For more than 200 years, every schoolboy and schoolgirl in
America has learned that our government has three branches
in Washington, DC --- the legislative, executive and judicial ---
each designed to complement and balance the other with
specified functions to make laws, execute laws and interpret
laws.
This clear and vital tradition of the American representative
form of government, however, seems to have been, at least
temporarily, altered by now all three branches of government
seeking to “legislate” policies, as well as see them carried out.
The U.S. form of government is always in a dynamic state
historically as it adjusts to the new conditions of new times,
as well as repair its flaws. In the course of this dynamism,
various branches have taken the lead over two centuries in
the major reforms of ending slavery, enabling voting suffrage
to women and minorities, trustbusting, ensuring civil rights,
ending segregation, creating a tax system, and many other
reforms.
This dynamism often creates imbalances between the federal
branches of government, as happened with an initially weak
supreme court in the nation’s first years, a weak presidency
in much of the 19th century (Civil War years excepted), and a
frequently stalemated Congress after World War II. These
imbalances inevitably produced excesses by competing
branches.
When the Democrats regained control of the U.S. senate in
2006, that body under its majority leader Harry Reid,
worked with then Democratic majority in the U.S. house
to pass medical insurance reform (also known as Obamacare)
highhandedly and with virtually no real debate. In 2010,
U.S. voters strongly reacted against this by giving
Republicans a strong majority in the U.S. house. Still
controlling the U.S. senate, Mr. Reid then essentially shut
down that body, allowing few votes, debates or even
amendments to legislation. This backfired in 2014 when
Republicans regained control of the senate. But President
Obama, a Democrat, reacted to the ensuing stalemate by issuing
a number of executive orders which “reinterpreted” existing
legislation. He was by no means the first president to do this,
but it has been clear that in his final years at the White House
he does not intend to be blocked from his legislative agenda by
the stalemate with Congress.
Recently, Mr. Obama concluded an agreement with Iran,
and has claimed it is not a treaty (which would require two-thirds
approval by the senate). After negotiations, he got an agreement
from the Congress that it could reject the Iran “deal,” but unless
both houses can muster huge majorities against it, he can veto
their veto, and the Iran agreement would prevail. Mr. Obama
even went further by having the United Nations approve the
agreement, this presumably trying to prevent a future president
from abandoning it. (The problem with this latter strategy is that
it would elevate the Iran agreement to a prima facie “treaty” ---
and to enforce it would then require a two thirds approval by the
senate.)
No one, of course, denies the executive branch the right and duty
to negotiate with foreign countries, but the sovereignty of the
United States and the constitutional right and duty of the senate
to approve such negotiations at the treaty level is also unarguable.
It is not only the executive branch which is over-reaching its
constitutional powers. The U.S. supreme court, led by John
Roberts, a conservative, has recently taken to “rewording”
legislation to arrive at some of its most controversial decisions.
The decision on Obamacare particularly required the chief
justice and the majority to rewrite the wording of the legislation
so as to arrive at their desired conclusion. This amounts to
supreme court legislation.
The self-justifications for these activities are being made by the
parties involved, but they are increasingly being made in an
environment of significant public opposition. Voters have twice
gone to the polls to register their strong antipathy to
“Obamacare.” Similarly, polls indicate that American public
opinion is strongly against the administration’s Iran “deal.”
In the past, it was public opinion which ultimately led to and
enabled the various branches of government to make changes
and reforms. In the absence of current support of the overreach
by the executive branch and the supreme court, it would seem
it is tenuous at best to think that this trend will and can continue.
The national elections of 2016, in fact, might just be the critical
point when voters decide to rebalance the relationships between the
branches of the federal government.
It might be possible to go around Congress in the short term,
but there is no long-term way to end run the American voter.
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Copyright (c) 2015 by Barry Casselman. All rights reserved.
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