RESTORING BALANCE AMONG THE BRANCHES

3branchesBelow 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.

220px-Ron_Johnson,_official_portrait,_112th_Congressturley_jonathanRon 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

181 thoughts on “RESTORING BALANCE AMONG THE BRANCHES”

  1. That’s funny. Did you know the Hebrews plagiarized the story of Noah from the Sumerians?

  2. Paul,

    Here’s what I said:

    I’m sure there are some folks out in Kentucky, insisting that Noah’s Ark ACTUALLY saved mankind and all the animals of the earth from a great flood less than 5,000 years ago, who could “benefit” from your “reasoning.”

    Did Noah’s Ark ACTUALLY save mankind and all the animals?

    Do you consider the Flintstones to be a good documentary on the peaceful co-existence of dinosaurs and humans?

    Way to miss the point.

    1. Bob, Esq – and as I said there are lots of flood stories from different cultures. All of them having mankind being saved. And I said the Bible probably based their story on the one from Sumeria which is very similar.

  3. It’s only now that it has fully dawned on me just how broken the system is – Congress passes a law (“we have to pass the bill to find out what’s in it”) and it gets sent to HHS who then fill in the details as they see fit, who then get the Institute of Medicine to write their bit …

  4. randyjet,
    How can you state that freedom of speech, press, individuals, and religion is FAR better. Look around us–there are whistle blowers being threatened with prison for making people aware of “Big Brother.” There are religions having to fight for their religious rights from government, atheists and groups connected with the CPUSA.
    I probably grew up in the era as you did. I grew up with among Latinos and I married to one. My husband grew up in Illinois and has said he was never treated any differently then any other person in his neighborhood. His dad, who came from Mexico, held a good job as a crane operator for a company., My Latino friends and the few black people who lived in our community were never left out of groups. All legal citizen had the right to vote, the right to get an education, and the right to work, the right to marry, the right to buy property, etc. They weren’t treated any differently then anyone else.
    I understand that certain states like Texas and those down south were prejudiced. But don’t paint every city or state with a broad brush.
    As for the CPUSA, they too have had freedom to spew their propaganda and have infiltrated our educational system, political parties, and general public..
    As I look around, I see it may seem better off to you, but its not, people have only exchanged one set of values and morals for another.

    1. gigi, During the McCarthy era and into the 60s we had very limited freedom of speech. If you spoke of radical ideas, you could and many DID go to prison for that speech. THAT is why I know that we have FAR more freedom today than in our recent past. A friend of mine was arrested for passing out anti-Vietnam War leaflets on the sidewalk in Houston. The NAACP was an illegal organization in many southern states and membership brought PRISON time. In Houston in the 70s when I moved there, anti-war and liberal people homes were shot up, bombed, all with the blessing of the HPD! KPFT had its transmitter blown up a couple of times, and we later found out that the HPD knew who was doing those crimes and let it continue if not encouraged it. We could not get the internal files to prove that last point.

      You point out whistleblowers being punished, but that is a FAR different case since it has to do with security clearances and classified material. There is NO government on earth that will allow such things to go on. Today you are not going to go to prison for your political ideas and writings. The Smith Act was finally killed by the SCOTUS, but not before many people did many years in prison as political prisoners. Of course, if you have no beef with the system, you do not notice that you have no freedom. The real test is when you disagree. I remember that people were arrested at ports of entry for bringing back a copy of Joyces Ulysses. The US government destroyed as many copies of I.F Stone’s HIDDEN HISTORY OF THE KOREAN WAR that they could.I had to read a copy that was smuggled in from Canada, and had been Xeroxed. Are there any books that you have read with the binder up because of having been copied and smuggled into the US? How many times has Chris Rock been jailed for his comedy? Lenny Bruce was routinely arrested and jailed many times in NYC nightclubs for his rants against the Catholic Church. Birth control was ILLEGAL in many if not most states because of religious, mainly Catholic opposition to it. Latinos could NOT marry a white person in California and many other states as well. Needless to say blacks had NO rights whatsoever in the majority of states. I suggest you remember that the desegregation suit of Brown vs TOPEKA came from KANSAS. Black Americans may have had some de jure rights in the north, but they had no rights to buy homes where they wished, and they had no ability to get loans for homes for the most part. Ever hear of REDLINING?

      So far, despite Prof Turley’s position, we are FAR freer today than we have been in our recent past. THERE is NOTHING in his complaints that comes close to the absolute lack of freedom in the US that we had back when I was young. In FACT, I had the FBI tracking me for a number of years, and they went ballistic when I moved to Houston and they could not find me for a number of months. Fortunately, I had a good job before they caught up to me, and I was off probation so that the company could not fire me when they informed the company that I was a radical. So have YOU had any such lack of freedom imposed on YOU? My crime was to be in the Socialist Workers Party and the Young Socialists Alliance. The way I know all this is because I got my FBI flies, heavily redacted of course, and my only regret is that it was not bigger. Sort of like not being on Nixon’s enemies list. I really regret that too, though I did get a mention in the Congressional Record as part of a group in the SWP. That was scant consolation though, but back in earlier days that you mention, I would not look at it as funny, since I would have been arrested and sent to prison.

      You mention the so called values. The values back then were against political freedom, against freedom of the press, speech, etc..The morals were that race was the primary qualification for housing, jobs, and you BETTER DO AS YOU ARE TOLD, OR ELSE! And the government REALLY meant it. You would go to jail, lose your job, your home, and if they could not get those, then they would take away your ability to travel by revoking your passport. They did that to Dr. Linus Pauling, the only person to win TWO unshared Nobel Prizes. I suggest you look his bio up on Wikipedia. The US beat the Soviet Union in going after a noted scientist, and they cost him another Nobel prize by doing that too. So for everything you mention that supposedly is destroying freedom, I can give you hundreds of examples of FAR worse that was done in MY lifetime.

      1. randyjet – your reply to gigi is too long to respond to in one post, so I am going to break up my answer. I suspected you were a socialist, but did not realize you had gone that deep into the woods.
        1) The NAACP was illegal in only one state for only a short time and that was because they would not give up their membership list (sound familiar? IRS anyone. IRS anyone?). Membership did NOT bring prison time. They were NOT illegal in a lot of states in the south.
        2) You make some claims about a radio station but it is very anecdotal and unsupportable.
        3) The Smith Act was not killed by SCOTUS, but has been amended several times. It is still operative. The number convicted under the Smith Act is under 300. The reasoning for several of them sounds much like the reasoning used for militia groups today. Lots of guns, training, meeting with Trotsky, etc.
        4) The question is not who got arrested for smuggling in James Joyce’s Ulysses, but rather did you slog your way through the whole book? It helps to be male, Catholic and drunk. However, only the French edition of Ulysses was declared obscene in the US but that was over turned in 1934. The US was the first country where the book was freely available. So if you remember people smuggling it in, they were wasting their time. You might be thinking of D. H. Lawrence’s Lady Chatterley’s Lover, but that was available in the US by 1959 (my aunt loaned me her copy).

  5. Good post, randyjet. Also, when a picture of Ron Johnson, one of the poster boys of republican obstructionism, appears at the top of the page, one probably cannot expect the conversation to remain non partisan.

  6. Monsieur Villefort,

    Are you equating “the war on terror” with the revolutionary war and the civil war?

    Villefort: “War is war, Bob. You’re just as dead when you don’t protect yourself from your enemies regardless of how you define it.”

    Can you show us the logic that permits you to equate an idiom (“war on terror”) with an ACTUAL war?

    I’m sure there are some folks out in Kentucky, insisting that Noah’s Ark ACTUALLY saved mankind and all the animals of the earth from a great flood less than 5,000 years ago, who could “benefit” from your “reasoning.”

    1. Bob, Esq – there are many cultures that have a flood myth, including the Inca. We do know that there was a great flood in that area of the Biblical flood, we are just not sure when. We also know that it sunk many villages, probably killing thousands. The Biblical story (of which there are two, actually) is probably a riff on the Sumerian flood story.

  7. Many on this blog continue to argue in favor of their partisanship and who they hope will defeat the co-author of this article. Rather than continuously throwing punches in the air, can we please face the issue before us. Our country and our Constitution is in a downward spin! Our Congress, judicial branches, and Federal Administrators are putting our country’s needs aside for their own vain aspirations. What are we going to do about it?
    If we don’t shore up our constitutional foundation, future presidents, future Congress people, and judges will continue to take advantage of our system, sit on their soft cushions and do little to work together to solve the vital problems of this society.

    1. Gigi, Since I have a good knowledge of history and grew up in the McCarthy era and was active in the Civil rights movement, I have to tell you that in terms of freedom for the individual and freedom of speech, press, etc we are in FAR better state than we were back in those days. The only thing that is in a downward spiral is our economic system where the average person is worse off than in the past. When I was young, hundreds of people, were sent to prison for their political views, mainly those of the CPUSA under the Smith Act. Texas tried to make membership in the CPUSA a capital crime and put any such persons to death. Black Americans, Latinos, etc.. had no political rights at all.

  8. “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.”
    ***************************

    Raise your hand if you want this Congress and this SCOTUS to reassert itself and lead the nation into a conservative wonderland. Personally, I can wait.

  9. Paul See Schulte,

    “Even now you have a compartmentalized rationale.”

    Said the pot to the kettle.

    “It is kind of liking [like] saying, that Hiltler [sic] guy sure was good to his dog so I should like him.”

    Not at all. It’s more like you deriding people that you don’t agree with by using simple platitudes and comparisons a child could muster.

  10. Whatever… Jill is not changing my mind and I am not changing hers. Going round and round on the same old is a waste of time,

  11. Paul, Paul C, You guys should stick together with Jill. Bob makes a good assistant. He has bullied many a loyal democratic. She has led the anti-democrat charge for years and years. I think she supported Buddy Roemer in the republican primary and not Ron Paul. I could probably find the link but my dogs are begging for a walk.

  12. Paul C You lose as I typed the question right after I read it and before you took your cheap shot.

    1. SWM – Jill asked you the question over and over earlier today and you never answered it. Even now you have a compartmentalized rationale. It is kind of liking saying, that Hiltler guy sure was good to his dog so I should like him.

  13. It was interesting that SWM would not answer why she supports a man that kills men women and children including U.S. citizens.Paul
    I think one American citizen was intentionally killed, and I do not support that nor do I support the killing of innocent people in Pakistan with drones. Just because one voted for a person does not mean you support all their actions. Isn’t it unrealistic to hold someone to that standard?

  14. Jill, I’m with you 100% on this thread. I know very little about how you feel on social/fiscal issues and you may be 100% opposed to my views, But I am with you 100% that we need to return the rule of law for everyone in this country including the President, the Koch brothers, and the NSA chief. I find some of your antagonists comments quite amusing. I get the same sort of thing with people calling me a Bush supporter (never voted for a Bush in my life) just because I say that Obama thinks he can kill american citizens.

    It was interesting that SWM would not answer why she supports a man that kills men women and children including U.S. citizens.

  15. War is war, Bob. You’re just as dead when you don’t protect yourself from your enemies regardless of how you define it.

  16. Bob, Esq:

    Why don’t we just agree that we don’t owe enemy combatants of any citizenship any due process rights when they are pointing guns at us — from a mile away in the tree line in south central Pennsylvania or from a mosque in Yemen 7,000 miles away? Would you really argue the point?

  17. Monsieur Villefort,

    Are you equating “the war on terror” with the revolutionary war and the civil war?

  18. Not many comments on topic in this thread.

    “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.”

    “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.” — Federalist 47

    “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” — Federalist 51

  19. Paul:

    “Those children at the border would be less of a problem if we just bused them back across.”

    ***********************

    Bus them where, Marquis Evrémonde?

    1. mespo – any place south of the US border will be just fine.

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