This post is the beginning of a series of posts in which the basic principles on which our nation was founded are being or have been betrayed by those elected into power at the various levels of government. Today’s betrayed principle is that of the Separation of Powers. This article will first outline and explain the basic understood meaning of the principle. Then it will address the specific ways this principle has been betrayed by our elected officials. Lastly, it will address the ways we can start being true to this principle again.
The principle of separation of powers is to divide the powers of government and authority under the law into different branches. Each branch is given specific power or authority over the laws. In the U.S. system we have three branches: the legislative branch (Power to make or create the laws i.e. Congress, which is also broken up into two branches in a bicameral of the House of Representatives and Senate), the executive branch (the power to enforce the laws i.e. the President of the United States and the branches executive departments.), and the judicial branch (the power to interpret the laws i.e. the federal and Supreme Court of the United States).
Now to be honest the system in the U.S. does have a certain amount of blended powers. This was one of the major objections of the Anti-Federalists during the ratification of the U.S. Constitution. They saw the blending of powers in several ways. One of major blending of the powers is that of the executive powers between the President and the Senate. The President can not appoint members to the executive departments to without the advice or consent of the U.S. Senate. This was the serve as a check on the President’s authority to appoint who he wants. Another major blending of power was that of the President having veto authority over legislative acts of Congress. Both of these are key examples of the principle of Checks and Balances. The purpose of which was to prevent any of the branches from becoming too powerful. These checks and balances are not isolated within the Constitution but peppered throughout the entire document. Lets deal with the ways our government has betrayed this principle.
Often times when the chief executive of a government signs or authorizes a new law, passed by the legislature, they make written or oral remarks. Usually these are just remarks at how the law was necessary,its intention and/or what it hopes to carry out. These are not the problem. “The more controversial statements involve claims by presidents that they believe some part of the legislation is unconstitutional and therefore they intend to ignore it or to implement it only in ways they believe is constitutional.”
The only choices a president has when they sign a bill into the law is the either enforce it or veto it. It is right there in Article I, Section 3 of the Constitution that he should “faithfully execute the laws of the United States.” Whether or not the President likes the bill or agrees with a past law his oath of office requires him to enforce those laws. To neglect this duty tramples on the judicial branch’s to declare laws unconstitutional. It is also steps on the authority of the legislative branch to make the laws, since those laws often include the specifics of how the law is to be enforced. These signing statements overrides their legislative prerogative and authority.
EXECUTIVE REGULATOR AGENCIES
Did you know that there are hundreds of agencies within the federal government whose sole job is the enforce the laws passed by Congress and signed by the President? Well if you did not know, now, in the word of Bill Nye the Science Guy, “you know.” Congress creates these agencies for the expressed purpose to enforce the laws they were written about. The problem created in the modern-day is that these agencies have been given regulatory control by Congress. This means that these agencies write out the specific relations and penalties for breaking the law. This mean Congress has gotten lazy and refused to write out the specifics of the laws (despite the fact that most laws are hundreds if not thousands of pages long.). Congress has unconstitutionally delegated their legislative authority to many of these agencies, like the FCC or the EPA who both take it upon themselves to change regulations and enforce them. This is a dangerous blending of the executive and legislative powers that is strictly forbidden in the U.S. Constitution. The courts have struck down the regulations of these agencies multiple times for overstepping their authority.
This betrays our principle of separation of powers because it places the power of lawmaking into the hands of executive branch bureaucrats. There is legislative oversight on these regulations but very few actually get dealt with in this manner. Legislators need to make laws and leave the enforcement to the bureaucrats. Giving them the authority to make new regulations allows another place where outside interests can lobby and affect the creation of regulations that could discriminate against one business or group against another.
CZARS AND OTHER SPECIAL ADVISERS
In the last few years, many Presidents have hired and appointed special advisers to oversee special areas of interest. President Obama has had the most in recent history with over forty. The problem comes in that these people have not be approved by the U.S. Senate. I am not even sure what authority the Presidents are using the create these offices. It clearly states in the Constitution in Article II, Section 2:
he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law
The Constitution could not be any clearer in this matter. Any person who appointed by the President to any place under the federal government must fit two conditions. First, he seek the advice and consent of the Senate for such appointments. Secondly, the positions must be create by public law, i.e the Congress. Therefore, when the Presidents create these czars without authorization from Congress, and then appoint them without the consent of the Senate, they are in clear violation of the Constitution. And the Presidents have taken a power that was not granted to them in the Constitution, violating this key principle.
LEGISLATING THROUGH EXECUTIVE ORDERS
The last major betrayal of this principle is the worst of any kind. The President is responsible for signing many executive orders within their term. Most of these are orders that address the enforcement of laws, the placement of troops, or any number of other issues related to the President. Executive orders are not a clever way to subvert the legislative process. Almost every single modern president has used these to push their own agenda against the will of Congress. President Clinton asked members of his cabinet to isolate parts of his agenda that could be authorized by Executive order instead of legislation. Obama has started the same thought process. Take such as this article, where Obama is instituting new regulations on firearms. Or even Presidential hopeful Newt Gingrich’s Executive Order “blitz” on his first day in office.
Executive orders cannot create a law or abolish a bad one. All legislative authority belongs to the U.S. Congress and the President’s use of Executive Orders to create regulations, or give money to organization (see Solyndra and other crony capitalist schemes) apart from Congress is a clear violation of this key principle of government.
RESPONSE TO BETRAYAL
How should we respond to this problem? First, elect citizens to these offices who understand and support these principles. Second, impeach any official who knowingly and intentionally oversteps their Constitutional authority. Unfortunately the other branches of government, specifically the Congress, has not be diligent in protecting its legislative authority in these matters. By giving up its authority to regulatory agencies they have betrayed this principle and given up their power voluntarily. Many cases have struck down the over reaching regulator agencies, but they work faster than the courts and then enact more policies similar to ones already struck down. There is no easy solution for that problem, except for citizens affect by these regulations to actively sue the federal government when the regulations clearly violate the authority of the Constitution and the laws. Its a long path and not a sure one but it is a possible one.