Friday, February 10, 2006
More on the separation of powers
Yale law professor Jack Balkin, the major domo of one of the better blogs on con law issues, has a good
post today on the likelihood that Congress will any time soon overcome its reluctance to perform its traditional role of oversight on the other branches of government, particularly the executive branch.
Congressional Oversight, Party Loyalty, and Separation of Powers
There are at least two different explanations for resistance among Republicans to the President's NSA program. The first is that there are some public spirited public officials who genuinely believe that the program violates the law and/or the Constitution, and are worried that the Administration is dangerously aggrandizing power, and are willing to risk the disfavor of the Administration in saying so. The second is that Republican members of Congress increasingly understand that their political fortunes are not tied to that of the Bush administration and that what is good for their interests in reelection may differ from the Administration's. This President, after all, will never run for reelection while Congressmen and Senators must continually do so.
Our constitutional system is premised on the idea that the first explanation-- of simple public spiritedness and courage--will not always be sufficient and that the second explanation--of political self-interest—will often be necessary to counteract overreaching by another branch of government.
The problem, however, is that in contemporary politics party loyalty has often proved much stronger than institutional rivalry between Congress and the President. After the Republican Party succeeded in capturing both Houses of Congress and the Presidency (not to mention a majority of the Supreme Court), the basic strategy was for the political branches to work together. Karl Rove used 9-11 and the War on Terror to create a new set of themes that Republicans could unite around and run on to the disadvantage of Democrats.
To a significant extent, the Administration is still using that same playbook-- repeatedly sending the message that Republicans are serious about protecting Americans, while Democrats are not. Using these themes, the President ran on behalf of Republican candidates in 2002 with considerable success, and he managed to increase Congressional margins in 2004.
As a result, Republicans in Congress have, until recently, been unwilling to perform the function of Congress in a system of separated powers--to oversee, expose, or push back against Administration overreaching, bad judgment or incompetence. Because this natural check and balance of the political system has been overcome by party politics, the result has been repeated instances of all three--overreaching, bad judgment and incompetence.
Many have worried that the successful political strategies we have seen in this Administration mean that the logic of the constitutional system is breaking down and that we can no longer depend on separation of powers to check the other branches. That is why the recent developments are so important. They suggest that although a movement party like the Republicans can work together for a while, at some point repeated election cycles drive a wedge between the interests of Congress and the President controlled by the same party, particularly when the Administration is a lame duck Administration.
Although I have not been a fan of the Twenty Second Amendment, which limits Presidential terms to two, it does have the unintended effect of helping to create this sort of wedge. Even if a movement party controlling both Congress and the Presidency can march in a relatively secure lockstep during a President's first term, differences will almost certainly arise in the second term. And of course, if the public becomes sufficiently aroused and unhappy with what the movement party has done, it may break up the constitutional trifecta and hand one House or the Presidency to the other party.
The question is whether this mechanism is enough to do all the work that the framers of the 1787 Constitution originally hoped it would. (We must remember that the framers didn't even believe that there would be political [sic] parties, so the fact that the system of separated powers has done much of the work it was intended to do is something of a miracle). Although the signs are hopeful, the jury, alas, is still out on this question. Republicans and Democrats alike have worked hard to ensure a large number of safe seats in the House; moreover, the contemporary system of campaign finance favors incumbents and allows Congressional leaders to keep Congressmen and Senators in marginal constituencies in line. Hence the Rovian model of a relatively disciplined party in which the President and Congressional Republicans work in lockstep may still have considerable staying power. And it is that Rovian model that has undermined the system of checks and balances that helps keep Presidents honest. Even though some Republicans are now objecting to this President's repeated acts of overreaching and incompetence, I am not yet convinced that the Congress as a whole will be able to perform its oversight function in a sustained fashion. Only time will tell.
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