By Mark Esposito, Weekend Contributor

I think it was Winston Churchill who reminded us that the “supreme virtue” of government is action. In fact, the greatest of  modern British prime ministers, who often marked his staff memoranda in red with the words “Action This Day,” counseled that ” I never worry about action, but only inaction.” Action in recognizing problems. Action in mobilizing support and action in addressing the causes of human suffering and improving the lives of those over whom you have power and authority.

On this side of the Atlantic, the framers understood this seemingly obvious facet of government. Jefferson wrote, “The purpose of government is to maintain a society which secures to every member the inherent and inalienable rights of man, and promotes the safety and happiness of its people.” Protecting individual  rights and promoting the security and happiness of those individuals is the essential business of government. Not “either-or” but both.

“We the People” were formed into a  “more perfect Union” for some precise purposes: “to 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.” That’s not a request; that’s a duty. One from which all those sub-duties known as the laws of the Constitution flow. And those duties — all of them — flow directly down from the People to their servants in the three branches.

The founders, of course, knew there would be tension any time power is divided and they relied on the good will of  the people along with an iconic government structure to keep those powers from being usurped by the other branches. Professor Turley has written eloquently about what he perceives is the erosion of the protections of the separation of powers doctrine in favor of an imperial presidency. He notes the abundance of recess appointments under recent administrations and the mushrooming of executive orders as proof of a presidential power grab which he feels can be remedied by a renewed assertion of rights by Congress and the courts. Recent decisions of the SCOTUS, he claims, support this position though one wonders how these, in themselves, are not proof of the doctrine working precisely as ordered.

While he full well explains the steps to remedying the current state of affairs, he erroneously, in my judgment, omits the implied duty that runs throughout the separation of powers doctrine — the concomitant duty of those branches even as they assert their prerogatives to do something with that power. It is not enough to simply re-establish the balance of power. That power has to be exercised in furtherance of agreed-to national goals. A perfectly balanced system that accomplishes nothing is every bit as much a failed government as one that coerces its people. And a reestablishment of a pristine version of separation of powers is as short-lived as the mayfly if the power vacuum caused by inaction remains. It is as sure a historical axiom as we have, that power will always expand to fill a vacuum.  That is precisely what we have today even as Congress, led by Speaker John Boehner seeks to sue the President of the United States to rein in what he considers to be an administration run amok doing things.

And what prompted Boehner’s wrath? Well, the President frustrated by the Congress’ obstinacy to do anything but tease on immigration reform for purely political reasons has vowed to do all he can by executive order to address this critical problem most recently manifested by thousands of vulnerable kids fleeing war and poverty and streaming across the US-Mexican border.

Boehner has written an opinion piece for CNN explaining the reasons for his decision to seek legislation authorizing the right to sue the President. After reminding us that everyone in government swears an oath to that featured document encased in glass at the National Archives, Boehner explains:

But too often over the past five years, the President has circumvented the American people and their elected representatives through executive action, changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold — at times even boasting about his willingness to do it, as if daring the American people to stop him.

Daring the American people to stop him? We had that chance twice – as recently as 2012. Obama won the popular vote then by 5  million voters and the electoral college vote by 126. Was the problem paramount in the public’s collective mind to be solved by the election an administration on the loose or a society desperately seeking one person who would do something about the problems that beset them? Problems which, by the way, most fair minded folks would agree did not derive with the current occupant of 1600 Pennsylvania Avenue.

It’s a time-tested feature of the American Presidency that holders of the office are judged by what they do for people and not how they do it. Lincoln is remembered in the consciousness of the public  for ending the Civil War not suspending habeas corpus. FDR is lionized for the New Deal and his leadership against fascism not the court-packing plan. And even ol’ unpopular ‘W” himself has received a popularity renaissance of sorts for his efforts to combat terrorism with hardly a mention of the dubious methods he employed. Why would the public in the last two elections be looking for anything different?  Give us someone who can bring about positive change in Washington and the society it oversees was the order from the populace.

Perhaps the country felt that way because the Congress they sent off to Washington time after time has totally abdicated its responsibilities to govern or even make the pretense of governing. It’s as if that Republican dominated or stymied body has taken Grover Norquist’s pledge to heart — with an added bonus: No new taxes, of course, and we’ll reduce the size of government so we really can just strangle it in the bathroom. Need some proof? Let’s take a history lesson.

In 1948, Harry Truman derided the 80th Congress the “Do-Nothing Congress.” Dominated by Republicans, the body was pro-business, anti-Fair Deal, and determined to do nothing that would aid the Democratic Party. It passed just 906 public laws even as the nation was coming out from under the burden of a world war and had to deal with the returning veterans and a threat from the Soviet Union. The public took their wrath out in the election of 1948 and sent 82 Republican lawmakers home.

Fast forward to today and the explosion of problems never even envisioned by the 80th Congress like immigration reform and the terrorist threat. How has the body partially overseen by public servant and sworn constitutionalist John Boehner done in recognizing and addressing the nation’s many problems?  USA Today answers the question in an op/ed:

Having enacted 104 laws since early 2013, the 113th Congress is on track to break the previous record low of 283, set in 2011-12 by the 112th Congress. And with last fall’s pointless government shutdown, the current Congress reached a level of dysfunction that the 112th never attained.

To call the 113th Congress bad is like calling water wet. It is harming the economy in the short term while running from serious long-term problems. Appropriately, its approval ratings are stuck in the teens, with occasion dips into single digits.

 

283 is a far cry from 906 and the prospects look very good for a mid-term election that will bring us even less legislation and more bickering. Viva la separation of powers and its modern-day cousin, gridlock!

The historic problem is what do you do when you’re facing very real international and domestic problems with an indispensable partner who fails –and even refuses –to act? For example, how do you address the problems of thousands of unaccompanied and exploitable kids crossing the border? If you’re Congress, you do nothing and blast someone who does. If you’re the President you push the buttons you have. Obama has vowed to ” [begin] a new effort to fix as much of our immigration system as I can on my own, without Congress.”  These measures would take the form of increased enforcement of the borders and extend to possibly “giving work permits and protection from deportation to millions of immigrants now in the country’, according to the New York Times. 

Boehner’s response was predictable and apoplectic, “In our conversation last week, I told the president what I have been telling him for months: the American people and their elected officials don’t trust him to enforce the law as written. Until that changes, it is going to be difficult to make progress on this issue… It is sad and disappointing that – faced with this challenge – President Obama won’t work with us, but is instead intent on going it alone with executive orders that can’t and won’t fix these problems. ”

Work with us?  In February, Boehner himself was privately trumpeting a landmark immigration bill that would address many of the problems both parties see as resolvable. That was in response to some very public polling showing Republicans being battered among Hispanic voters. But conservatives in his own party nixed the plan threatening to pull support for his speakership if he moved forward to introduce the legislation. The pretense for the reversal was Republican insistence that Obama precipitated the crisis by scaling back on deportation for younger undocumented aliens and that therefore he couldn’t be trusted to faithfully enforce the immigration laws. That doesn’t explain why Republicans backed off legislation that would address the problem and take effect after Obama’s term ends. As Senator Charles Schumer reiterated on the Senate floor, “If Republicans can’t agree to pass a bill that goes into effect after the president’s term, then we know that ‘mistrust of the president’ is nothing but a straw man.”

So Obama acts alone. Constitutional? We’ll see, but, the structural problem remains. Can the voters fix it? Maybe, they did in 1948, but the country was less polarized along ideological lines. A recipe for disaster?  Probably and one not likely to be fixed no matter how the conservative dominated Supreme Court rules. And action to address the nation’s woes? Well, that seems to be neither the concern of the court, nor the Congress, and, for well-articulated doctrinal reasons, perhaps not even the President’s. So who is charged with performing the duties of the Constitution? Perhaps it’s just us.

And what would Jefferson say about the nation he founded and its seeming inability to get out of its own way?  “Do you want to know who you are? Don’t ask. Act! Action will delineate and define you,”  comes the judgment from our third president. Which prompts me to ask: What, my dear Sage of Monticello, does our inaction say?

What do you think?

Source: CNN and throughout

~Mark Esposito, Weekend Contributor

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