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Return to the Original Sources of the Separation of Powers

I want to begin this response with a series of questions and comments. When and why did America go wrong? Put slightly differently, when and why did America get derailed? Who or what did the derailing? And why is this derailment so much different, in kind and not simply degree, from every other perceived previous derailment we have heard about from previous generations?

I say “perceived” because it is critical to any current derailment narrative that every previous derailment narrative didn’t realize that, given the fullness of time, their derailments were actually hiccups that, in retrospect, a couple of swigs of Pepto-Bismol would have solved. We, the post-1970 generation, for example, are the first to fully understand that the previous generations did not face serious life changes—or derailments—compared to what we, the current generation, are facing. We are the generation of the derailment. And we are the generation to put America back on track. To parody Monty Python, if you tell the old people of yesterday that they had it easy and we have it tough, they would never believe us.

The above package of questions and comments—I am confident that I have left out some elements of this potentially pessimistic portrait—seems to me to be very contemporarily American, and yet also perpetually American. And part of the peculiarity of the derailment imagery is that—blessed by some new and improved insight—the current generation is the first to realize it is the first to face the real turning point in American life! As if, prior to us, there was an American consensus. America, for the first time, is now in a situation of dysfunction and conflict. But, there is hope.  Operators are standing by. But you must call now. We can fix the problem before the train falls over the edge. True, a good derailment narrative is not bubbling with optimism, but it must at least offer a glimmer of hope of light at the end of the tunnel. There is, after all, a principle at stake. This implies that there was, perhaps, a moment when America got it right before all went (nearly) wrong. What we need is the right jolt to put us back on track. It is our responsibility to turn things around.

What is the institutional anchor of the essay by Christopher DeMuth? He begins with an original virtue. At least his point of departure is an original virtue rather than the more popular original vice narrative of Howard Zinn. America a least has a chance! “In the American system,” according to DeMuth, “competition among the three branches, each with separate sources of authority, is the essential mechanism for keeping government tolerably honest and public-spirited between elections.” I totally agree with DeMuth that the separation of powers doctrine is the critical institutional principle, or original virtue, designed to secure “individual liberty, economic welfare, and political stability.” We both agree that the doctrine of the separation of powers is at the heart of Constitutional public policy. So, yes, the separation of powers is our mutual point of departure. And, yes, an inappropriate integration of the powers of government should sound alarm bells that liberty is in danger. We also need to watch out for signals of one branch tending to monopolize the system.

Let’s fast-forward over 200 years to 2015. DeMuth finds America in 2015 derailed because the separation of powers doctrine has been undermined. “Today, Congress is an adjunct of the executive.” Congress plays “essentially no role in . . . policy prescriptions.” We have an “executive unbound” and this phenomenon has “many academic admirers and supporters.” For the most part, I agree with DeMuth.

We need to make a slight digression at this point before we address the executive unbound issue more fully.  DeMuth is aware that we might also encounter a situation where the Supreme Court is unbound.  For example, he cites the 2015 Obergefell v. Hodges decision.  He uses this as an example of the presence of “rationality” in judicial decision-making over against the shifting opinion of the people. He laments, quite correctly, that, in my words not his, we live under a Constitution, but the Constitution is what the Supreme Court says it is.  So the separation of powers doctrine, designed to secure what James Madison in Federalist 63 calls “the deliberate sense of the community” isn’t operative because either the executive branch or the judicial branch now monopolize the institutional framework.  Congress has lost its vital role within the separation of powers doctrine.  I agree.

But this dominance by the judiciary argument is nothing new.  The Antifederalist Brutus warned about the dangers of judicial supremacy in the debates over the ratification of the Constitution.  And Federalist 78 defended the institutional design by saying that Brutus is wrong; judicial review is warranted and safe for liberty because judges will only judge not legislate and they will make their decisions narrowly and only when the legislature and the people have manifestly violated the Constitution.  They will be tied down by the judicial way of thinking.  And here comes the punch line:  Congress will never allow the judiciary to become the supreme branch because under Article III, Congress has control over the judiciary. In fact, however, over the years, Congress has pretty much given the judiciary what it wants and members of Congress, along with “many academic admirers and supporters,” accept the premise, articulated over many generations, that we live under a Constitution, but the Constitution is what the Supreme Court says it is.  We could add to this list of admirers and supporters, many members of the legal profession who, by the way also happen to be prevalent in the Congress and the Administrative State.

This digression helps us to articulate a number of points related to our main issue of the “executive unbound.”  First, what bothers DeMuth, and me, is the substitution of “rationality” in decision making whereby the judiciary—and also the executive—ensure that the people and their representatives are acting in a cool and deliberate manner.  They may well make a decision that according to academic experts seems irrational. But does that mean that the people and their representatives are acting unconstitutionally?

Second, I think we need to pay a lot more attention to the role that Congress has played in its own demise as well as the civic education function performed by many academic interpreters of the three branches.  DeMuth does some of this, but the essay could be improved by paying even more attention to the educational component of the problem.  The most important boost for members of Congress is to tell them they already have the constitutional authority to curb both the excesses of the judiciary and the executive.

The digression also helps me to articulate an important difference between DeMuth’s approach and my approach to the separation of powers.  I suggest that from the very beginning, the separation of powers doctrine contained within itself the potentiality to produce either judicial supremacy or executive supremacy, or even perhaps both supremacies at the expense of Congress.  But the Framers thought this outcome to be highly unlikely.  Ambition would counteract ambition and members of Congress would be honored to be members of the deliberative branch.   What has been difficult over the 200 plus years of American politics has been adapting the centrality of political parties to the centrality of the separation of powers.  The political party system tends to undermine the attachment of a member of Congress to Congress itself.  This same question of how loyal shall a member of Congress be to Congress occurs with the increasing presence of narrowly defined political and social movements.

Let’s return to the main line.  So when did this Congressional demise and the arrival of the unbound executive take place? According DeMuth, it was 1970.  Now, I could very easily think of a number of alternative contenders in the derailment date derby from the 18th, 19th and 20th Centuries.  Take a look at the point of departure.  The opening paragraph of Federalist 1 and Brutus 1 state that 1787 is the defining moment in the history of the world. But Publius and Brutus are on opposite sides!   Hoover and FDR in 1932 agreed that what was at stake was a choice between two philosophies of government.  Whenever we have an international or civil war, for example, the political and personal dynamics undergirding the separation of powers undergo an estranged relationship.  I offer the Civil War, WW I, WW II, Korea, and Vietnam as examples. But DeMuth has his laser focused on the late 20th Century and early 21st Century domestic politics. I understand that it is important to persuade contemporary readers that they are living in critical times, but I do not think that it is necessary to present the current crisis as the first real and pretty much the final opportunity to solve the crisis of the separation of powers.

Let’s take DeMuth seriously about 1970 being the vital date of departure.  What is the nature of this 1970 derailment?   De Mouth’s answer is the introduction of the “Environmental Protection Agency, Occupational Safety and Health Administrations, and Highway Traffic Safety Administrations.”  They “were all established in 1970, the Consumer Protection Safety Commission in 1972.”   So things wobbled on the rail in 1970 and now, in 2015, we are in the midst of the first crucial derailment of the separation of powers doctrine.  “The structure of American government has changed fundamentally in the forty-five years since 1970, and its domestic policies, regulatory and other, have deteriorated strikingly.  The new regulatory agencies of 1970 were unlike anything that had come before, and in retrospect were the beginning of a trend.”

I don’t get why the Progressive era and the New Deal era are fundamentally far less an important assault on the doctrine of the separation of powers than what took place in 1970.  Here is DeMuth’s response to my concern: “In contrast to the Progressive and New Deal, agencies that regimented production in key economic sectors, the new ones (1970s plus) were devoted to personal welfare and dignity.”  Again, “what was new, and radically so, was the agency practice of ‘informal rulemaking,’ which hardly existed before 1970.”  My conclusion from DeMuth’s coverage is that, for him, it makes little sense to seek perspectives and solutions prior to 1970.  In fact, he says that 1970 is the real date of departure on a new American journey.  I disagree.  He has cut us off from the American founding and much of the arguments over the last two hundred years.  Apparently, there is little to learn from going back prior to 1970.

But haven’t we seen these so called Independent Agencies of the Administrative State around since the Progressive era and the New Deal era?  Isn’t the assault of the Progressive academics and politicians in the late 19th and early 20th centuries on the legitimacy of Congress as a centerpiece of representative democracy a vital part of the alteration in the meaning and practice of the separation of powers?  Woodrow Wilson argued for the replacement of the Founders’ Constitution with a system of Presidential and Cabinet Government along the lines of the British Parliamentary system.  That’s a pretty big assault on the separation of powers doctrine as far as I am concerned.  If there is one thing the American Political Science Association has agreed upon since 1947 is to replace the American separation of powers with the British Parliamentary system. And, surprisingly near the end of the essay, DeMuth seems to agree with me:  “The powerful, unconstrained, dysfunctional executive state is the apotheosis of Woodrow Wilson progressivism.” But maybe the word apotheosis has undergone a change of meaning.

Let’s begin again.  DeMuth has replaced 1787 with 1970 as our true point of departure, but he has retained the 1787 doctrine of the separation of powers as a sort of imaginary point of departure or an ideal type to keep in mind as we continue our journey.  According to DeMuth, there has been no regime changing disputation over the separation of powers until 1970. However, “the structure of American government has changed fundamentally in the forty-five years since 1970, and its domestic politics, regulatory and other, have deteriorated strikingly.”  This is my fundamental disagreement with DeMuth: he cuts us off from the very original sources that could help us negotiate the current assault on the separation of powers.

So one more time. What is DeMuth’s answer to the question: Why did this derailment occur?  His answer is that “systematic logic” and “rationality” of the 1970s produced the “discretionary regulatory state.”  The solution? Pay attention to the new substantial academic literature that directs us to “discursive representation.”  I cannot for the life of me understand how an appeal to “the gale of constructive competition,” Naomi Rao’s work on “collective choice,” and the references to Jurgen Habermas on discursive communication have much to do with saving the American blessings of liberty.  In fact, I do not see why we need to find a new academic approach to support the revitalization of Congress.  What is wrong with recovering the essential debates that have run through the American narrative?

DeMuth is correct: the executive has indeed gained power, and we have let the executive off—regardless of political party—since the 1970s.  But DeMuth does not mention foreign affairs and war powers.  Members of Congress have tried to haul in executive power through the War Powers Act since 1970, but you wouldn’t know about this Congressional resistance from the DeMuth narrative. What DeMuth sees as the misuse, and overuse, of the filibuster is also correct.  But this misuse, and overuse, is an example of Congress itself adopting the language of war and punishment rather than recapturing the art of debate and compromise.  So doing away with the filibuster may restore the veneer of majority rule but it won’t encourage the rejuvenation of deliberative democracy.

We need to stop portraying politics in terms of the language of war.  The war metaphor is not only part of foreign policy.  Ever since the Progressive era we have had a politics of war in domestic public policy headed by the executive as commander in chief.  A war on the robber barons, a war on the rugged individual, a war on poverty, a war on the forgotten child, a war on obesity.  And the war metaphor fits all too nicely with the other American narrative of progressive hope and transformative structural and systemic change.  In turn, the war metaphor encourages a war like response. Since the 1970s, we had the first President to resign under the threat of impeachment and only the second President to be impeached.  What we also need is a difference in the way we think about politics.

We need to drop the idea of the “midterm election” as if it were a sideshow to the main election, which is the Presidential election. We need to stop looking at electoral politics as a mandate for Presidential action. This reinforces the notion of the action President and Congress as the supporting, or obstructing, branch.  We need civic education for members of Congress. The core of that education would be that you serve your constituents and your party by serving the Constitution.  And you have the Constitutional authority to reclaim your proper place in the Constitutional system.

So, I don’t think Congress needs a structural make over.  And certainly not one that provides the executive with a line item veto.  Anyway, thanks to the rationally based decision-making at the Supreme Court, a line item veto would require a constitutional amendment. I am not persuaded that we, the current generation, are facing so many more dangerous challenges than did our parents and grandparents.  Nor am I persuaded that DeMuth’s suggested solutions to rescue the situation would do the trick. The arguments of the Framers are not part of his suggested solutions as to how to defend the Framers’ Constitution against the current critique. I don’t think we need new and controversial solutions to restore the original separation of powers and what DeMuth refers to as restoring “the self-confidence and effectiveness” of Congress.

We need to have confidence in the effectiveness of the original arguments on behalf of the separation of powers.  We need civic education more than we need legislative reconstruction.  And this will take some time.  We need members of Congress to be ambitious about restoring the institution of Congress.  The Constitution provides Congress with sufficient power to constrain the imperial presidency and bound down the imperial judiciary.

Finally, I end on a note of agreement with DeMuth. What’s wrong with bringing back “Jamie Whitten and John Dingell” even if “this doesn’t feel like progress?”  Unlike many other members of Congress, Whitten and Dingell didn’t jump off the Congressional train to ride first class in the Administrative State.

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