Remembering the Separation of Powers

By David Swanson

In a December 31, 2007, editorial, the New York Times faulted the current president and vice president of the United States for kidnapping innocent people, denying justice to prisoners, torturing, murdering, circumventing U.S. and international law, spying in violation of the Fourth Amendment, and basing their actions on “imperial fantasies.”

Um, thanks for finally noticing. What would you suggest we do about it?

“We can only hope,” concludes the New York Times, quite disempoweringly, “that this time, unlike 2004, American voters will have the wisdom to grant the awesome powers of the presidency to someone who has the integrity, principle, and decency to use them honorably. Then when we look in the mirror as a nation, we will see, once again, the reflection of the United States of America.”

But here’s the problem (other than the pretended certainty that Bush won the 2004 election):

The United States of America, as established by its Constitution, simply does not have a presidency with awesome powers. And the powers that Bush and Cheney have newly bestowed on the presidency, unchallenged by Congress or the media, are not powers that any human being can be expected to use with decency.

The Constitution gives the president extremely limited powers. He (or she) is to execute the laws created by Congress. He serves as commander in chief of the military. He can pardon crimes (but not impeachments). If he consults with and gets the support of the Senate, the president can negotiate treaties and appoint officials, ambassadors, and judges.

That’s about it. There is no constitutional presidential power to write or alter or violate laws, to act in secret, to abridge the judicial system, to violate the Bill of Rights, to violate existing treaties, to build an empire, or to launch a war. Those powers do not belong in the hands of a new president with “integrity, principle, and decency,” because they do not belong to the U.S. presidency at all. If the New York Times thinks that a new president with those powers will give us back a country that looks like the United States, then the New York Times is peering into a cracked mirror.

Oh, and the Vice President under the Constitution has no particular powers at all, other than serving as the president of the Senate, where he only gets to vote if there’s a tie.

In contrast, the legislative branch of our government, historically and even today in the version students are still taught in schools, has truly awesome powers. The Congress has the power to enact laws, all laws. Congress also has the sole power to raise and spend money. It has the power to declare war and to fund and oversee the military. It has the power to regulate international and interstate trade. Congress handles immigration, bankruptcies, the printing and valuing of money, the post offices, copyrights. Congress has the power to “constitute tribunals inferior to the supreme court,” and “to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” But the first power the Constitution grants the House of Representatives is the power of impeachment. The first power it grants the Senate is the power to try all impeachments.

In school we learn about the “Separation of Powers” and about something called “Checks and Balances.” Our three branches of government are supposed to be separately elected, none of them created by any other. And the power to run the nation is supposed to be divided. Congress has certain powers. The courts have other powers. The president has others. Congress, as the most powerful branch, is further divided into two houses with somewhat separate powers. It’s important to understand that Congress is more powerful than the other branches, which is one reason the phrases “balance of power” and “checks and balances” can be misleading. There is not supposed to be anything evenly balanced about it.

Our system of “presidential” government derives from the English system when it had a king running the country, as opposed to the modern English system in which the prime minister is dependent on the parliament. A presidential system, in which the winner takes all in presidential elections, tends to develop two parties, and tends to develop party- , rather than governmental-branch- , loyalties in members of the legislature. This leads in turn to the phenomenon exemplified by Congressman Jerrold Nadler (D., New York) asserting that impeachment is no longer a part of our Constitution because we now have political parties.

But, of course, we had political parties when Richard Nixon was driven out of town and have had them throughout our nation’s history. Any system is dependent on the people within it and the activism of the people outside of it.

Tom Paine mocked the idea of “checks and balances” as absurd, not because he had a plan for a better government without such a system, but because he didn’t think parliamentary checks on a hereditary monarch justified colonial rule over people lacking any representation in either branch. Ultimately, the decisive factor in what sort of government people get is going to be the actions of the people outside the government. The checks and balances we now pretend to have in the United States are as absurd as were those enjoyed by King George. But serious checks and balances provide a canary in the capital coal mine. When they are violated, people should recognize and act on the danger.

Under the U.S. system, the executive branch is understood to have the following checks on legislative power, and it still has them, plus some:

1. The veto. Bush does still have this power, but it is overshadowed by his newly created signing-statement power. No longer must he choose between signing a bill and vetoing it. Now, he can choose to sign it and rewrite it.

2. Commanding the military. Bush does still have this power, but he has added to it the power to declare war in violation of various laws, to act in secrecy in matters of war, to lie to Congress about war, to engage in a variety of war crimes, to misappropriate funds for wars that were not approved for them, and to take the National Guard away from states in order to use it in the commission of his crimes.

3. The vice president’s vote in the Senate. He does still have this power.

4. Recess appointments. Bush makes use of this power.

5. Calling Congress into session in emergencies and determining adjournments when the two houses cannot agree. This is less relevant now that the bums hardly ever go home.

And the President is understood to have these checks on the judicial branch, which he indeed still has:

1. Appointing judges. Bush still has this power.

2. Pardoning convicts. Bush still has this power. He has even commuted the sentence of a White House staffer convicted in a case Bush himself is involved in (an act that James Madison and George Mason deemed an impeachable offense). Bush also orders former staffers to obstruct justice, refuses subpoenas, and declines to testify under oath or without Cheney at his side.

The executive branch also has a check on itself. The vice president and cabinet can vote that the president is unable to discharge his duties. Sadly, failure to discharge duties has become the standard for membership in the cabinet.

The judicial branch has an important check on Congress and the president in that it can rule laws to be unconstitutional, but this has been eliminated by Bush and Cheney. The chief justice of the supreme court also serves as president of the Senate during a presidential impeachment. But that power depends on the House of Representatives first impeaching.

The legislative branch is supposed to have an array of checks on the president and vice president, including various minor powers of oversight. But the all-important check is impeachment. With that removed by Nancy Pelosi, subpoenas cannot be enforced. Freedom of Information Act requests cannot be enforced. Contempt citations cannot be enforced. In fact, laws of all types cannot be enforced.

Congress has the power to pick the President and Vice President if there is no majority of electoral votes. This is a major exception to the idea of separate powers, but it is unlikely ever to come up, and means less now that elections are routinely stolen.

Congress can override a presidential veto, but that power too is rendered irrelevant by new presidential powers. The Senate gets to approve appointments, but that power is clearly not sufficient to rein in the march of the Bush power grab. The Senate gets to approve treaties, a power that is also insufficient to check Bush’s abuses, even without its elimination by Fast Track. Congress gets to approve the replacement of the vice president, but that power depends on getting rid of the current one.

Congress gets to declare war, but has handed that power to the president. Congress gets to allocate funds, but Bush has misappropriated funds without repercussion or even remark and has openly claimed the right to do so in signing statements. A huge percentage of government funding (of the military and secret spying) is largely unaccountable. The president is required to deliver a “State of the Union” speech, but he’s clearly not required to speak the truth.

That’s about it. The only major tool in the box of legislative checks on the executive branch (or the judicial branch) is impeachment. That’s not the fault of impeachment advocates. That’s the way the Constitution designed it.

After Bush and Cheney lost to Gore and Lieberman but were installed by the supreme court, Congress could have refused to certify the election or could have immediately impeached. Or it could have waited for the first string of impeachable offenses. With Congress failing in this for four years, it was left to the public to check the power of Bush and Cheney. The evidence from Ohio is overwhelming that we did so. Yet they remained in office. It was then up to Congress, and is still up to Congress, to impeach, and it would be even if we had credible honest elections. The point of impeachment is not to do what elections do. It is not to swap one tyrant for another every four years. The purpose of impeachment is to rein in an outlaw president or vice president immediately and to establish limits on the abuses that will be permitted future members of the executive branch. The executive branch bears little resemblance, remember, to the “unitary executive” branch.

It’s true that, as Nadler claims, we do not have the same world we once did. There are indeed major problems with our system of government that have nothing to do with impeachment. We lack a credible election system. We lack democratic communications systems. We’ve legalized massive bribery. We’ve imposed grossly undemocratic primary elections. We’ve locked out any but two entrenched parties. We’ve created an eternal election season.

Some of these structural deficiencies will be easier to repair than others. But among the easiest are the most significant. We don’t just have political parties. We also have astroturf activist groups that voluntarily take their instructions from the leadership of those parties. And we have raised millions of anti-citizens, human beings who live in the United States of America but self-censor themselves, declining to speak up for their own interests when those conflict with the interests of an entrenched party elite. The same phenomenon is at work within Congress, where the people’s representatives have accepted, as has the New York Times, the shifting of all power to the White House. Their interest is in whether the next king will be a Democrat or a Republican. Our interest should be in making sure it is not a king at all. We can only do that by making 2008 the year of impeachment.

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Note: The author will be speaking about the Separation of Powers at an event this Sunday that will be shown in live video online, with viewers able to Email questions. The event is the second of two related events on January 6th in New Hampshire and is open to the public:

First Event: An Impeachment Town Hall Meeting sponsored by Progressive Democrats of America (PDA). Join “The Nation’s” John Nichols, author of The Genius of Impeachment; Steve Cobble, Kucinich Campaign Political Advisor and PDA Board member; and Vermont Impeachment activist Dan DeWalt for a lively and informative discussion.
Where: Keene Unitarian Universalist Church, 69 Washington Street, Keene, N.H.
When: 5:30 to 7:30 p.m.

Then, caravan to Manchester for…

Second Event: Participate in a Forum on the Separation and Balance of Powers with Congressman and Presidential Candidate Dennis Kucinich, AfterDowningStreet, Democrats.com, PDA, ImpeachCheney.org activist David Swanson, and author Gore Vidal live via video.
Where: 540 R N. Commercial Street, Manchester, N.H.
When: 8:30 to 10:30 p.m.
Or watch live and Email in your questions at http://www.kucinichtv.com