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Remembering the Separation of Powers

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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.

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David Swanson is the author of "When the World Outlawed War," "War Is A Lie" and "Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union." He blogs at http://davidswanson.org and http://warisacrime.org and works for the online (more...)
 

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The New York Times now has Bill Kristol to straigh... by John Sanchez Jr. on Friday, Jan 4, 2008 at 3:44:08 PM