The following article by Mickey Edwards, a longtime US Congressman, was published in February 2017. He was distraught that the American system wasn’t functioning as designed. The presidency had overpowered the legislature as well as the state governments. The separation of powers had weakened and the country was becoming more like a parliamentary democracy where the Executive branch dominates. This was not the plan of America’s Founders.
But Edwards should take heart. The US system is resilient and re-balances its separation of powers whenever a branch of government overreaches. Within two years of Edwards article, the situation with the presidency has turned and the office is once again under Congress’s control. Today, the legislative body routinely denies President Trump legislation (repeal of Obamacare, for example) and funds (border wall). Congress is also launching investigations against the President and his men, at the drop of hat.
-Bhanu Dhamija (February 2019)
[Excerpts of Edwards article first published on Politico.com]
We No Longer Have Three Branches of Government
By Mickey Edwards
For more than a dozen years, teaching government classes to graduate students at Harvard and Princeton, I filled my students’ heads with facts that no longer seem to be true. They have become “alternate facts,” or perhaps just outdated ones.
It has been my habit to begin each semester by slowly taking students through the Constitution, each article and section in turn, emphasizing not only each provision but why it was included. Fundamental to the constitutional process, I taught, was the unique delineation of authority and responsibility: the separation of powers that so cleanly distinguished American government from those that had gone before it. There were three branches, independent of each other, with varied duties and roughly equal. The greater power—overtaxing, spending, deciding whether to go to war, confirming members of the president’s Cabinet and justices of the Supreme Court—had been placed in the Congress, I said, because while the Founders had created a republic, they also added a sprinkling of democracy: The people would choose who would do the actual governing.
I would underscore this point by noting the provisions that made clear the Framers’ deliberate rejection of a parliamentary system like the ones they had known in Europe, where legislative and executive power were joined. Here, it was to be the people, not the parties, that ruled, I told my students.
I believed it to be true—certainly it was what the Founders intended, and it was pretty close to the reality when I was first elected to Congress 40 years ago. But it’s no longer accurate. Instead of three equal, independent branches, each a check on the others, today’s federal government is, for practical purposes, made up of either two branches or one, depending on how you do the math.
The modern presidency has become a giant centrifuge, sucking power from both Congress and the states, making de facto law through regulation and executive order. Yet the growing power of the executive is not merely a case of presidential power lust. For decades, the Supreme Court has consistently held that on most policy questions, foreign as well as domestic, statute trumps fiat (as recently as 2014’s decision Zivotofsky v. Kerry, the court declared that “the executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue”). But if Congress subordinates its constitutional duties to political concerns, what then?
Presidents have managed to accumulate such a prominent place at the top of what is now increasingly a pyramid rather than a horizontal structure of three connected blocks because for more than a generation, Congress has willingly abandoned both its constitutional responsibilities and its ability to effectively serve as a check on the executive even when it wishes to do so.
In the days after Donald Trump’s election, even after the new Congress was sworn in, congressional leaders waited eagerly to receive direction from the incoming president on budgetary, and even legislative, priorities. It is, at this point, a familiar pattern. When Barack Obama was president, Congressman Steve Israel, who had been tasked with overseeing House Democrats’ messaging, noted that Obama was, in fact, “our messenger in chief.” To a considerable extent, Republicans and Democrats in Congress have taken to seeing themselves not as part of a separate and competing branch of government, but as arms of their respective political parties.
Americans have become accustomed to seeing Congress—especially when it’s controlled by the same party that holds the White House—wait for presidents to submit their proposed federal budgets before beginning serious discussions about spending decisions. But presidents prepare national budget proposals not because they are entitled to tell Congress what to do, but only because Congress has tasked the president with doing so in order to give the legislature a better sense of his thinking—and give members of Congress the chance to gather the information they need from the executive branch to decide how much to spend (and on what) and whether to increase taxes to pay for it. By stripping itself of sufficient resources to compete with the executive, Congress has made itself not the parent of the national budget, but a secondary player often forced by its own inadequacy to tinker at the edges with what presidents demand.
Of course, there remains another branch of government which, like the Congress, is theoretically and constitutionally separate and independent. But in reality the separateness is a bit fuzzy. That’s because even in this age of hyperpartisanship, there is at least one important area in which Democrats and Republicans think alike: both parties view the federal courts, and especially the Supreme Court, not as a neutral, Constitution-bound, arbiter, but as a de facto branch of the legislature.
Whether by a president, presidential candidate, or member of Congress, potential jurists are evaluated not on judicial temperament, quality of reasoning, or other examples of what were once considered “judicial attributes.” Today, the dominant question is how a nominee for the court will rule on controversial political questions. Last year, both Hillary Clinton and Trump, like presidential candidates before them, announced, as a part of their political campaigns, a “litmus test” for potential court nominees.
While many previous Supreme Court nominees were confirmed by the Senate with little or no dissent, Democrats and Republicans in today’s Senate announce their support or opposition at the instant of the nomination’s announcement—often even before a specific nominee is chosen—in anticipation of how the nominee will vote on questions of abortion, immigration, regulations, firearm ownership, and so on. Whether Merrick Garland or Neil Gorsuch, the question is not whether the nominee is qualified to function judicially, but whether he or she is “one of us”—that is, a fellow liberal or conservative. Each Supreme Court nominee is viewed as if he or she were to be a 101st vote in the Senate.
Today’s “separation of powers” is no longer between the three original, constitutionally created, branches of government, but between, on the one hand, a branch consisting of the president, his supporters in Congress and their mutual supporters on the federal bench; and on the other hand, a branch made up of the party in opposition to the president, his opponents in Congress and their co-partisans on the bench.
America’s Founders recognized the truth in Hobbes’ declaration that governments were needed to prevent abuses of the weak by the powerful. But they recognized that government, too, would need to be prevented from committing its own abuses—hence the need for the sometimes frustrating but nonetheless necessary divisions of authority between the state and federal governments and between the branches of the federal government. That is the system described in the Constitution and the system I taught. But it is not the system by which America operates today—a persistent war between competing political clubs.
I taught my students a system of government based on the Constitution. I thought I was teaching about current events. Instead, I now realize, I was teaching ancient history.
[Mickey Edwards is a former eight-term member of Congress and chairman of the House Republican Policy Committee. After leaving office in 1993, he taught government for 13 years at Harvard and Princeton, and became a vice president of the Aspen Institute, where he directs a political leadership program.]
This article was first published on Politico Magazine on 27 February 2017