It is a close contest which recent assertion of executive authority crowns the rest, but the Administration’s potential skirting of the Senate’s treaty power in negotiating an international agreement on climate change ranks high in the running. The Constitution’s explicit partnering of the Presidency and the Senate in binding the nation in global agreements, combined with the two-thirds majority needed in the upper chamber of Congress to affirm them, points to the unique dangers of cutting one institution out of the process. President Obama is not the first to do this.
Routing a political dispute to the courts is the constitutional equivalent of appealing to one’s parents for relief from mistreatment by the bully on the block. How about throwing some weight instead?
Senator Ron Johnson’s fists are stuffed in his pockets as he runs across the Capitol Plaza to the pillared edifice where parental figures in black robes dispense constitutional wisdom evidently inaccessible to the rest of us. The Wisconsin Republican is suing President Obama over the administrative agreement that protects members of Congress and their staff from the legal requirement—which, by the way, was the product of asinine posturing, but which is also, you know, law, which you can tell because it bears the President’s signature—that they purchase insurance on the Obamacare exchanges.
The brilliant light that burst over the Northwest quadrant of the nation’s capital Thursday was not a sunrise. Illuminating the skies above the White House was the light bulb of discovery, in this case of an antiquated constitutional ideal: the separation of powers. The NSA metadata program having been authorized by Congress, the President announced plans to seek its reform by Congress. He is to be commended for involving the legislative branch of government in a decision involving, well, legislation.
President Obama and his advisors have told us that he can work around a purportedly obstructionist Congress by using what they claim is legitimate executive authority exercised by “pen and phone.” The phrase is meant to put across the idea that the president can get things done by signing off on various formal and informal executive initiatives, and cajoling Americans within government and without to act according to his vision. White House advisor Dan Pfeiffer, who is credited with inventing the phrase, recently explicated its meaning by observing that in an era of divided government, a Democratic president cannot easily get his way when Republicans control Congress. In order to “move the ball forward” on the president’s agenda, the deployment of “executive power” is required, according Pfeiffer.
During a recent trip to the National Archives, I saw one of the earliest known copies of Magna Carta in existence. And I remembered one of my favorite parts of Magna Carta, the “Law of the Land” clause:
No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.
This pronouncement, that neither life, liberty, nor property can be taken except by the “judgment of his peers or by the law of the land,” is the constitutional predecessor of our Due Process Clause. This also served as a basis for some notion of judicial review. Some argue that this history provides for a substantive component of law, rather than a mere procedural aspect.
If common law is judge-made law, as every law student these days is taught to think and as every political scientist who bothers to notice it presumes, then one easily enough understands why it is viewed by patriotic American citizens with suspicion. Everyone who reads the Constitution knows that the legislative power is vested in Congress, not the courts. Everyone who follows the courts knows that their constitutional decisions are treated in the press as judicial policy-making. And everyone who can connect the dots would conclude that common-law is the seductress leading judges away from their proper function of doing justice according to law in particular cases brought before them, and into the heady business of rewriting the Constitution when lobbied through the vehicle of a high-profile case.
Justice Scalia put this charge memorably in his book, A Matter of Interpretation, saying law students are taught in their common-law courses the art of “playing judge, which in turn consists of playing king—devising, out of the brilliance of one’s mind, those laws that are to govern mankind.”
The Senate occupies a unique place as the fulcrum of the constitutional order. The filibuster does not occupy a unique place as the fulcrum of the Senate. The course the body took Thursday—which limited the use of the device in presidential nominations—will be added to the growing list of precedents to be avenged in due course, but the filibuster should not be inflated to quasi-constitutional status it does not, and probably ought not, enjoy.
An article tucked away on the back page of my local newspaper caught my attention: the Library of Congress has become the latest federal agency to acquire a SWAT team. The Library of Congress? We know that only members of Congress and high level executive department officials have check-out privileges, so it is unlikely that SWAT teams will be used to recall overdue books. What then? Is there evidence of a planned terrorist plot to destroy the Madison papers and thereby our memory of constitutional government? Perhaps an assault by Taliban negotiators on some of the still-secret Kissinger papers to learn how Le Duc Tho outwitted the U.S. in the Paris Peace accords?
In the series of debacles that is the situation in and reacting to Syria, one emphatic triumph ought not go unheralded. The antique apparatus known as the Philadelphia Constitution works, which is to say the machinery—when, as rarely, cleaned, oiled, wound and deployed—operates precisely as advertised. In this case, it inhibited a war the people did not support through the mechanism—the House of Representatives—intended to register their views.
My earlier post prompted several very thoughtful comments that well warrant a reply and, folks willing, further discussion.
Thanks to Ron Johnson for his kind words. Yep, there’s ample reason to worry that conniving politicians in Washington go into business for themselves and their friends. The concern is as old as the republic: it was a standard Antifederalist trope. The standard Federalist reply was that the system requires some distance from the electorate (what we now call “agency slack”): that’s Madison’s argument for representation, large electoral districts, “filtration,” etc. And you can argue that the system is now failing us because those mechanisms have broken down: every obscure Congressman is perfectly monitored. Every legislator knows that Medicare is going bust; every legislator has to lie about it and vote the AARP line. In my estimation there’s some truth to the “political class” argument, but it’s not the whole truth.