Tag: Separation of Powers

Vindication in Michigan: A Victory for the Rule of Law


Back in early May, I put up a post entitled Despotism Comes to Michigan, going into some detail concerning Michigan Governor Gretchen Whitmer’s seizure of what amounts to dictatorial powers. In it, I suggested two things: first, that the 1945 law under which she claimed to be exercising emergency powers had been replaced by the 1976 law authorizing the legislature to confer on the governor such powers for a limited period of time; and second, that the 1945 law was unconstitutional from the start because it violated the fundamental constitutional principle of the separation of powers by placing the legislative power and the executive power together in the hands of a single person when an emergency had been declared and by leaving the declaration of an emergency to the discretion of that person.

Back in late April, the Michigan Republicans, who control both the state house and the state senate, refused to renew the grant of emergency powers to Governor Whitmer under the 1976 statute and filed suit in state court, arguing that the 1945 act could not be the basis for unilateral action on her part. At the local level and in the appeals court, the Republicans were shot down.

But today, much to my surprise, the Michigan Supreme Court ruled that she had violated her constitutional authority by continuing to issue emergency orders after the legislature had refused to renew her powers. And in the process the court ruled that the 1945 act was, as I had suggested, unconstitutional.

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I am genuinely glad to see so many people rediscovering the value of the Constitution: the structure it gives our government, separation of powers, checks and balances. I just wish they would also remember this insight the next time their preferred policy or politician is the one running afoul of those limits. The president had […]

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Despotism Comes to Michigan


In early Rome, there was an office called the dictatorship. There was a resort to this institution only in an emergency when the senate and the two consuls were persuaded that the latter were not up to the challenge and that the crisis could not be handled unless there was a suspension of the laws that ordinarily limited the power of magistrates. The dictator’s scope was restricted. He was appointed for a particular purpose – and for that purpose only. He was supposed to resign when the emergency passed. Under no circumstances could he remain in office longer than six months, and when his authority lapsed he was subject to judgment. Necessity was the sole justification for any breach of the law.

The office fell into abeyance after the Second Punic War. It was revived, however, in a different form by Sulla who held the office for a handful of years after Rome’s first civil war, and it was revived again in yet another form by Julius Caesar, who had himself named dictator for life. During the American Revolution, a proposal was floated for including a provision for dictatorship within the Virginia constitution, and Thomas Jefferson fiercely attacked the idea in his Notes on the State of Virginia.

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There are any number of days, weeks, and months called out annually for some commemoration or cause. In this week, in this time, in our current circumstances, consider three presidential proclamations. May 1 is Law Day. May is Older Americans Month, National Physical Fitness and Sports Month, and National Foster Care Month. Consider each, in […]

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The Census Case and Our Radical Chief Justice?


I’ve been thinking further about the Chief Justice’s opinion in the Census case, Department of Commerce v. New York (full opinion here). I am concerned that his opinion may reflect a truly radical and dangerous idea, in a way that he may not have considered. Though frankly, this seems unlikely, as he is an extremely intelligent and experienced lawyer and judge.

I find the Chief’s reasoning very troubling, and his rationale was shared by none of the other eight Justices. The Chief thought that the substantive decision made by the Secretary of Commerce — to include a citizenship question on the census long form — was perfectly permissible as a general proposition. However, the Chief thought that the possibly bad motives of this particular Secretary made the decision impermissible.

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I’m reading through a biography of Ethiopia’s last emperor, Haile Selassie, by Asfa-Wossen Asrate. The author is royalty himself, being the great-nephew of the emperor. A little past the mid-point of the book, I’m reading of the gov’t reforms going on in the 40’s and 50’s in which a new constitution is being written as […]

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In this CPAC panel, Dennis Prager, Texas Representative Jeb Hensarling, and Utah Senator Mike Lee discuss both the cultural and legislative steps necessary for Congress to again be a representative and equal branch of government. They argue for taking legislative authority back from unelected regulators and regaining the power of the purse. Preview Open

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Be Still My Constitutionalist Heart!


shutterstock_103176035In these pages, I’ve occasionally griped about how Congress has lost its nerve. I don’t just mean that in a partisan sense — though I mean that, too — but more in the way of Congress’s failure to act as a co-equal branch of government intended to check the abuses of the other branches, specifically the executive. In short, Congress has responsibilities and powers that it should guard jealously, regardless of partisan politics.

To my amazement and pleasure, ten members of congress have taken up the cause and produced an impressive — and surprisingly readable — manifesto that admirably describes the problem and sketches some possible fixes. Do read the whole thing, but what follows is an abridged version.  From the introduction:

Though all three branches of the federal government have contributed to this toxic state of affairs, Congress bears primary responsibility, both for the problem and its solution. In many ways, the federal government is a mess today because Congress allows it to be.

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Some of us at Ricochet (including me) have criticized Will in the past.  But in “The Constitution Is Clear: Congress Should Legislate, Not the Administrative State,” George Will gets it right.  He’s writing on the delegation of legislative power from Congress to the executive branch, endorsing important critiques of that delegation from Clarence Thomas and […]

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The Libertarian Podcast: Epstein on the Supreme Court’s Jerusalem Decision


This week on The Libertarian podcast, Professor Epstein leads us through the intricacies of the Supreme Court’s ruling in Zivotofsky v. Kerry, a case nominally about which branch of the federal government gets to determine what’s printed inside your passport — but one that may have profound implications for the separation of powers when it comes to foreign affairs. It’s a typically comprehensive Epsteinian survey that touches on everything from the weaknesses of Justice Kennedy’s interpretive style to the propriety of signing statements. Listen in below or subscribe to The Libertarian via iTunes or your favorite podcast app.

George Will’s Advice to John Boehner and Mitch McConnell


On Wednesday, as the dust was settling, George Will published a column that deserves attention. In it, he suggested a number of measures that John Boehner and Mitch McConnell should press as soon as the new Congress meets.

Some of his suggestions are obvious: the Republicans should repeal the tax on medical devices, authorize construction of the Keystone XL pipeline, mandate completion of the nuclear waste respository in Nevada’s Yucca mountain. Passing these will place President Obama in the awkward position of following their lead or vetoing these popular and sensible measures.

Wanted: A Jealous Congress


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.

Was the Bergdahl Deal Legal?


ObamaDeepThoughtsWas President Obama’s exchange of five Gitmo detainees for Army Sgt. Bowe Bergdahl illegal?  Some conservatives — most notably the editors of the Wall Street Journal — are defending the decision as a proper exercise of Obama’s Commander-in-Chief power. I am not so sure. In fact, rather than a sign of strength, I think President Obama’s decision will ultimately weaken the office over the long run.

I think that a blanket legislative ban on the release of Guantanamo Bay prisoners would violate the President’s authority as Commander-in-Chief to control prisoners of war. Control of prisoners of war has long remained an important aspect of tactical and operational decisions on the battlefield; their detention and release can influence the morale of the enemy and their treatment of own soldiers. I make this case in greater detail in my 2006 book, War by Other Means, where I argued that President Bush should have had full constitutional authority as Commander-in-Chief to set policy on the capture and detention of al Qaeda operatives.

On the other hand, I think that Congress can use its spending power to decisively influence military policy. It could, for example, have closed Gitmo long ago by refusing to fund it. It can also prevent the transfer or release of prisoners by refusing to pay for it. In fact, it has done this for transfers of prisoners to the continental United States. I believe that Congress’s power of the purse is plenary and that the President cannot override it, even with the Commander-in-Chief power.

The Coming Clash on Benghazi


GowdyWith the formation of the House Select Committee on Benghazi, I predict that there will be a constitutional collision between the Obama administration and Congress — one that the executive will eventually win.  

Obama’s aides will refuse to testify on sensitive matters involving the facts of the 2012 attacks on the U.S. consulate, which killed the U.S. ambassador to Libya and several other U.S. officials. While some of the information might be protected by executive privilege, most of it isn’t. But even if Congress holds the witnesses in contempt, there is little doubt that Attorney General Eric Holder — who himself has already been held in contempt of Congress — will order prosecutors to refuse to enforce the legislative branch’s judgment in federal court.

This administration, after all, has systematically refused to enforce federal laws to suit its own political agenda — in contrast to the few occasions in the past where presidents have questioned federal law for constitutional reasons. Unless Congress uses its own inherent power to enforce contempt, to which it has not turned in many years, the Obama administration may be able to run out the clock on Benghazi, waiting for the next presidential election.