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The growing constitutional crisis

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“A growing crisis in our constitutional system threatens to fundamentally alter the balance of powers — and accountability — within our government,” writes conservative Senator Ron Johnson (Republican, Wisconsin) and liberal Professor Jonathan Turley, from George Washington University in a June 27, 2014 Washington Post column.

No one can predict with certainty what will follow the Obama administration. The only thing we know is that a new president will be elected in 2016 and congressional majorities will continue to shift. That uncertainty offers a window of opportunity for members of both parties, academics and others to come together to focus on the separation of powers for decades to come.”

The Senator and the Professor, both believe that the expansion of powers of the president, “and the emergence of what is essentially a fourth branch of government — a vast network of federal agencies with expanded legislative and judicial power,” have led to a “dramatically reduced ability (of Congress) to actively monitor, let alone influence, agency actions.” Though the authors of this column do list some of the specific violations that the current president has made against what should be his constitutional limits, they also attempt to suggest that all parties concerned are, at least, partly to blame. They blame the courts for their refusal to review constitutional disputes, an abdication of their responsibility that has allowed some partisans the ability to claim that this argument is nothing more than a political battle, and they lay some of the blame at the feet of Congress for its passivity in allowing its power to be usurped.

As professor Turley has repeatedly stated on various CNN, Fox News, and MSNBC programs:

I happen to agree with the president on many of his priorities and policies, but as I testified in Congress, I think that he has crossed the constitutional line.”{1}

If President Barack Obama were seated before Jonathon Turley, in a debate on the limits of his constitutional authority, Obama would say that he has been forced to act in such a manner, because Congress does nothing. He would say, “If they won’t act, I will,” as he has said innumerable times throughout his presidency to pass aspects of his agenda. He would say that most of Congress’s agenda involves, “Blocking me, and calling me names.” He would say, “If they would act with me, instead of against me, I would be happy to share the credit, but they don’t do anything.”

Jonathon Turley would then reply:

There’s no license for going it alone in our system, and what he’s done, is very problematic. He has shifted $454 million of the ACA (Affordable Care Act, Obamacare) from appropriated purpose to another purpose. He’s told agencies not to enforce some laws, like immigration laws. He has effectively rewritten laws through the active interpretation that I find very problematic. While I happen to agree with him, I voted for him, I think this is a problem.”{1}

Johnson and Turley write that while this constitutional crisis may have reached a precipice during President Barack Obama’s tenure, it by no means began with him:

Presidents have persistently expanded their authority with considerable success. Congress has been largely passive or, worse, complicit in the draining of legislative authority. Judges have adopted doctrines of avoidance that have removed the courts from important conflicts between the branches. Now is the time for members of Congress and the judiciary to affirm their oaths to “support and defend the Constitution” and to work to re-establish our delicate constitutional balance.”

This idea that the current argument is nothing more than politics –a statement that, again, has not been thwarted by judicial review– has been floated by the president, and a number of Democrats, in Congress and the Senate. Johnson and Turley agree, in some ways. They write that those Republicans now angry about Obama’s abuses of power, were largely silent when former President Bush violated these separations of power while in office. They write that if Republicans are successful in diminishing President Obama’s power, it will anger Democrats, but if they do it right, they will probably be just as angry by the Constitutional limits they run into if Republicans ever assume the executive seat and Democrats assume a majority of the legislative ones. But, they write, “We need to look beyond this administration —and ourselves— to act not like politicians but the statesmen that the framers hoped we could be”{2} when they set this government up with a Constitutional, division of power framework up.

Liberal columnist Kirsten Powers agrees, in part, saying, and I paraphrase, “As long as there is a universal precedent set, and the next Republican president is as constrained by these Constitutional limits, as Obama would be, then I would be all for it.” She said this in reference to Speaker of the House John Boehner’s (Republican, Ohio) threat to sue the president over his violations.

George Will’s June 20, 1014 column, for the Washington Post, states that there is method of achieving this if Congress wants to pursue such actions through the courts. The list he provides comes from the findings of David Rivkin a Washington lawyer, and Elizabeth Price Foley of Florida International University.

  1. That a majority of one congressional chamber explicitly authorizes the lawsuit, thereby affirming an institutional injury to Congress, as opposed to satisfying one legislator’s personal grievance.
  2. That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff.
  3. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law
  4. And that the injury amounts to nullification of Congress’s power.{3}

The last point would be the most crucial for Congress to prove if they were to submit a complaint of this variety, pursuant to judicial review. For any judge attempting to display dispassionate objectivity would require Congress prove that this particular suit involves more than a simple political power grab before they accepted the case. The reason that the judiciary has been so hesitant to involve itself in such cases may be that the Congress has never been able to prove that it only seeks its Constitutionally protected powers, and nothing more. Congress would also have the burden of proving that they do not seek more power in this particular session, or against a specific piece of legislation that it disapproves of, and that their primary concern is with setting a precedent for all presidents and sessions of Congress to abide by. If Congress were able to accomplish this, they would be creating a suit that pitted the executive branch against the Constitution.

The question that liberals may ask of those Republicans that favor Congress’s current threat to sue the president over executive overreach is why are Republicans now turning to judges? I thought that Republicans, in general, and conservatives, in particular, abhorred judicial activism? The answer to that question is that one of the primary duties of the judicial branch of the federal government is to act as a check on the other branches’ claims to power. If one branch acts in a manner that displays the fact that these checks and balances aren’t being maintained, it is the responsibility of one branch to turn to another for dispassionate, objective check on the balance.

Congress does have the power to censure, and impeach, a sitting president, for such violations, but, again, such an act could be perceived as Congress acting on its own behalf. If Congress were forced to resort to this impeachment option too often, it would render it meaningless, and our nation’s history could devolve into the legislative body impeaching the president anytime they held the legislative branch, and the other party was in control of the executive. Thus, rendering the impeachment of the president a biannual event. These bi-annual impeachments would also only punish the current violator without setting a precedent for how the powers should be divided among the branches. For these reasons, and many political reasons, Congress has now deemed it a viable option to take a constitutional challenge of the powers of the executive branch to the other, judicial branch of government for review.

Another question that a liberal might ask, in regards to the separation of powers, is: “If you Republicans now have what you call a dispassionate and objective concern for the separation of powers, where were you when Bush was going about violating his constitutional authority when it came to the war on terror?” The answer is that during the Bush administration, Republican citizens believed that his anti-terrorism acts were similar to Abraham Lincoln’s suspension of habeas corpus during the Civil War when he stated that “The Constitution is not a suicide pact.”

We believed, at the time, that the Constitutional restrictions on his power to protect the American public against future acts of terror was, in some ways, too cumbersome, so we turned a blind eye. In support of this position, I would also submit that more of Bush’s acts received congressional support, and survived judicial review, than his detractors would care to admit. In doing so, however, I am also forced to admit that some did not. The reason that Republican citizens turned a blind eye to those that did not is because we believed Bush’s goals were noble, and that liberals were naïve in their belief that this unorganized force, called terrorism, could be contained by conventional means. In doing so, we allowed Bush to declare those times an emergency that could only be properly dealt with through extreme measures that we all believed were temporary.

Most Republicans now see the errors of the emergency precedent that Bush set, and Obama followed with his former chief of staff’s credo “Never let a serious crisis go to waste”. We could say that one of the rails Obama rode to victory in 2008 was his denunciation of Bush’s "unconstitutional presidency", but in the spirit of dispassionate objectivity we’ll paraphrase Professor Turley and say that even though we agreed with many of the measures Bush put forth, we now see that there will always be emergencies, and serious crises that this nation will face. We will also now agree with the oft-repeated liberal phrase of the time, that no force could do more damage to this country than that which is self-inflicted, and that if we can all agree to set our partisanship aside during this window of opportunity we have in which there are no emergencies, or serious crises, members of both parties, academics, and all interested parties should come together and define the separation of powers for decades to come.

{1}http://www.realclearpolitics.com/video/2014/06/25/jonathan_turley_obama_has_effectively_rewritten_laws_he_has_crossed_the_constitutional_line.html
{2}http://www.washingtonpost.com/opinions/restore-balancing-among-the-branches-of-government-in-washington/2014/06/27/81440022-f49d-11e3-b633-0de077c9f768_story.html
{3}http://www.washingtonpost.com/opinions/george-f-will-stopping-a-lawless-president/2014/06/20/377c4d6e-f7e5-11e3-a3a5-42be35962a52_story.html

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