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
Bob, Esq:
“Are you equating “the war on terror” with the civil war?
Why not the revolutionary war too?”
*****************
Ok, I’ll play. Let’s include the Revolutionary War, too. Should Washington have accorded due process hearings (even though there was no Constitution) to colonists fighting alongside the British as they charged him with fixed bayonet?
Still need that answer there slippery Bob.
And Prof Jacobson from his blog on the good month the Constitution is having.
http://legalinsurrection.com/2014/06/the-really-old-constitution-had-a-pretty-good-month/
Another lefty Constitutional lawyer going after the administration and MSNBC.
http://hotair.com/archives/2014/06/30/video-lefty-law-prof-tired-of-msnbc-mindlessly-bashing-the-roberts-court-as-pro-corporation/
Reblogged this on NEBIOLINI BANKRUPTCY BLAWG and commented:
A restoration of the balance of power between the three branches of government is desperately needed.
John wrote “All men are created equal NOT THE OUTCOME OF THEIR LIVES.”
What I really love about you is your steadfast devotion to your talking points. Here’s a clue: the Founding Fathers wrote beautiful words regarding “all men” conveniently forgetting that “all men” includes slaves.
saucy – the Founding Fathers did not forget that all men included slaves since slaves were not considered men, also women.
swarthmoremom wrote “Boehner said rhe repubs will do nothing this year, and there are a lot of children in dire straights at the border”
Methinks I was understood. Yes, the children at the border are an emergency, but permanent legislation is not required for that, merely Christian kindness and common sense.
My crack about his constant emergencies was directed at his creation of yet more special rights for LGBTs. It’s obvious that I do not agree with it, but any logical person would agree that it was not an emergency. His use of words is very political.
Those children at the border would be less of a problem if we just bused them back across.
Justice, Tranquility, Defence, General Welfare* – securing the “blessings of liberty” to the citizens.
Government – Security and Infrastructure
Citizens – Endeavors, Businesses, Industries
* Promote only — Excluding Individual Welfare
All men are created equal NOT THE OUTCOME OF THEIR LIVES.
That’s up to you.
swarthmoremom
Jill, It is Okay for you to make whatever alliance you want.
…
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Don’t support the boob alliance.
Sometimes I wonder if “the twigs” would better describe government reality … better … than say “the branches” … USeh?
I don’t know, Saucy. Boehner said rhe repubs will do nothing this year, and there are a lot of children in dire straights at the border. I am sure tea party nation will get themselves tied in knots over the rule of law. http://www.teapartynation.com/forum/topics/the-death-of-the-rule-of-law
The great Obama announced today that he will bypass Congress on immigration, saying, “I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing.”
And, of course, this is a load of manure. He just signed an executive order banning federal contractors from discriminating against employees based on sexual orientation, but it is positively laughable to claim that it was a “serious problem” or a “serious issue.” It’s the agenda, stupid.
http://www.reuters.com/article/2014/06/30/us-usa-immigration-idUSKBN0F52GY20140630
P.S. I’m not an Obama-hater; I’m a misanthrope.
Monsieur Villefort,
Are you equating “the war on terror” with the civil war?
Why not the revolutionary war too?
Karen S. wrote “Can anyone tell me the # so I can research the pros and cons?”
The definitive source is thomas DOT gov, which appears to be in the process of being replaced by congress DOT gov. Go there and type the name of the bill in the search box and leave the type at “Current Legislation.” You’ll notice more than one bill and that’s because every session starts again. The best rule is, take the most recent link. And Thomas works best with accurate keywords.
Jill: ” 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.”
Amen.
Hey Bob are you going to answer my Gettysburg question on the Miranda thread or not? Due process hearings for obvious fellow citizen combatants or not?
randyjet,
Do you possess the mental capacity to analyze an issue in the abstract?
Or must you always attack the man in lieu of discussing the message?
I wrote: “What do you they meant by ‘all men are created equal’ in the Declaration of Independence?”
I meant: “What do you think they meant by ‘all men are created equal’ in the Declaration of Independence?”
Jill,
Don’t ever try to teach a pig how to sing.
One, ya can’t do it; and two, you’ll annoy the pig.
randyjet: “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.”
randyjet,
You apparently are suffering from an acute case of ano olecranon agnosia.
You might want to check the archives before opening your mouth again.
John wrote “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’.”
Here’s the actual Preamble:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
It does NOT say “government was limited to security and infrastructure” or anything else you opined.
If I was a liberal and read it the way you did, I’d say that welfare is guaranteed by the Preamble.
John wrote “the Founders were self-reliant, free people with free businesses and private property”
Not to mention lots of slaves. What do you they meant by “all men are created equal” in the Declaration of Independence?