/
I see an action and a consequence – a murder trial. If lax oversight allowed them to run amuck in the time leading up to the murders, then that needs to be addressed. I don’t want any wrongdoing swept under the rug.
Now take Obama and Clinton. Clinton’s negligence denied requested military security for the embassy at Benghazi. And then her negligence denied them aid during an attack that lasted hours, with boots on the ground nearby that were told to stand down and not assist. And then her well documented history of dishonesty reared its ugly head again, and she and President Obama declared it was a spontaneous demonstration of a video gone wrong. Like people bring rocket launchers to a demonstration. All references to policy failures or terrorism were removed from the talking points, as evidenced by emails obtained via FOIA.
So I do not see a consequence yet for their actions. In fact, Hillary appears to be running for President on that record.
Saucy, Jill doesn’t include Bush Cheney in her complaints about torturers unless her feet are held to the fire. I find that disturbing, considering she claims to be a “Green”.
Annie – since people can compartmentalize, there is no reason that Jill cannot be a Green and support torture.
Paul wrote “The Fuller Brush Men had a great reputation”
Yes, but for what? 😉
saucy – for being very professional sellers of Fuller Brushes.
Jill wrote “Obama having troops in Iraq under the State Dept, working as contractors is simply true”
And simply irrelevant, given that Bush and Cheney had many more contractors in Iraq. What part of “[Blackwater mercenaries hired by Bush and Cheney] actually drew their weapons on U.S. soldiers” didn’t you understand?
If you were calling for the prosecution of Bush, Cheney, and Obama for high crimes, then I’d agree with you. But only calling for the head of Obama makes you highly biased.
On this issue all the Presidents have legal cover. Although there are some countries that Cheney cannot travel to without being subject to arrest. That might happen with Obama as well.
A couple observations. Firstly, this has been a female dominated thread. I have long said we needed more diversity, more females being one of the more desperate needs. This was a liberal, white, male dominated blog when I got here in 2012. We also have more of an ideological diversity, evidenced by this and virtually all threads of late. I remarked on the thread the other day a large group of Middle Easterners thanking JT for his fine work. I hope they stay, because racially and culturally we are still pretty lily white.
When I voted for Obama in 2008 I had this doubt in my gut. That was that he would be a demagogue. By 2012 I saw that fear was not unfounded. Kudos to JT on his continuing courageous stand for the Constitution. He will not be invited to many Christmas parties this year.
My respect for Feingold is established. His integrity is above reproach. Feingold has stood up against his own party and own political interests for doing what is right. If he were still my Senator, I could see him co-authoring this piece. I really hope I get to vote for him again. I don’t usually vote in primaries. But, I would love to vote for him in a run against the vapid, Tammy Baldwin. But, if he ran against Johnson, he would also get my vote. I trust him to always do the right thing.
I have stayed out of this since I think that Jill has about as much concern for the “rule of law” as the Tea Partiers do, which is nil. They are only party hacks who scream about the dictator Obama at every opportunity. I would be more impressed if the fire were directed at REAL murderers and if Prof Turley would represent the family members of those murder victims against the US government which ordered or sanctioned their murders.
The claim that Obama has not pulled out US troops and most US personnel from Iraq is so bogus as to defy rational explanation. If he has not why are all the GOPers blasting him for doing just that? The number of contractors left in Iraq at most run to 5000 doing personal security work for the US State Dept. and other agencies. To say that they are the same as US troops or forces for imposing US will is absurd. Then these people forget that Obama, unlike Bush, has declared that torture is illegal and will not be tolerated and has ceased. That he has not prosecuted those who did those acts, is a political judgment that he is entitled to use, especially since there are lots of legal questions as to the ability to prosecute. Ending such torture is a good thing, but obviously it is not enough for rote Obama haters. So if it is not enough, then there are lots of targets from previous US government secret murders to go after. How about that folks? You don’t need the administration to do this. You can do it on your own NOW! At least you will be on the moral high ground for all sides since these victims were not armed nor directing or helping actual groups that were responsible for the deaths or over 3000 people in the USA.
To say that killing US citizens who are in actual armed combat operations against the US is murder is surreal and beyond rational debate. That is why there is no massive outcry about these killings. Most people have enough wit to understand the difference between blowing up journalists and killing those who are in groups who are attacking the US. Too bad that Obama haters are so blinded by partisan hatred that they cannot see it. Let’s see if Sen Johnson will join Turley in denouncing the killing of the US Al Qeada supporters in Yemen. Think that he will use those killings as part of his complaint? That is called being unprincipled if you join with somebody who has fundamental disagreements with your positions, and agree only on one thing for partisan advantage. That is also a cult like hatred for Obama which is worse than anything that his supporters have shown. I disagree with Obama on lots of issues, but I will not join in this absurd factional attack.
SMM,
I am not “picking” on you and Annie. I am asking you legitimate questions just as you have asked me questions. The difference is that I answer the questions that you ask while you cannot answer mine.
These are profound issues. Everyone should be grappling with them, including self identified Democratic liberals.
SaucyMugwump,
Why worry about who hates or who loves Obama? We need to know the truth, that should be our focus, not who loves or hates a president. What I wrote about Obama having troops in Iraq under the State Dept, working as contractors is simply true. One does not either have to hate or love Obama for that to be the truth.
http://www.jsonline.com/watchdog/noquarter/95740094.html?ipad=y
Ron Johnson’s record includes opposition to victim’s bill. What a guy.
Annie – it appears that the Democrats were opposed to that Victims Bill as well.
Jill wrote “He’s had troops there, just hidden under the State Dept. as contractors”
I am so tired of the Obama haters and Obama lovers.
Bush the Younger was on watch when Blackwater ran amok in Iraq. Blackwater guards “saw themselves as above the law,” State Department investigator, Jean Richter, wrote. According to a State Department memo, Daniel Carroll, Blackwater’s project manager in Iraq, told Richter after an argument “that he could kill me at that very moment and no one could or would do anything about it as we were in Iraq.”
The Telegraph: “Blackwater ‘threatened to kill US State Department investigator’ in Iraq”
From Newsweek’s Oct. 15, 2007 issue:
“The colonel was furious. ‘Can you believe it? They actually drew their weapons on U.S. soldiers.’ He was describing a 2006 car accident, in which an SUV full of Blackwater operatives had crashed into a U.S. Army Humvee on a street in Baghdad’s Green Zone. The colonel, who was involved in a follow-up investigation and spoke on the condition he not be named, said the Blackwater guards disarmed the U.S. Army soldiers and made them lie on the ground at gunpoint until they could disentangle the SUV. His account was confirmed by the head of another private security company. Asked to address this and other allegations in this story, Blackwater spokesperson Anne Tyrrell said, ‘This type of gossip has led to many soap operas in the press’.”
Both Obama and Bush are corrupt, incompetent, empty suits.
SWM:
Are you aware of the latest in a long line of scandals to rock the Anthropomorphic Climate Change set?
http://www.telegraph.co.uk/earth/environment/10916086/The-scandal-of-fiddled-global-warming-data.html
“in recent years, NOAA’s US Historical Climatology Network (USHCN) has been “adjusting” its record by replacing real temperatures with data “fabricated” by computer models. The effect of this has been to downgrade earlier temperatures and to exaggerate those from recent decades, to give the impression that the Earth has been warming up much more than is justified by the actual data.”
You are to recall that 0% of their computer models have accurately predicted climate. 0%. Not even one model has been accurate, and yet they’ve based policy on computer models that are supposed to homogenize the data and take into account heat island effects, etc.
It’s been claimed in the past that we don’t need these faulty models to prove that Climate Change is true. But this latest discover pulls the rug out from that argument, if all the data is actually based on a computer model.
In fact, the actual data shows that the globe has been cooling since the 30’s. I recall my own professors predicting that the polar cap would melt, changing oceanic currents, which would remove warming, moist air, and triggering global cooling.
I don’t know what is going on in Academia, because this would never fly in industry. They’ve had so many scandals they’ve flown way past the line of having to start over. No conclusion may be reached on this shaky ground.
Look, the climate has always changed since the time that Earth first gathered a gaseous envelope. We obviously want to maintain a gas profile optimal for mammalian life, including reducing toxic pollutants and maintaining optimal oxygen levels.
But if the climate is not changing today, it will tomorrow, because it always has. And no single species on Earth will be able to artificially free (pardon the pun) the climate at today’s values. And why should we? Why is today’s climate better than that 100,000 years ago? 1 million? Earth teemed with life at warmer temperatures. Look at the shoreline and see ancient waterlines higher up. The levels of the seas has always changed.
And if mankind continues in the vain hope that it can somehow stop the globe from changing rather than adapt, it is deluding itself and wasting its time. We survived this long from our adaptability, and we’d better not lose that skill now.
Meanwhile, we pump in billions of dollars to the cache of Climate Change, and almost ignore the clear and present danger of mercury contamination in our oceans, air pollution, etc. We’ve cared more about CO2 and cow farts than the fact that many fish species are now too toxic for pregnant women and children to consume.
Karen – the scandals in academia are so bad that some scientific journals will no longer report plagiarism by journal authors. Science magazine used to cover it but it is so rife that they gave up and said take it up with the author’s school of employment.
Jill, Why pick on us when you can find some much easier pickings? You always single out the conspicuous liberal democrats.
SWM – why should you and Annie be special. Jill can debate with whomever she wants.
JT, Something is wrong w/WP. My comment shows up in the actual thread but not on the list of commenters.
It makes things hard to respond to when comments don’t show up the way they should.
Annie, Would you help me understand you? You claim it is wrong to be focused on restoring the rule of law. Part of the reason you think that this focus is terrible is because it causes a person to work with others who hold offensive positions and do bad things.
Since you support and ally with Obama, a man who commits torture and murder, what is your underlying objection to an alliance with any person? If murder and torture pass your test, what is the problem with supporting anyone?
As to ruses, I don’t trust Johnson and I’m not asking you to trust him either. I’m saying as a fellow citizen, what is the problem with joining with other citizens in trying to restore the rule of law? I’m not speaking about the lawsuit. I’m speaking about a citizen’s movement to restore the rule of law.
SWM – these little surveys that groups do are not always on target. If you are against EPA overreach you would be counted an enemy of the EPA (loser of emails) by the environmentalists.
Help Help Help the Vortex of Doom has eaten my comment.
SWM – I would find his rating by enviromental issues a great plus. paul Oh,so you are for breathing dirty polluted air.
Thank you so much, Professor Turley, for shining some light on the Rise of the Imperial Presidency.
Unless we take the trouble to check him, we are passively sitting on our hands while the groundwork is being laid for all future presidents to become dictators and tyrants.
It is very difficult to get power back once it’s been given away.
President Obama will go down in history for breaking the law the most times as a President, and getting away with it.
Jill, why would you think that restoring the balance is what is going to happen with this lawsuit of Johnson’s? What part of RUSE did you not understand? Jill you are so focused on one issue, you’ve forsaken all others that you claim are important to you. I would caution folks that if you let the nose of the camel into the tent, before you know it his whole body will be in the tent. Or how about this, envision Ron Johnson as the smarmy Fuller Brush man, he gets his foot in the door, then he has his way with you.
Annie – The Fuller Brush Men had a great reputation.