An Opportunity to Return American Law-Making to Its Constitutional Roots

November 10, 2014

The U.S. Constitution divides the power of the federal government among the three branches: the legislative power to Congress, divided between the House and Senate (Art.1 Sec.1), the executive power to the President (Art2 Sec.1) and the judicial power to the Supreme Court and such lower courts as Congress may create (Art.3 Sec.1).  This structure is described as “the separation of powers” and as creating a system of “checks and balances.” The legislative and executive create and enforce the law and the judicial reviews it to see that it complies with the Constitution.

The three branches are thought of as equal in power but closer scrutiny indicates that at any given point in time, one of the three branches dominates, or is at least at the forefront of making federal law.

Starting with the Roosevelt Presidency, because of the Great Depression and his threat to “pack” the Supreme Court if it challenged his programs meant to deal with its exigencies, closely followed by the start of W.W. II, the President, as Commander-In-Chief (Art.2.Sec.2), became the dominating branch. That dominance continued through Truman’s presidency. During those thirty years Congress, in effect, atrophied.  Then, President Eisenhower, for whatever reasons, conducted a less active presidency.  With Congress in atrophy and a less active President, a vacuum was created and the judicial branch filled the void and the era of “judicial activism” began.

Since then, foreign affairs and wars, both “cold” (Russia) and “hot” (Viet Nam, Iraq and Afghanistan) have been the focus of the executive branch’s attention and the judiciary has dealt with the attention-grabbing domestic issues, abortion, same-sex marriage, etc.  There have been three major instances when the federal law-making process worked as the founding fathers intended.  President Johnson, with his close relationship with the Senate was able to get the 1964 Civil Rights Act enacted.  President Reagan and Speaker O’Neill were able to work together to pass income tax-reform and President Clinton was able to work with Speaker Gingrich to reform welfare. It seems fair to say, even with these exceptions, that for all these years Congress has played a lesser role.

Presidential prominence has flourished during the Obama Presidency because in addition to running the wars, President Obama has increased executive power by defiantly reminding us that he “has a pen” and a “phone” and frequently using that pen and that phone to issue executive orders and instruct Cabinet members and Agency Chiefs which laws not to enforce and how he wants other laws enforced. His prominence has almost been raised to dominance by the way the Majority Leader of the Senate refusing to bring House bills to the floor of the Senate.

It is often said that Americans believe in divided government i.e. that the branches of government be split between the two political parties.  The framers of the Constitution also believed in divided government, but one divided by function, not partisanship.  They contemplated that the branches would put partisanship aside to act in the national interest.

We also often say that partisanship ends at the shore so that the President can conduct foreign affairs (Art.2 Sec.3) effectively.  I believe the Constitution contemplates that partisanship stops at the door of government so that the national interest is served effectively.       

The House and Senate have the opportunity to use their enhanced power to reclaim their primary roll in creating federal law. By the careful and wise use of the House’s power over taxes and funding (Art.1 Secs.7&9) combined with the Senate’s power to advise and consent to appointments (Art. Sec.2) they can begin, and I stress begin, to limit Presidential power to its constitutional boundaries and eventually secure Congressional primacy.  After all, Article 1, Section 1 of the Constitution states, “All (and I emphasize ALL) legislative power herein granted shall be in a Congress of the United States….”

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Burt Brody is a retired law professor living in Palm Desert CA.