Who decides things in Washington matters
The separation of powers doctrine works, except when some people in power decide they don't want to let it
If you care about government getting its work done, you may want to hit the road in search of a lately well-known RV. (Photo by Kai Gradert on Unsplash)
The other day, I participated in a seminar on “Why the Separation of Powers Matters,” a topic that you just know is important but, given how short life surely is, an event you might justifiably find an excuse to avoid. I mean, it’s nice to be invited places, but why don’t I ever get asked to talk about something more fun, like Taylor Swift’s dance moves, which I might enjoy researching, or — if I must always deal with serious matters — Clarence Thomas’s choice of recreational vehicles? I know something about RVs, having been a child Airstreamer. But that’s for another column.
It turns out, anyway, that there’s a lot to be said about the way our Constitution divides power among Congress and the President and the Supreme Court, and the way those three branches of government have over time grabbed or dodged authority. More on that in a moment — because things aren’t going swimmingly in Washington, you know — but the fundamentals are what you learned in school: Congress passes laws, the executive branch carries out those laws and the courts settle disputes over how the laws are being enforced. Beyond that, it’s complex, because things can get done by other means, so that if one branch can’t exercise authority, another can. Which is why we had a whole seminar on the topic, that only left the audience aching for more, I’m pretty sure.
Take foreign affairs, for example. It’s a rare Supreme Court ruling that will affect diplomatic relations, but the President can operate quickly and effectively in the foreign arena. On the other hand, Congress is required to appropriate funds, presumably since it’s best equipped to know where government ought to be spending citizens’ tax dollars by virtue of the proximity of members of Congress to the people who directly elect them. And Supreme Court justices, with their lifetime tenure, can act without regard for the kind of partisan pressure that turns the backbones of Congress members to jelly. It’s a swell system, in theory, and it works, usually.
Except that sometimes one branch scampers away from its authority. Most notably, members of Congress have for years avoided their constitutional prerogative to declare war, leaving controversial decisions on military action to the President, the better for them to take potshots from the politically safer zone of Capitol Hill. More broadly, some folks inside government lately seem hellbent on disabling the government, as though they want to stop any branch from operating very well. They’ve been pretty effective, it seems, because the works of Washington are fairly gummed up just now. It leaves you with a sad sense that America could be doing so much better if these capable anti-governmentalists set out to do something positive rather than just raise a ruckus.
Which is where I came down during that awesome seminar: The separation of powers is, in fact, essential to maintain and to nourish, because in some areas, key players are clearly less interested in making government work than in making a point — or, you might say, making spectacles of themselves.
Top marks in failure to function obviously go to the House of Representatives’ Republican majority, which has given up actually doing the people’s business while its radical right-wing members wrestle in the dirty backwash of Donald Trump’s sloppy populism. Who will make the most outrageous claim today that might win the attention of Sean Hannity or Steve Bannon? You can almost imagine the MAGA majority members riffing ideas with their staffers: How can we next throw a wrench in the gears of the government (that we’ve been entrusted with leading)?
In their most momentous act since their three weeks fighting over the speakership, which shut down all other legislative work, House Republicans are holding up aid to Israel by tying it to an unrelated scheme to protect high-income taxpayers from IRS audits. The IRS commissioner says that disabling the audits could sap almost $90 billion in tax revenue. It’s an odd political calculation by new House Speaker Mike Johnson, who hails from the Republican far right, because whatever popularity his colleagues may draw from beating up the tax collectors, they’re risking by (a.) acting to worsen the deficit and (b.) turning a cold shoulder to Israel, a nation essential to American security interests. They’re also refusing to provide more funds to help Ukraine push back Russian invaders and to counter Chinese influence in the Pacific. Because of our Constitutional system, the president can’t send those funds to where they’re needed without congressional action.1
Speaking of funding, remember that appropriations must begin in the House, under that separation of powers notion, and the MAGA majority just voted to cut the EPA’s budget by nearly 40 percent and take away 13 percent of the funding for the National Park Service. The Senate’s counterpart bill, which has strong bipartisan support, calls for $7 billion more in funding for those programs. So the House bill is not serious legislation; it’s about making a point, not making government work. That characterizes much of what’s happening on the House side of the Capitol these days.2
Over on the other side of the Rotunda, meanwhile, the Senate is tied up in knots by the former Auburn football coach, Tommy Tuberville, who has distinguished himself during his freshman year in the Senate by singlehandedly blocking hundreds of military promotions, which the Pentagon says imperils national security at a time of world unrest. (Current Rolling Stone headline, FYI: “Is Tommy Tuberville the Most Ignorant Man in D.C.?” Answer: Yes, but it’s kind of a trick question, because Marjorie Taylor Greene and Lauren Boebert are not men.) Because of the separation of powers established by our Constitution, the promotion of military officers requires Senate approval — which arcane Senate rules allow a single (ignorant) senator to block. It’s a shame the Constitution doesn’t provide for red-shirting a senator.
Of course, you might view the events of Jan 6, 2021, as the most striking example of the separation of power in our history: One branch of government withstood a violent assault that was launched by another branch. With his executive authority about to be constitutionally withdrawn by legislative action, Donald Trump energized an insurrection, which Congress ultimately ignored. Except, of course, for eight senators and 139 House members, who cited spurious allegations of voter fraud in casting their votes against certifying the voters’ choice. One of those anti-democracy votes came from the Christian nationalist who is now the House Speaker, Mike Johnson.
So it's good that not everything the federal government does requires congressional action, right? Indeed, the executive branch can act on its own in many instances, though the party that doesn’t control the White House always wants to push back that power. You may recall that Fox News, the Republican party’s propaganda arm, was feverish during Barack Obama’s terms about presidential executive power, an ailment it excised during the tenure of Donald Trump, who signed more executive orders per year than any president since Jimmy Carter.3 If this leads you to conclude that Fox News is more partisan than principled, I’d agree, but caution that this, like the Airstream reference above, is a topic for another column.
Just now, Republicans are upset with President Biden’s executive orders, which he used for such purposes as reversing Donald Trump’s ban on transgender Americans joining the military and on travel from several mostly Muslim countries, and cancelling the Keystone XL pipeline. Biden has issued executive orders at a rate of 44 per year during his tenure, which is right at the median of the presidents who have held office since 1980. Even without so-called “XO’s” from presidents, countless actions by executive-branch agencies carry the force of law without an action by Congress. You may welcome that, considering the current incapacity of the legislative branch, or you may find it troubling, if you’re dubious of presidential authority.
That said, the executive branch is running remarkably smoothly just now, though that’s not reflected in the popularity of Joe Biden with voters. But the obvious competence of the Biden operation, a blessed change from the chaos of the Trump administration, is a reminder of why more power has shifted to the executive branch during both Republican and Democratic presidencies in recent decades. Which is where the Supreme Court is stepping in.
Led by the conservative majority put in place by Trump and George W. Bush — who, let’s recall, both got to the White House despite losing the popular vote — the high court seems poised to shift more work from the federal agencies to Congress. So if you’re concerned about the environment and climate change, for instance, you’d better set your hopes on legislation, not executive or judicial action. And good luck with that.
Consider some recent cases. In West Virginia v. EPA, the Supreme Court ruled last year that the federal agency does not have the authority to regulate greenhouse gas emissions; in Sackett v. EPA, the justices freed millions of acres of wetlands from federal regulation.4 And now the court seems poised to pull back a lot of the executive branch’s capacity to act. Knowledgable court observers, like the people on that separation of powers panel, note with some concern that the court has agreed to review a case involving a concept known as the “Chevron deference.” It’s complex, but worth understanding, because it’s a principle that the court has embraced for the past four decades that may now disappear.5
Under the Chevron deference, courts have given federal agencies authority to make decisions where Congress hasn’t acted, and where the absence of clear legislation would otherwise leave issues up to the decisions of federal courts. If it casts aside the Chevron deference, the court would, in effect, shift a lot of decision-making from the executive branch to Congress or, more likely — since Congress is so busy not promoting generals and arguing over one-house appropriation bills — to the 850 or so federal judges around the country who would get to decide arcane issues for themselves, case by case.
If this sounds to you like a recipe for a morass of uncertainty, you may want to join the line of people who told pollsters last year that they have no confidence, or not very much, in the Supreme Court — a line that the poll found includes 62 percent of Americans.6 To be sure, that may have a lot to do with the court’s decisions that are contrary to public opinion — like its removal of women’s constitutional right to control their own reproductive decisions — or it may have to do with the dubious ethical standards of some justices.
At which point you may find yourself poking around your nearby WalMart parking lots to see if you can find that fine 40-foot Prevost Mirage XL Marathon RV, which Associate Justice Clarence Thomas bought with a $267,000 “loan” from a pal. If you find the man in the van, you could talk about RV’ing, or you could delve into the ethics of judges. Or you might even want to venture into the topic of the separation of powers, and whether it’s wise to snatch authority away from the branch of government that seems to be doing its job just now. There’s more to be said about that, of course, but that, too, might await another day. I’ve got to get to work on my Taylor Swift research.
This analysis benefits from the analysiss of Senior U.S. District Judge Loretta Preska, at the 2022 Jurist-in-Residence seminar, Nov. 2, 2023, at the College of St. Rose in Albany, N.Y.
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