The Non-Separation of Powers: Will the
Real Legislative Branch Please Stand Up?
As children in America, we are taught that one of the grand aspects of our Constitution is a little thing called separation of powers. The idea behind separation of powers is that no one person or group should have sufficient authority to make sweeping changes entirely by itself. This plays into the all-important idea of checks and balances; in order for a balance to be effective it must be separated from what it opposes. Therefore, the Constitution of the United States splits up the three major functions of federal government into three separate branches: the legislative (Congress), the executive (the President), and judicial (headed by the Supreme Court).
Unfortunately, we have seen this delicate and all-important balance all but obliterated in the past 50 years. In practical terms, all three branches of government now exercise the powers and initiatives of a legislature. More disturbingly, two of those branches have neither the checks nor the balances designed to keep Congress in line. As such, I have no doubt that we have set the stage for some truly outrageous crimes against the Constitution and American liberty over the next four years.
The Founding Fathers knew that the most important of the branches of government—at least in terms of sheer creative power—was the Congress. Their concern for the massive power of the legislative branch can be seen in the sheer number of checks and balances they originally imposed upon it. Not only did a bill need to pass both houses of Congress (each of which originally represented a very different, competing segment of the population), but it must also be signed into law by the president. If the law passed the president, it could still be neutralized by the Supreme Court through judicial review. The people themselves exercised the ultimate power in their ability to exert influence on their representatives, and especially to vote their decision-makers out of office. In fact, initially congressional representatives were the only federal government officials for whom the average person directly voted (Senators came later, and the people still do not vote directly for president due to the Electoral College). This illustrates how important the writers of the Constitution believed this branch to be; it was the branch they left closest to the people.
Gaining control of the legislature has always been a prerequisite for any group intending to attain real power in the United States. Unfortunately for the power-hungry, it's an inherently difficult thing to organize a practical takeover of a group made up of representatives of states spread out over literally half the continent. No matter what the situation, there always seems to be a stubborn minority opposition that is able to mount a somewhat effective resistance.
Instead, various groups have historically found ways to accomplish their goals through the other branches of government. In allowing the continued abuse of position, Americans have destroyed the balance of power by bestowing legislative prerogatives on both the judicial and the executive branches.
While Alexander Hamilton called the Supreme Court the "weakest branch” of government and argued that it could "ordain nothing" as its "functions are not active but deliberative," we find that over the past 50 years the Supreme Court has made a profitable business of "ordaining" quite a bit. Anyone acquainted with politics and the culture wars will likely be able to think of any number of examples of legislative usurpation by the Supreme Court from Roe v. Wade to attacks on the Pledge of Allegiance to the promotion of homosexual marriage to the outright banning of religious freedoms. The pattern is clear. The court no longer simply stops at "deliberation," but rather it delves joyously into creating and prescribing law.
The office of the president was designed to be only somewhat more influential than the Court. While many people think of the President as the most powerful office of government, it was not intended to exercise the power it does today. The president was to execute the laws, but he did not write them, and he could not change them once they had passed. Congress embodied the initiative for creative control, and had to determine what the laws were. The president merely put them into action.
Today, the Supreme Court at least has to wait until an issue is brought to it to give a ruling, the president has been under no such limitations. As far back as JFK, the "executive orders" (perhaps "executive decrees" would be a more accurate description) have flowed out of the White House with a frequency that would make any dictator proud. As time progressed, these decrees have become more and more blatant and have since dropped all but the pretense of real constitutionality. Through them, the president has the ability to create law—to reign—with the best of them. So, we should not be surprised to see the Obama transition team refer to the beginning of the new president's "rule" and to note that he will do so through executive decree. The American system is currently set up to allow him to do precisely that.
Of course, we cannot blame Obama for this. He is simply stepping in to an office offering powers tailor-made to a radical leftist who wants to force change from the top down. George W. Bush exercised his muscles as a presidential legislator as well. While the ends may have been justified at times (i.e., preventing Americans’ dollars from supporting causes that they believed were immoral and wrong—abortions, cloning, and embryonic stem cell research), the means have done nothing more than set the stage for the constitutional and perhaps literal atrocity that will likely occur over the next four years. If Bush could legislate through executive order, then why not Obama? I've seen no evidence to suggest that McCain would've been any different. This is precisely the situation that the separation of powers was set up to avoid.
The most unsettling part about this that while the Congress still has at least a few checks and balances intact, there are no practical checks and balances on legislation that comes from the bench or from the Oval Office. Conservatives can no more stop Obama from implementing an immoral leftist agenda—which he has already promised to do—than Democrats could prevent Bush from setting a few things right. Nazi Germany, Stalinist Russia, and Maoist China should have provided far more than sufficient examples of the dangers of unbridled power in the hands of the Socialist left. Still, the ultimate problem isn't Obama. While he and his radical supporters are positioned to do tremendous damage, they are merely taking advantage of the American people's ignorance of their own Constitution and their disregard for its safeguards. America's failure to maintain the separation of powers shows that our governmental structure is suffering from a degenerative disease; until that disease is cured our country will always be in danger and our liberties always at risk. |
