A Test We Mustn’t Fail*
By Sol W. Sanders
Monday, February 17th, 2014 @ 4:59AM
The United States is going through one of those periodic crises, testing a complex and often sclerotic constitutional system.
An increasingly diminishing presidency has tried to “transform” the society, and particularly its economy, with draconian measures. One at least, Obamacare, rammed through an absent-minded Congress with a temporary majority of the President’s party, has come a cropper.
But behind the immediate problem of whether the Affordable Health Care Act can/should be salvaged or whether it must await repeal by a Republican Congress, and, perhaps, president, after 2016, is a much graver issue. President Barack Obama, despite his experience as a part-time instructor in constitutional law, has run afoul of the principle of separation of powers.
It’s an ancient concept going back to Aristotle in ancient Greece which posited that the best way to avoid repressive government was to a balance its functions among various competing entities, usually the legislative branch to make the laws, the executive branch to enforce them, and an independent judiciary to adjudicate and punish disputes when they arose. Some Western European democracies have rejected this concept, expressed through a system of checks and balances. But more recently, even they have come around to giving their courts a greater role than was traditional in deciding what is inviolable in their unwritten constitutions.
The Founders of the United States, who demonized the British sovereign in their quest for independence, had in fact become what they considered victims of an elected parliament. This phenomenon must have made them even more cognizant of the need to provide not only a defense against authoritarian government in general but against any of its appendages .As the young democracy endured, against all odds, it developed an additional concept of judicial supremacy–the power of the Supreme Court to override even the people’s elected representatives to strike down a law as unconstitutional, that is, in flagrant violation of the basic intent of the Constitution.
That was not specifically written into the Constitution, and, indeed, before the Civil War, the Supreme Court did not invoke it that often. That concept0–contrary to the British tradition from which the U.S. borrowed so much which had parliamentary supremacy, meaning in the end, the parliament could do no wrong–was unique in its time. And the argument has gone on in newer governments modeled in the Anglo-American tradition, for example, in India and Pakistan, and, indeed, increasingly, in our neighbor Canada and Australia which once were closer to the Westminster tradition.
But the separation of powers has taken a beating in the U.S. over the years. Everything from the growing complexity of American life to unprofessional Capitol Hill writing of legislation has fuzzed the issues. To regulate growing and complex industries and parts of the increasing interwoven society, Congress has created semi-judicial, semi-independent bureaucracies which have the power, in reality, to legislate, enforce and adjudicate–and even to punish. In our time, the activities of the Environmental Protection Agency or the National Labor Relations Board, increasingly politicized during a period when the differences between our two major political parties have widened, are flagrant examples.
“The regs,” the instructions on how to implement a law enacted by the Congress, have become if not more important than, often as crucial, in determining the direction new legislation takes as law. That compilation is increasingly in the hands of a permanent and growing class of federal bureaucrats who–at this moment when the question of how large the government should be and how far-reaching its activities–undergird many of the more serious political arguments. Once again, the Founders were prescient: They saw that an interested local populace might twist the national will by maneuvering a central government, and thus sought to isolate the federal apparatus in a castrated federal district with no political rights. Not only has that principle been abandoned in the cause of self-government for the District of Columbia, but the early 19th century when everyone went “home” for most of the year is a distant memory. No “special interest” is stronger than that of Washington’s permanent—and at its upper echelons, a revolving door–bureaucracy.
I wince every time I hear the Congressional Research Service or the Congressional Budget Office described as “nonpartisan.” While that may be true literally, it is a concept more honored in the breach than the observance, to quote The Bard. It would demand more than human failings afford for members of these or any of the other Washington bureaucracies to completely abandon their own prejudices for big government and their advocacy of federal discretion.
In times of crisis, especially when a soured economy underlies all politics as well as the life of every citizen, there is an almost instinctive reach for government intervention. Never mind that the essence of the fabulous American economic history is its freedom for the individual entrepreneur and the absence of the kind of European dirigisme that to a greater or lesser degree has marked the histories of the Continental powers.
President Franklin Delano Roosevelt’s New Deal, with his strange amalgam of advisers spanning the political spectrum from far left to far right, tried to thrust the economy forward with a massive intervention the country had never seen before. One by one, a traditionalist Supreme Court struck them down as contrary to the Constitution. (After all, a Constitutional amendment was necessary to foist the federal income tax on citizens.) FDR’s riposte was to propose remaking the court with new legislation–a stick the legislative branch holds over the judiciary. But his “court packing” proposal outraged the country, even including some of FDR’s most loyal followers, and it was abandoned. Contrary to conventional wisdom, however, FDR’s further ministrations still did not rescue the economy from the Great Depression. That took the unprecedented World War II mobilization that revamped the American economy’s entire nature producing the great postwar prosperity.
Those who lie with statistics tell us that President Obama has not invoked his executive mandate, the authority to use executive powers, more than his immediate predecessors. But the difference lies in quality not quantity: changes of specific deadlines and other requirements of the Affordable Health Care Act is a stretch too far. True, virtually all legislation affords the executive the authority to make discretionary changes in order to more effectively and orderly implement a law. And it is argued by his–and the increasingly fewer diehard supporters of the law–that this is precisely what he has done and that he need not go back to Congress. But the very fact that the law is so controversial–every poll tells us opposition is massive if not in an absolute majority–demands that he do just that in pursuit of representative government. The reason he does not is obvious: a Republican-ruled House of Representatives where the Constitution specifically says the power of the purse resides might very well have taken the opportunity to try, again, to defund the law or at least to hamstring it while a Democratic-led Senate fumed.
Furthermore, the whole constitutional concept of the law has been muddled by Chief Justice John G. Roberts, Jr., joining in a 5-4 decision to rule the law constitutional on the basis of what the Obama Administration called “fines” for its infractions. But Roberts chose to reinterpret the Administration’s brief to the Court calling these penalties “taxes,” and therefore defensible under the taxing authority of the Constitution rather including them under the ever elastic “commerce clause,” which the Administration had argued. One could only assume that the Chief Justice was leaning into the wind in order to maintain some unanimity in the court for what promises to be an avalanche of efforts to test the constitutionality of the Obama Administration’s actions on various fronts in the months and years ahead.
For the Obama Administration’s bending the law has not been confined only to Obamacare. The President and his Attorney General Eric Holder, who one must remind errant analysts is not an independent agent but a part of the executive, have taken it on themselves to decide which part of immigration law on the books they are to enforce. It has reinterpreted legislation to prevent discrimination in voting practices only to cover minorities rather than all voters, a blow at the very essence of elected government and what the civil rights movement was all about. In direct violation of the Constitution, the President has made “interim” appointments while a Democratic-controlled Senate was legally in session.
Thus President Obama’s promise to extend executive privilege to its outer limits threatens to test the whole fabric of the Constitutional process
It is time for a reordering of protocols if not of issues. Even FDR, with his enormous ego, after his ham-fisted effort backfired to ram through his own remedy for what he saw as government gridlock, went for conciliation with his critics. President Bill Clinton in his second term saw he had to cooperate with fiscal conservatives to accomplish his goal of an expanding economy. It would be time for Obama “to reach out” (as that overused current cliché goes) to the opposition. But, for the moment at least, his choice seems to be defiance with his “pen and telephone”–and continued pushing the Constitutional envelope.
It’s a dangerous game and threatens our whole Constitutional system.
* A version of this column will be published here on Monday, February 17, 2014.