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Separation of Powers

We so often hear about how republicans (or democrats, I’m going to frame this in the light of our current political break down, but it’s all valid flipped around the other way) are obstructing this or that, how Obama couldn’t get anything done because the House won’t work with him, or simply cave to his plans. We hear about how all of our problems would be solved if only Congress would enact Obama’s every wish and dream. What seems to get lost is that these difficulties are not mere pitfalls or unintended consequences of our political system, they are deliberate and perhaps the single greatest source of Americas success.

Take a look at the government of the UK. The courts in that country have no authority to overrule or throw out acts of Parliament because parliamentary supremacy is the name of the game. Going deeper, there is no elected chief executive, the prime minister is simply the leader of the party that holds the greatest number of seats (simplified, but that’s the gist)*. Essentially you have a government that is bound by no constraints whatsoever, they may literally do anything and one party has almost all of the available power, owing partly to the fact that the UK has no written constitution.

Contrast with the United States, where the presidency is regularly held by a different party than controls all, or part, of Congress. Further, the Supreme Court is able to toss out laws that conflict with the Constitution. The President can veto any legislation, but Congress can pass it with a super majority if they please. The president nominates judges, but the Senate can refuse to confirm them. Congress can remove a judge or any other elected official for bad behavior, but the system for doing so is a rather difficult hurdle to overcome. Even the states have some checks on federal power, as they alone decide how to award their electoral votes** and the states may appoint senators and representatives when vacancies occur. I could go on and on and on.

These, and many other checks and balances, result in a system that is vastly inefficient when it comes to passing laws and imposing the will of a simple majority on its citizens.

Unfortunately, many people fail to see the beauty in this system, the almost indescribable elegance of it. Just as unfortunate is the apparent and increasing unwillingness of the Executive and Legislative Branches to recognize this separation of powers. Enter the Defense of Marriage act (DOMA). The Obama administration simply decided to stop defending it in court. Regardless of your view on the matter of gay marriage, you should be appalled by the whole mess.

First, Congress no more has the power to define marriage as it does to decide the color of the carpet in the office of Maine’s Governor. Second, the Executive Branch doesn’t have the power to decide what laws should be defended and which should not, the President is directed to enforce and uphold the law as promulgated by Congress, not by his own whims.

Congress shouldn’t have passed the law and Obama should have fought for it all the way to the Supreme Court. Worse even than the government ignoring the Constitution are the people who do so. Gay marriage supporters applaud the president, opponents applaud Congress, both groups ignoring the fact that each of their views constitutes support for the erosion not only of our freedom, but of the bulwark that keeps our government from becoming tyrannical and despotic.

The presidency in particular has gobbled up more and more power as time has gone on, creating an office that is far more important than it ought to be. If the Constitution were held in higher esteem by our elected officials, we would not only be safer, but we wouldn’t be forced every four years to choose between candidates on the basis of which rights we are most content to relinquish.

*There is almost no difference between this and the electoral college system we have. It’s possible, and not historically irregular, for the prime minister to have lost the popular vote but win the prime ministerial post anyway. 

**The states are not required to hold a public election for president. In the early days of the republic, several states, a majority in fact, simply appointed electors by vote of their respective legislatures. This might seem very anti-democratic but it is in fact just the opposite. If you remember the 2000 election in Florida, it wasn’t clear that the recounting would be completed before the deadline, had that happened Florida would simply have lost it’s say in the election. The Florida Legislature prepared a bill to award the states votes to Bush and ignore the uncompleted election. Obviously that is less than optimal, but its a damn sight better than having the whole state locked out of the voting.

Categories: Uncategorized
  1. 2012/10/26 at 00:30

    “We hear about how all of our problems would be solved if only Congress would enact Obama’s every wish and dream. What seems to get lost is that these difficulties are not mere pitfalls or unintended consequences of our political system, they are deliberate and perhaps the single greatest source of Americas success.”

    This starts off strong and doesn’t fail to impress. Well said Nate.

    Not defending DOMA in court sets a dangerous precedent for the future in the same way that European countries that banned Holocaust denial accidentally set up a precedent for banning criticism of Islam.

  2. 2012/10/31 at 17:37

    ‘Journalist’ Michael Hartwell not doing his homework? I’m shocked.

    As it turns out, other presidents have declined to defend certain laws, so President Obama has not set a precedent. Furthermore, the President is tasked with defending the Constitution before he defends any laws, so he has done exactly what is required of him.

  3. 2012/10/31 at 19:26

    I’ll grant you some of that, he is not the first president to do such things.

    However, if you want to count the oath of office as the list of things the president is supposed to do, and the order in which he is to do them, you are wrong. The first thing he or she swears/affirms is to execute the office of the president, something set by the constitution. He or she then finishes up by swearing to, “preserve, protect, and defend the constitution”.

    Note the conspicuous lack of the words, “unilaterally interpret”. Congress makes law, the president enforces, administers and defends it, something Congress grants funds to do, and the courts interpret.

    Unless you are reading some US Constitution that is, as yet, unknown to the people of this country, you are describing an office that is not so much unlike a dictator that many Latin American countries might have a hard time telling the difference, and they know dictators.

  4. 2012/11/01 at 15:00

    The sequence of the phrasing is 100% irrelevant. First, the two tasks are not mutually exclusive. Second, no one can execute the office of the presidency if he doesn’t first defend the Constitution.

    You seem to be under the impression that it isn’t the task of all three branches of government to uphold and defend the Constitution. You have been misinformed.

  5. 2012/11/01 at 15:21

    I actually rather like this notion about Presidents – if the next President decides he doesn’t have to enforce the mandates of Obamacare, then apparently he is free to do that.

  6. 2012/11/01 at 16:07

    That certainly seems to be what he is saying, it’s just hard to tells because he isn’t actually making any argument.

  7. 2012/11/02 at 18:34

    That’s partially right, Jack. More specifically, though, if that President believes Obamacare to be unconstitutional, then it is his duty to reject it insofar as he is able with the powers of his office. This is a substantial piece of the Oath of Office. However, only Andrew Jackson and, less famously (in this context), Abraham Lincoln have really done anything under it.

  8. 2012/11/02 at 23:46

    Actually I would be curious in what cases you think those Presidents didn’t uphold Federal law?

  9. 2012/11/03 at 14:08

    I’m once again wondering if you actually know what the oath of office is. Unless you are saying that the president should ignore the limits placed on his office in the constitution, in order to protect it, his ability to reject law is limited to the veto and whatever latitude is given in the law with regard to enforcement.

    You seem to be making an argument that recognizes no limits on the power of the presidency, as long as the president believes he is acting to protect the founding document. Once again, this is not a Banana Republic.

  10. 2012/11/03 at 16:06

    Jack – Jackson cited his oath when refusing to renew the charter for the national bank. It could also be argued that he was utilizing his oath when he ignored Marshall’s ruling on Indian removal. Lincoln cited the oath when suspending habeas corpus.

    Nate – You are explicitly ignoring what I have said. The President is required to uphold the Constitution insofar as he is able with the powers of his office. That means he cannot exceed his powers in order to uphold the Constitution.

  11. 2012/11/04 at 14:03

    Jackson dealt with the national bank by vetoing it’s renewal, he didn’t simply ignore a law passed by Congress. And he wasn’t obligated to enforce the Court’s ruling regarding the Georgia regarding Indian lands since the Federal government wasn’t party to the case – Georgia was obligated to follow the court’s ruling, and it eventually did. So neither case is applicable here.

    And Lincoln didn’t cite the oath when he suspended the Habeas Corpus in fact it would have been odd for him to do so since the right of a writ of habeas corpus is iteself protected by the Constitution – he was actually ignoring a Supreme court order, not a law Congress had passed. He did interpret the constitution as giving him this right, (under Article I, Section 9, clause 2) but Obama has made no such justification.

    So while there may be precedent for what Obama has done, it isn’t these cases, and it is bad precedent, as Obama is a bad President for undermining Federal Law.

  12. 2012/11/04 at 18:22

    Not ignoring, just not understanding. I wavered back and forth between that interpretation and the one I finally chose to run with. In any case, our 3 branches of government are not independent, they are coequal, The distinction being that all three share power and have limitations and duties that, only when combined, add up to the full protection and and efforts to preserve the Constitution.

    Usurping duties and privileges from one branch to expand another without the legal empowerment to do so is tantamount to treason, treason in the same manner as blasphemy towards (insert god(s) here), or offenses against an absolute monarch.

    With regard to writs of Habeas Corpus, the Constitution permits such a suspension, as with Lincoln in 1861 and FDR in 1942 (only in Hawaii I think, which was placed under martial law, there were probably other areas, the aleutian islands perhaps)

  13. 2012/11/04 at 20:56

    Jack – Jackson cited his oath as his reason for rejecting the law. That establishes the point I have been making, which is that the foremost duty of the President (and Congress and the courts, for that matter) is to uphold the Constitution. In this case, that duty is largely derived from the oath for the President. As for Lincoln…well, your understanding of history certainly matches your grasp of science.

    Nate – A usurpation of powers from one branch without the proper legal empowerment goes beyond the scope of what I’ve been arguing the President can do. For instance, I have said the President can refuse to defend certain laws – nay, he must refuse – if he believes them to be unconstitutional. In the case of President Obama, he is not only well within his powers in what he has done, he has done what is required of him.

  14. 2012/11/04 at 21:03

    Well we will just have to agree to disagree. I don’t want the president holding court or making law, at least no more than I want Congress or the courts to run the military. My reading of the Constitution leads me to those feelings.

    Being able to refuse to uphold a law or part of one means that there is no such thing as a veto override, and the courts have ruled decisively that a president cannot veto line items.

  15. 2012/11/04 at 21:28

    What is at dispute isn’t why a President rejects a law, what is of concern is the manner in which he does so. The Constitution affords him a veto; it doesn’t indicate he is free simply to disregard enforcing a law duly passed by Congress. None of the examples you cited demonstrate such a precedent despite your convoluted attempts to get them to. It’s just another case where you gloss over the specifics and then act like they support your argument.

    But the point may be moot in two days anyway.

  16. 2012/11/06 at 00:46

    Nate – I don’t particularly want any president using their powers this way, either. I think the founding fathers made a mistake, but it’s a mistake that is as clear as day.

    Jack – You can dance around and move the goal posts all you want about what you think you’re disputing (as is par for the course), but this isn’t all that radical: The three branches of government are each tasked with upholding and defending the Constitution above all their other duties. President Obama did exactly what was required of him in dropping his defense of DOMA.

  17. 2012/11/06 at 10:47

    The three branches of government have specific powers allotted to them defined by the Constitution itself. A veto, the power of the purse, judicial review. The President doesn’t just get to make up new powers and say ‘I’m defending the Constitution’, because in assuming such powers to himself not defined in the Constitution he is in fact not defending the integrity of the Constitution. You can’t defend the Constitution by ignoring it.

  18. 2012/11/09 at 23:05

    I thought Nate and I already resolved this through our adult discourse. No one has said the President can make up new powers. For instance, refusing to defend a particular law is not the creation of a new power. In addition, the President is required to not defend that which is unconstitutional, less he is specifically compelled to do so for some inane reason.

  19. 2012/11/11 at 01:53

    Most every elected official in the US (including members of the military) swears to ‘defend the Constitution’ – does this oath give them the right to simply ignore and or refuse to comply with any law they deem unconstitutional?

  20. 2012/11/12 at 22:09

    Yes, up until the point where there is some overruling system above them and/or the constitution requires something specific of them.

  21. 2012/11/13 at 12:33

    It’s an interesting theory because it would seem to usurp the legislative powers of state and federal congresses, as well as the review powers of the court. Not only as a check by the executive branch, but by every US official.

  22. 2012/11/14 at 00:24

    You appear to be interested in responding to points already covered. Would you like to next discuss how the President didn’t set a precedent?

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