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One of the more depressing aspects of recent constitutional history is the decline in institutional opposition between the branches of our Federal government.
Institutional opposition stems from the separation of powers described in the Constitution, in which the three branches of government exist as separate and co-equal institutions, each with their own prerogatives and responsibilities. If Congress were, for instance, to negotiate a treaty directly with a foreign power, the President should oppose the action on the grounds that Congress has usurped his rightful authority. Likewise, if the President attempted to take out a loan on behalf of the country, Congress should should rightly raise Hell. Whether the president and congress* agree on the substance of these issues should be irrelevant; the point is that each is wrongly poaching on the other’s territory.
Building these tensions into the very structure of our government is widely — and correctly — seen as one of the Framer’s greatest insights. Unfortunately, Madison and the other Framers failed to see how partisan politics would influence, and eventually supplant, institutional opposition as the primary means of checking and balancing our government. As he wrote in Federalist 47:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied.
Would that it were so. But for reasons obvious to us — if not James Madison — a Republican congress is poorly-motivated to check a misbehaving Republican president, just as a Democratic president has relatively few reasons to pursue an errant congress of his own party. The only time, it seems, that we can expect our government to (not) work the way it was intended, is when we have a divided government.
The problem is hardly a new one: the Democratic-Republicans of the 7th and 8th congresses were woefully deferential to President Jefferson, and the battles over the Tenure of Office Act were partisan to the core. That said, things have been particularly bad of late, confounded further by the presidents generally winning these battles. Not only was George W. Bush allowed to send HHS Secretary Tommy Thompson to the House of Representatives to twist arms to ensure Medicare Part-D’s passage, the Republican leadership actually extended the voting period (an unprecedented) three-hours to allow Thompson to work the floor. Republican leaders further allowed Bush to use signing statements in an unprecedentedly aggressive way, and seemed wholly untroubled by being sold the Iraq War on faulty intelligence.
President Obama has gone even further, ignoring or amending portions of the ACA at will, bombing Libya without even pretending to to consult congress beforehand, and consistently pushing the executive’s surveillance powers, even to the point of spying on congressional staff. It takes an unusually myopic, narrow-minded, partisan mind for a Senate Majority leader to ignore these repeated encroachments, but Harry Reid seems to have been born to the role.
This is not to say that there has been no recent opposition between the executive and legislative branches; one need only think of the IRS hearings, the investigations into Scooter Libby’s disclosing Valerie Plame**, or the impeachment of President Clinton. The problem is that these push-backs would never have happened absent partisan motivation.
Since the problem lies in human nature, no solution will be perfect. However, it can be ameliorated by electing congressmen who are willing to fight for their institutional prerogatives against the executive branch for reasons that go beyond partisanship. That means a Congress that is less inclined to defer both to the president and to the vast, entrenched bureaucracies that make up so much the executive branch even when there is little partisan reason to do so.
The good news is that some elements of the current congress appear to have rediscovered congressional prerogative. Though likely led by the renewed emphasis on constitutionalism created by the Tea Party, a small-but-telling example of this trend is Rep. Ted Poe (R-TX) and Zoe Lofgren’s (D-CA) effort to reclaim regulation of aerial drones by the government from the Federal Aviation Administration to Congress. Speaking on the Cato Daily Podcast, Poe described the issue as follows:
Currently, the FAA determines who may and may not obtain a drone in the United States and for what purpose. The FAA should not have this responsibility [emphasis added]. Congress should make the rules, not the FAA on who gets a drone and who doesn’t get a drone. They’re a bureaucracy. Their reasoning, to me, is arbitrary on who may use a drone. That’s why congress weigh-in on this issue — not wait for the courts — and protect the fourth amendment right to privacy…
Getting congress to take more responsibility for something is never going to be easy, and we have to be sure that we don’t over-correct the problem by making the president overly deferential to every legislative whim. Genuine competition between the branches that goes beyond mere partisan checks, however, is sorely needed.
* There’s a strong case to be made that while the judiciary does a passably good job at restricting the executive, but has completely dropped the ball when it comes to the legislature. For the sake of simplicity, however, I’m restricting my argument to the president and congress.
** This post original described Libby as “firing” Plame.