Separation of powers

  • August 23, 2012
    The Parties Versus the People
    How to Turn Republicans and Democrats into Americans
    Mickey Edwards

    By Mickey Edwards, a former member of Congress who represented Oklahoma’s 5th congressional district for 16 years

    The underlying principle of America’s Constitution is pretty straight-forward. Americans are to be citizens, not subjects. Governments tell their subjects what to do but citizens tell their governments what to do. In the United States, that fundamental hallmark of citizenship is accomplished by (a) placing most of the major powers of the federal government in the hands of the national legislature, and (b) giving the people the right to determine who will serve in that decision-making capacity. Leaving the people with that power to determine what government shall and shall not do, and further arming them with specific restraints on government both within the original text and the subsequent Bill of Rights, the Founders gave citizens powerful weapons with which to defend their liberties.

    They had not, however, counted on the pernicious effects of a modern political party system which renders almost moot the separation of powers at the heart of the constitutional check on executive overreach. America’s leading Founders (among them, Washington, Adams, Jefferson, and Madison) warned repeatedly against the creation of the kind of political parties we know today; limited and shifting factions were one thing but permanent factions were something altogether different, something to be feared. If there is one notable feature of today’s party system it is the extent to which American civil liberties are jeopardized by the tendency of congressmen to willingly defer to presidential claims of extra-constitutional authority if the President and congressman share a common partisan identity.

    My own personal experience with that problem came when President George W. Bush began to regularly claim the authority to disregard clear federal law – legislation that had become binding law with his own signature – because he felt it impinged on his own broad definition of executive powers and because, well, it would be inconvenient to have to actually veto legislation that combined provisions he agreed with and those he found troublesome, even though the veto is the only remedy constitutionally provided to the President when he finds parts of the legislation distasteful. 

  • July 11, 2012
    Guest Post

    By Erin Ryan, a Fulbright Scholar in China. She is a professor of law at Lewis & Clark Law School, where she will return this summer. Ryan is also author of Federalism and the Tug of War Within. Read her previous guest post “Health Care Reform and Federalism’s Tug of War Within.”

    In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the various arguments about how the commerce and tax powers do or don’t vindicate the individual mandate. But the most immediately significant portion of the ruling –

    and one with far more significance for most actual governance – is the part of the decision limiting the federal spending power that authorizes Medicaid. It is the first time the Court has ever struck down congressional decision-making on this ground, and it has important implications for the way that many state-federal regulatory partnerships work.

    The Spending Clause authorizes Congress to spend money for the general welfare. Congress can fund programs advancing constitutionally specified federal responsibilities (like post offices), and it can also fund state programs regulating beyond specifically delegated federal authority (like education).  Sometimes, Congress just funds state programs that it likes. But it can also offer money conditionally – say, to any state willing to adopt a particular rule or program that Congress wants. In these examples, Congress is effectively saying, “here is some money, but for use only with this great program we think you should have” (like health-insuring poor children). 

  • June 28, 2012

    by Jeremy Leaming

    As expected the House of Representatives voted to find Attorney General Eric Holder in contempt of Congress for allegedly withholding documentation about the federal government’s troubled operations, dubbed “Fast and Furious,” to curb violence related to drug smuggling along parts of the nation’s Southwest border.

    The charge to tar Holder has been led by U.S. Rep. Darrell Issa (R-Calif.), who spends large amounts of his time tending to his business holdings back home. Though the Department of Justice has provided nearly 8,000 documents to a House committee, Issa, one of Congress’s wealthiest members, has continued to claim there must be more, and that the government is covering up the bungled efforts, which started during the previous administration.

    House Minority Leader Nancy Pelosi (D-Calif.) was among nearly 100 House Democrats who walked out of the chamber in protest of today’s vote. Earlier this month, Pelosi blasted the Republicans’ hounding of Holder as rooted in their opposition to the Department of Justice’s efforts to ensure that new state restrictions on voting do not violate the Voting Rights Act.

    “These very same people holding in contempt are part of a nationwide scheme to suppress the vote,” Pelosi said. “They are closely aligned with those who are suffocating the system, special interests, secret money, and they are poisoning the debate. They are poisoning the debate with money.” TPM has video of Pelosi’s comments here.

    The New York Times in a June 21 piece noted the fairly obvious – that most recent attorneys general have faced partisan attacks.

    Nonetheless, The Times conceded, “Holder has become a recurring target for conservative anger because he is associated with some the administration’s more liberal policies. They include reinvestigating Bush-era torture allegations, using the civilian criminal justice system for terrorism cases, refusing to defend the law banning federal recognition of same-sex marriage, challenging Arizona’s crackdown on illegal immigrants and invoking civil rights laws to block voter ID measures.”  

  • June 25, 2012
    Guest Post

    By Alan B. Morrison, Lerner Family Association Dean for Public Interest & Public Service at George Washington University Law School

    The Supreme Court today by a vote of 5-3 upheld most of the rulings of the lower federal courts that Arizona’s efforts to supplement federal enforcement of federal immigration law was preempted by that law. Justice Kagan did not participate because she had worked on the case when she was Solicitor General. The ruling constituted a major victory for the Obama administration in a case that was vitally important to the Hispanic community.

    Others will join the debate on whether the majority or the dissent was correct. I am writing to explore how progressives and others who support the American Constitution Society should react to this decision and how it compares to other decisions in which preemption was invoked to set aside other state laws that we might favor. My thesis is that, for most people, where you stand on preemption is where you sit on the substantive laws being preempted. A few examples will illustrate the point, after which I will try to put the issue in some perspective.

    The proposition that federal law trumps state law if there is a conflict is not in dispute. The problem arises because Congress is often not clear, or does not anticipate what state laws might look like in a field where Congress has legislated. The Arizona case can fairly be described that way.  Nonetheless, the Supreme Court has also been clear that state laws that stand as obstacles to the objectives or means used in federal laws are also preempted, which was the claim made here when the United States sued over the Arizona law that avowedly sought to “discourage and deter unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Opponents of the Arizona law saw it as an effort to harass immigrants as well as other Hispanics, while proponents claimed that it was designed to take up the slack in federal enforcement. Progressives generally favored the preemption side, while conservatives (including the three dissenting Justices, who did not include the Chief Justice) supported Arizona. For States, being opposed to federal preemption is their almost universal response, although they often take a different position when the issue is whether state law preempts actions by counties or towns. The United States is a little less monolithic, but tends to favor preemption in many if not most cases.

  • January 4, 2012

    by Nicole Flatow

    Several hours after news broke that President Obama would appoint Richard Cordray to head the Consumer Financial Protection Bureau, Obama announced he would also fill all three empty slots on the National Labor Relations Board.

    The move reaffirms President Obama’s stance that he is able to make recess appointments while Congress is on winter break, even as Senate Republicans attempt to block them by holding “pro forma” sessions every few days.

    In making the appointments, Obama has prevented the NLRB from coming to a standstill. After board member Craig Becker’s term expired yesterday, the agency was left without the required three members to legally operate, as determined by a Supreme Court decision last year.

    In spite of the approaching expiration of Becker’s term, all 47 Senate Republicans signed a letter to President Obama last month asking him to refrain from making recess appointments to the NLRB, and threatening to continue blocking other nominations, according to Politico.

    The agency, which oversees activity between unions and employers, was the object of significant conservative fury in 2011. The Huffington Post summarizes: