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Separation Of Powers (Part Two)

[ Posted Thursday, February 14th, 2013 – 16:28 PST ]

Program Note: One week ago, I ran a column which consisted of a list of five questions. These questions were sent to me by a student working on a writing project. I thought they were good questions, and I wanted to think about them over the weekend before writing my responses. I also thought they were good enough questions that it would be interesting to see what my readers felt about them. So I ran the list as a column.

I got an extraordinary amount of very well-thought-out answers from you folks, some of which I agreed with and some of which I did not. But rather than answer points in the comments, I decided the best way to enter the conversation was to just post my answers, as I sent them off. So here is the second part of last week's column. These are my "separation of powers" answers.

They are written in a slightly different style, because they were really written for an audience of one -- the student who asked me the questions in the first place. And I had to include a note prefacing the third one, because the use of the word "exploiting" can be read in two very different ways.

 

(1.) It has been argued that the president has become too powerful over the years despite the checks carried out by the other branches, do you think that this is indeed the case?

I'm not sure if I'd agree the president has become "too" powerful, but it is an inescapable fact that the power of the presidency has definitely increased over time, specifically in the last three-quarters of a century. Since Franklin D. Roosevelt, the Executive Branch has gained more and more power within the federal government -- this fact cannot be denied.

The United States Constitution is maddeningly vague over where one branch's powers end and where another's begin. This has led to much confusion, and many different power struggles over our entire history. What usually happens is a president (or, occasionally, a Congress) makes what can only be called a "power grab," and the other branches react by fighting to regain lost powers.

While there are "checks and balances" built into the American system, often times what decides the issue is the American public's opinion. If "the people" are with the president as he expands Executive power, then he will likely get away with it no matter how much Congress howls in response. If "the people" are not with the president, however, Congress usually manages to force him to back down in one way or another.

Even the Supreme Court -- supposedly the arbiter of differences of constitutional opinion -- can't always resolve the issues. There is no enforcement mechanism in the Constitution, which means when a president (Andrew Jackson, for instance) decides to ignore a Supreme Court decision, there is nothing really to stop him from doing so -- or, at least, nothing specified in the Constitution itself, which is largely silent on such situations.

The only true check on a president's power is an awfully drastic one: impeachment. Because it is such an extreme reaction, it is only very rarely used -- and, so far, never successfully. Richard Nixon was merely threatened with the possibility of impeachment, and he resigned rather than fight it out. He had lost the public's support by the time he left office, and he knew it. The real check on presidential power is the ballot box. If the president goes too far, the public reacts by electing a leader from another party, and if they're really upset they give the new president a Congress of the same party as well.

All presidents attempt to increase Executive power -- it's almost part of the job description, these days. Congress always fights back, sometimes successfully, sometimes not. But while the presidency has gotten a lot more powerful in modern times, I don't think I would say it has gotten "too" powerful. Sometimes modern presidents need to push the envelope of Executive power, because the Legislative Branch refuses to act. Gridlock in Congress can be so bad that the only way anything can change is if the president goes out on a limb. But, for the most part, if the president goes too far the voters are always ready to rein him back in, in the next election, to show their disapproval for such overreach.

 

(2.) In your opinion, is it fair to say that after the events of 9/11, George W. Bush started to take a firmer stand in terms of his role as Commander-in-Chief?

While I would largely agree with this statement, I would compose the thought somewhat differently. George W. Bush became more serious as a president after 9/11, because he was dealing with a very serious issue. Previous to this point, he hadn't done much as Commander-in-Chief at all, so it's hard to compare before and after, realistically.

I would also point out, after answering your first question, that President Bush (and Vice President Cheney) certainly did take a much more expansive view of Executive power after 9/11. They even had a term for it -- the "unitary executive." This meant, to them, that they could do what they wanted as the Executive Branch with little or no oversight from Congress (or anyone else). The term is almost synonymous with "monarchy," when you get right down to it.

While the public did let Bush and Cheney get away with such a power grab for years, and while they were indeed re-elected, by their second term fatigue had set in with the American public on the ongoing wars, and there was a strong pushback against the things Bush and Cheney had been doing (especially on the question of "enhanced interrogation techniques," or "torture"). Bush charted some of the lowest public approval ratings of any modern president during his second term, dropping below 30 percent job approval in the polling -- which is pretty dismal territory for public opinion.

However, when President Obama was elected, although he did shift dramatically on quite a few Executive powers Bush had claimed, he also continued a number of others (such as drone attacks), mostly having to do with "national security." This is the way Executive powers usually are expanded -- one president overreaches, the next president dials it back a bit, but the net result is an overall increase in presidential power. Which is exactly what has happened during the Bush and Obama years.

 

(3.) In your opinion, should a president indeed be given the sole authority to deploy troops and allow for military action without consent from Congress?

I'm going to have to weasel on this one and answer: "yes, and no."

The United States has not formally declared war on any country since World War II. Every conflict we've been involved in since then has not officially been a "war" -- Korea, Vietnam, Iraq, and all the minor conflicts America has been in have never had a "declaration of war" from Congress. Even after 9/11, the United States did not formally declare war on Afghanistan.

The framers of the Constitution thought that giving the president the sole power to make war was too expansive, and was too dangerous to hand to one individual. They feared it could lead to tyranny. Congress, they reasoned, should be the ones to do so.

However, while formal declarations of war haven't happened in the past six or seven decades, Congress has indeed had a say in the past forty years about whether to go to war or not. After 9/11, Congress voted on an "Authorization for Use of Military Force" against Iraq, for instance. This compromise came as a direct result of Congress passing -- over President Nixon's veto -- the War Powers Resolution of 1973, in reaction to Vietnam. This law attempts to chart some middle ground between an all-out war (World War II, for instance) and a conflict that doesn't quite rise to that level.

The War Powers Resolution (sometimes called the "War Powers Act") says that if the president orders troops into any hostile country, Congress gets a say in the matter within a period of 60 days. This introduces some flexibility for the president, but still retains the ultimate war-making powers for Congress... at least, in theory.

Since modern warfare can develop so fast, the president -- in his constitutional role as Commander-in-Chief -- is able to react quickly and dispatch American troops anywhere on the globe at a moment's notice. But if the problem isn't solved militarily inside of two months, the Congress must vote on whether to continue it or not.

As I said, this was supposed to be a compromise, allowing for quick reaction time but still allowing Congress to stop an unpopular military action within a relatively short period. It was supposed to balance the power to "declare war" with the power to "command troops in the field," and share this power somewhat between the Legislative and Executive Branches.

The problem is, the War Powers Resolution itself may be unconstitutional. Congress may have overstepped its bounds by passing it. Because it deals with the balance of powers between the branches -- and because it was passed by one branch alone -- the entire thing may be fundamentally unconstitutional.

Since it passed, neither Congress nor any president has decided to find this out for certain, though. Neither branch really wants to turn to the Judicial Branch for a decision whether this is the right way to go to war or not. This is because neither side is confident that they'll win a Supreme Court decision on the matter. So nobody really knows whether the War Powers Resolution will eventually get thrown out by the courts or not, because until now neither side has brought a case before the courts to test the law. So the law exists in a sort of legal limbo.

The result is much the same as what happens with many power struggles between the branches. A president will "cheat" a little on the War Powers reporting requirements to Congress, or a Congress will complain that they are being overlooked -- but only to make a political point. Since neither side is willing to push the issue before the courts, it remains questionable which side will ultimately be judged right.

Personally, I feel that the War Powers Resolution is a fairly workable middle ground. If the power to declare war were left solely in Congress' hands, the delays involved in getting action might prove to be disastrous in modern warfare. A lot of damage could be done before the legal paperwork was complete, to put this another way. However, giving all power -- without restriction -- to send troops into combat anywhere and everywhere on the globe to a single man also seems too extreme. The two-month deadline for Congress to get involved means that if trouble spots flare up where the president determines American troops are worth sacrificing, then the president can indeed act quickly and decisively, but if the situation isn't cleared up inside of 60 days, then the country deserves a wider debate about precisely what we're doing and what we expect to achieve.

The perfect recent example seems to be Libya. Our involvement was very controversial, but it happened so quickly that Congressional oversight wasn't really necessary. As opposed to the wars in Iraq and Afghanistan, which went on so long Congress needed to be involved.

So my answer to your question is that, yes, the president should be able to deploy troops and start a military action, but that if it goes on for very long then Congress should definitely have a say in the matter going forward -- and, importantly, to be able to override the president and force the troops to come home. A rather precarious balance of power, but one that seems to work well enough. At least until one side or the other forces the issue before the Supreme Court.

 

(4.) Do you think that there is the possibility of President Obama exploiting his use of presidential powers more in his second term?

[Note: "Exploiting" is kind of a loaded word, with some very negative connotations. I'm going to assume (for the sake of answering the question) that it was meant it in the "expanding" sense of the term, and not in the "taking unfair advantage" sense. If I'm wrong, I will change my answer accordingly.]

Yes, I do think President Obama is going to expand his use of presidential powers more in his second term. The reasons are political. While (as I mentioned above) Obama has consolidated much of the Executive power expansion undertaken by George W. Bush -- especially in the "national security" arena -- I believe that Obama will find a lot more ways to expand the power of his office in the next four years. I believe he will do so in the next two years, in fact.

The American governmental system can at times lead to "divided government" where one or both houses of Congress is held by an opposing party to the president's. While Obama had majorities in both houses for his first two years in office, since the 2010 elections he has had to deal with a Republican-led House of Representatives.

Initially, Obama tried working with the House Republicans in an effort to strike deals and reach legislative compromises. He largely failed in this effort. Which led to two years when not much of anything got done -- the 112th Congress was one of the least productive in the last century. Time and again, the Speaker of the House simply could not get his own party to go along with any deal struck with Obama.

This led, during the 2012 presidential election campaign, to Obama deciding he had had enough of the House's obstructionism, and he began to explore what he could get done on his own by way of "executive orders" and other actions he could take solely within the Executive Branch. The best example of this is when he announced changes in immigration policy to give relief to those children who would have been covered under the "D.R.E.A.M. Act" (the so-called "Dreamers"). Because Congress couldn't manage to pass the legislation, Obama did what he could so that the Dreamers could avoid living in constant fear of being deported, and could thus go to college and begin their lives as adults. This action wasn't perfect, and was of a temporary nature, but Obama managed to get at least "half a loaf" on his own, without waiting for Congress.

It is no secret in Washington that Obama is now looking for many other ways he can act in such a fashion. After the 2012 election, Republicans in the House lost some of their numbers and have a smaller majority -- but they still hold control of the chamber. This means Obama has to deal with the same obstructionism problem he's had for the past two years. So he is going to be looking for any way possible to move his agenda by bypassing Congress entirely. By doing so, it's almost guaranteed he's going to push the envelope of Executive powers, and will likely face a backlash at some point from Republicans for some action he has taken without Congress' approval. As I said, he's making no secret of this, and even directly threatened to do so in his recent "State Of The Union" speech, on climate change.

So, yes, Obama will indeed seek to expand Executive powers in his second term, and quite likely very soon. This isn't all that out of the ordinary, however, as almost all presidents do so at some point. The real political test for Obama will be whether the public supports the president's actions, or whether they agree with the Republican backlash to such actions. If there is significant public outcry, then Obama will be a lot more hesitant to push such boundaries on other issues.

 

(5.) The separation of powers gives Congress the authority to overturn a presidential veto. What is your opinion in terms of allowing the president the authority of the veto in the first place?

This question was hotly debated when the framers of the Constitution were drafting the document. Many felt that giving the Executive a veto gave him "king-like" powers over the Legislative Branch. This is the major reason why Congress is also allowed to override a presidential veto, with an overwhelming vote of two-thirds. If two-thirds of Congress agrees to a new law, then even the president's veto power can't stand in the way.

This seems an acceptable compromise to me. The only laws that are ever passed by such votes (overturning vetoes) fall into two categories: laws that have overwhelming public support but which the president doesn't agree with, and laws that in some way restrict the power of the president himself (as with the War Powers Resolution). The second category always has the remedy of the courts, if Congress tries to grab too much power for itself. But the first category seems eminently reasonable, at least to me.

Our first six presidents were very timid in their use of the veto. They only rarely used it, and when they did so they did so acting as their own "Supreme Court," in a way -- they only dared to veto bills which they felt were flatly unconstitutional to begin with. They would issue a veto message which laid out their reasoning, and send it back to Congress.

It wasn't until Andrew Jackson came along that a president dared to veto a measure simply because he didn't agree with it politically. At the time, this was seen as a radical power grab, and it was denounced as dangerous usurpation of power by Jackson's opponents (who began calling him "King Andrew I"). Jackson was one of the boldest presidents in all American history (along with Abraham Lincoln, Franklin Roosevelt, and a few others) when it came to creating new Executive powers, in fact. Jackson entered into power struggles with both the Supreme Court and Congress, most of which he won.

To answer your question, though, I do think the presidential veto is an important part of the "checks and balances" system. Without it, America could quite easily be subjected to what Alexis de Tocqueville called "the tyranny of the majority." If Congress could pass measures by a slim majority without any sort of check on their actions, some awfully bad laws would surely get passed. Giving the president the ability to at least attempt to stop this process is an important part of the American governmental system. If the president goes too far in the use of this power, Congress itself has the power to overrule him (or her), although they cannot do so unless a huge majority in both houses agree.

Like all the junction points between the different branches' powers, some sort of compromise seems necessary in the legislative process. While the way the presidential veto is set up is not perfect, it has served the country pretty well throughout its history, and only very rarely has it ever been truly abused. Like any good compromise, it seems to work pretty well -- and that is good enough for me.

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

8 Comments on “Separation Of Powers (Part Two)”

  1. [1] 
    LewDan wrote:

    Seconded.

    Though I like to think of the Congress as having the power to declare war(n)while the President gets to order armed forces to war(v). They are not interdependent.

    The Constitution charges the President with defending the nation, not making war. And, as we see today, national defense rarely has to mean war.

  2. [2] 
    dsws wrote:

    ... specifically in the last three-quarters of a century

    I see you get to "King Andrew" later on in the column, though. But I'm surprised you didn't get to the role of the executive branch in executing the Alien and Sedition acts.

    The only true check on a president's power is an awfully drastic one: impeachment.

    There are political checks. In a first term, there are his (or eventually her) prospects of re-election. At any time, there are his party's prospects in the next and subsequent elections.

    There are statutory checks. If a president acts pursuant to a law, that law can be changed so that further such action is no longer authorized.

    laws that in some way restrict the power of the president himself (as with the War Powers Resolution)

    The War Powers Resolution doesn't directly restrict the power of the president. In its preamble, or its "whereas" section, or its obiter dicta -- whatever you want to call them -- it states Congress's opinion about what restrictions the Constitution places on presidential power. But that declaratory part does not itself restrict anything. There is no moot-judicial power in our system: neither Congress nor any court can make case law by declaration.

    In its actual action, however, the War Powers Act directs the president to report certain information to Congress at certain times, and to consult with Congress, but that doesn't limit his power. It also establishes some rules of each chamber in handling such consultation. But for its main effect, it purports to restrict presidential power indirectly. Specifically, it purports to restrict Congress's own power to authorize the use of force: it claims to invalidate all future Congressional authorizations unless they meet its standard of specificity. Of course, it can't actually do so. Congress doesn't get to grant or deny powers to Congress. It takes a constitutional amendment to do that.

  3. [3] 
    akadjian wrote:

    Personally, I feel that the War Powers Resolution is a fairly workable middle ground.

    I do too. This seems like a great example of the way balanced government is supposed to work.

    Ideally, it creates a balance between being able to respond quickly and limiting long drawn out mistake quagmires.

    The trouble is that this act has simply been ignored. President's have found it far too easy to simply claim that any action is not a war.

    Even though the 'action' may drag out for 8 years (or more).

    -David

  4. [4] 
    dsws wrote:

    It's not presidents who have ignored the War Powers Act. Congress has given ridiculously broad authorization for the use of force, and presidents have used it.

  5. [5] 
    LewDan wrote:

    Its also absurd to pretend that conflicts that drag out for years are not wars authorized by Congress, or wars of which Congress was unaware because the President didn't notify Congress.

    There has never been a demonstrated need for the War Powers Act. Its about politics not Presidential overreach and oversight.

  6. [6] 
    Michale wrote:

    The trouble is that this act has simply been ignored. President's have found it far too easy to simply claim that any action is not a war.

    Actually, it's only been ignored once as best I can recall...

    By our current POTUS.

    While previous presidents have always claimed it is unconstitutional, they have always acceded to the reporting requirement of the act...

    130 Reports were made to Congress in compliance with the War Powers Act since it's inception in 1973.

    Only one POTUS has notified Congress that he is not under the constraints of the War Powers Act.

    Barack Hussein Obama

    Michale

  7. [7] 
    Chris Weigant wrote:

    dsws [2] -

    It would have been more correct of me to have said "the only true constitutional check". There is no other real check Congress has to presidential overreach (unless you count the "purse strings").

    Speaking of Andy Jackson, this was his main argument against the Senate "censuring" him: the Constitution doesn't allow it, you are in essence impeaching me without giving me the ability to respond." They couldn't impeach him, because the Jacksonians held the House.

    But you're right, there are other ways it can blow back on a president, politically and otherwise. When FDR tried court-packing (something which the Constitution was also silent on... no absolute number exists for SCOTUS), there were howls of outrage. But also, SCOTUS realized it was going too far in striking down all of the New Deal, and it significantly backed off as a result. So, FDR didn't get his larger court, but he did (as a result of a power grab) show the court that they needed to heed public opinion, as well.

    Michale -

    Clinton bent the provisions in a large way, too. Bosnia? One of those ex-Yogoslav trouble spots in the 90s, I'd have to look it up.

    -CW

  8. [8] 
    Michale wrote:

    Clinton bent the provisions in a large way, too. Bosnia? One of those ex-Yogoslav trouble spots in the 90s, I'd have to look it up.

    And again, in Kosovo.. But no president has completely ignored it or stated it doesn't apply, as Obama has done..

    Another example of the extended power of the presidency...

    No Republican POTUS would have been able to get away with that, eh? :D

    Michale

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