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
I am glad I found your blog PhD Turley. I very much enjoy many of your topics and view points. This topic is obviously very dear to you. I agree it is politically important to the USA.
I take exception to your self description however. A “liberal academic”? I read your blog because I appreciate the reasoned conservative view. IMO you are far from what I view as liberal politically, or in about any aspect of your life that you have disclosed in this blog. If you feel you are liberal, you need to change your circle of relationships.
John:
“I wonder what the Founders meant when they told us in the Preamble that government was limited to security and infrastructure and that all endeavors, businesses and industries, including those of education, charity and healthcare, conducted in the free markets of the private sector without governmental interference, were secured to the citizens as their “blessings of liberty.”
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I’d keep wondering since apparently you read the preamble to the Republican Party platform and not the US Constitution. BTW read a little more than just the headings next time when you get a copy of the Constitution. You might learn about what government can and cannot do.
Relevant to a discussion of the three “branches” of government, is the topic of the Fourth Estate and just who is included. Are we on this blog included? Does being included in “freedom of the press” or “journalism” give a person, a corporation, an LLC, a higher status of free speech and free assembly rights. The last prong of the First Amendment, taken together with the other prongs, indeed gives those who blog, more First Amendment support than merely the “press”. We “assemble” to “exercise free speech” on “matters of public concern” in order to “petition our government for redress of grievances”. Let us have a topic on this soon. It is related. As dog is my witness.
Why isn’t the focus on the rights of citizens? There would be little concern for the balance of power within the government if the power of government were strictly and severely limited as was the intent of the Founders after they ended the tyrannical rule of a monarch.
I wonder what the Founders meant when they told us in the Preamble that government was limited to security and infrastructure and that all endeavors, businesses and industries, including those of education, charity and healthcare, conducted in the free markets of the private sector without governmental interference, were secured to the citizens as their “blessings of liberty.”
Why does every situation in life devolve to government.
Seems like the Founders were self-reliant, free people with free businesses and private property. Only Karl Marx intended for the government to assume all power.
Government that was intended to be limited to security and infrastructure has “evolved” into a monarchy again – a tyrannical and oppressive “dictatorship of the proletariat” which is the equivalent of the deposed monarchy.
The balance of power within government should be a minor, insignificant sidebar to citizens who are actively and dynamically conducting business without the shackles of unconstitutional governmental intervention.
>Paul C. Schulte
“when the money runs out it runs out.”
You mean, if Congress decides to shut the government down by defunding things, the Executive Branch has no alternative? Or are you talking about the more general question of federal finance? If you mean the latter, the money never has to run out, as the federal government creates the money supply.
Jay S – there is a point when the government actually runs out of money, even though they can print it in the basement, they are limited as to how much they can print. So, you can defund, underfund, delay projects or you can wait until the debt ceiling has to be raised again because we are spending too much money. When the ceiling is hit, no money is forthcoming (actually some essential services like closing off access to public areas)
“People need to focus on the structure of the problem or the violation of the law specifically an not get caught up in the personalities or who they are aligned with or the fact that someone has allegedly done worse.” Darrren Disagree, one must always look at an elected officials voting record and contributors in order to decide what the underlying agenda is because, believe it or not, many politicians have one. Johnson is no white knight …quite the opposite.
Great comment Darren.
This type of approach, having those from differing political leanings voicing via their distinctive perspectives toward a common idea is a good method. Hopefully it will help minimize the reachionary behavior of those holding polarizing opinions resulting from just one speaker or several having an opinion opposite that of the reader.
People need to focus on the structure of the problem or the violation of the law specifically an not get caught up in the personalities or who they are aligned with or the fact that someone has allegedly done worse.
Resorting to anecdotes as examples, if a LEO caught someone spray painting grafitti on the side of a business they would arrest them regardless of which street gang they belonged to. It doesn’t matter which gang the grafitti identified, they were all equally guilty in my book. In another, LEOs didn’t fail to arrest someone for DUI because another person committed a vehicular assault the same car four years previous. Iikewise we shouldn’t give President Obama deference because President Bush was worse; an approach we otherwise see advocated quite often.
Darren, The problem I have is that the Tea Party types and all the GOP Congresscritters had NO problem with Bush and Cheney violating not only US law, the Constitution, and international treaties on torture. That is why the personalities ARE important. It is sheer hypocrisy to pretend that they have clean hands in this court of public opinion. At least Prof Turley did object to Bush at the time, but I have to comment that joining with Sen Johnson is like joining with the KKK and denouncing Obama on an issue. If he had found a more respectable person who has not the extremist views of Johnson, I would be a lot more sympathetic. So it is only partisan hacks for the most part who will take up the cudgels, not principled folks. That is why I thought the SCOTUS ruling on the recess appointments was a good one. I supported that position against Obama. THAT is why I don’t regards myself as only partisan. It is not similar to the others who hate anything Obama does and have to lie or stretch facts to suit their ideology.
Randy, I understand where you are coming from. In my approach any political party or politician that breaks the law should be held as accountable as would an individual citizen who often gets the full force of the law and the politician skates.
I have long advocated offices of Attorney General, either federal or state, should not be directly tied to the legislature or the executive. It is not in our state. But unfortunately it is a partisan position. Judges here run on non-partisan ballots. Prosecutors and the attorneys general should also in my view.
Annie wrote “Sen. Ron Johnson calls Violence Against Women bill unconstitutional”
I won’t comment on every line in the bill, but one part of the bill is inane and another is appropriate.
First, the inane. Men wearing dresses are not women, i.e. transvestites or “transgenders,” and therefore cannot be placed under the auspices of the Violence Against Women bill. Men are not women, by definition. Just say “No!” to ridiculous political correctness.
Second, the appropriate. The bill allows tribal courts to prosecute non-Native Americans who rape Native American women on reservations. If you don’t want to be tried for rape in that jurisdiction, then don’t rape those women. Republicans claim that the provision is unconstitutional, but they are clueless. We have an Indian Affairs Committee which fairly well screams that we have considered Native American affairs to be different since 1820.
Karen S wrote “Blackwater turning mercenary and abusive … I don’t want any wrongdoing swept under the rug”
The Blackwater mercenaries who drew down on U.S. troops should have been prosecuted for treason and a few other charges, given that they were Americans for the most part. Same with Daniel Carroll, but for lesser charges. Bush never prosecuted them because they were his boys. Obama failed in that he could have prosecuted them immediately after inauguration. This is just another nail in the coffin regarding the Republican’s oft-stated policy that they support the military. Just like all politicians, the only thing they support is a fatter, personal wallet. As far as I know, no one is being prosecuted for either of the above offenses (as per the Fox News article you referenced). I’d pay to see Erik Prince perp-walked.
Reblogged this on SiriusCoffee and commented:
H/T: Dredd
“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:
Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other [enemy of public liberty]. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied: and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals, engendered by both. No nation could preserve its freedom in the midst of continual warfare. Those truths are well established.
(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
Jay S,
The executive branch has plenty to do about it. They have the bully pulpit, Public opinion can be a very powerful force. If the executive chose to persuade people, they could quite possibly make things change.
http://www.jsonline.com/blogs/news/191035431.html?ipad=y
Sen. Ron Johnson calls Violence Against Women bill unconstitutional.
So, if the Legislative branch decides to effectively shut down the federal government by doing nothing, the Executive branch has no choice but to go along?
Jay S – when the money runs out it runs out.
http://www.huffingtonpost.com/2010/09/29/ron-johnson-wi-senate-can_n_743910.html
Ron Johnson and the Wisconsin Child Victims Act.
Annie – why don’t you cite the bill itself instead of finding opinion pieces to attack Johnson on the issue.
Annie, I have never not been willing to say Cheney and Bush committed war crimes. I stood up in a room full of people and asked why Bush was not on trial for torture. It was a scary experience. It was a room full of people who were clapping and barking like seals when Koh, the state dept. council said that Obama had the right to kill anyone, anywhere. I was honestly worried about getting tased for speaking up!
Paul, huh? Jill doesn’t support torture that I know of. My complaint about her is that she tends to only mentions Obama and torture, yet fails to mention Bush Cheney and torture until she is pushed. Maybe you should have another cup of coffee?
W’s long gone. No sense in beating a dead horse. Or idiot, as it were. Obama is President now, and at the core of the debate. Second term even. If we start being retroactive on every argument, we’ll have a couple of hundred years to rehash. I beat on W plenty, probably worst ever. But that does not allow me to give Obama a pass on critical analysis.
I am not familiar with the victim’s bill. When I GOOGLE the name, I get a lot of bills. Can anyone tell me the # so I can research the pros and cons?
What I have found is that if you put a tagline like “victim’s bill” in a name or description, it becomes a case of “if you don’t vote for this you’re against victims.”
But we’re not supposed to vote for a bill because they have a moving title or description. We’re supposed to look at the pros and cons and vote accordingly. To illustrate, if a “victim’s bill” would have the effect of also killing kittens and puppies, then we should not vote for it. (Sorry for the dramatic effect, but trying to make this crystal to everyone.)
I am very curious about this bill, and what the criticism to it would be. I’d like to learn more and then decide for myself.
Paul,
You are making a claim that I support torture. Would you substantiate that claim with evidence?
Why is the restoration of the rule of law so upsetting to people?
Jill – my comment was to Annie, not to you. You will notice I used weasel words.