Ideology vs. reason and a constitutional crisis

Most sentient humans have ideological beliefs. When they become acceptable substitutes for rational thought they can be pernicious.

Jonathan Turley, whom I consider a liberal in the old-fashioned sense and not what I refer to as a “librul,” today testified before the House Judiciary Committee on usurpations of congressional authority by the President, regulatory agencies and the courts — often with congressional acquiescence if not encouragement. The transcript of his prepared remarks is at the second link. He neither had an epiphany on the road to Damascus nor became a “far right” conservative; he has long held and expressed the views stated in his testimony. Mr. Turley noted that he voted for President Obama and has agreed with some, but apparently not all, of the motivations for some of President Obama’s usurpations. He is, regardless of his personal views on those matters, opposed to those usurpations because they are very harmful to our constitutional republic — without regard to who does the usurping or why.

In the remainder of this post, I have quoted from Mr. Turley’s prepared remarks and added my own brief commentary. For those willing to wade through the “legal mumble jumble” it would involve, I recommend reading his remarks in their entirety.

Given the issues at stake in this debate, it is vital that we speak plainly about the current conflicts between the Executive Branch and the Legislative Branch. We are in the midst of a constitutional crisis with sweeping implications for our system of government. There has been a massive gravitational shift of authority to the Executive Branch that threatens the stability and functionality of our tripartite system. To be sure, this shift did not begin with President Obama. However, it has accelerated at an alarming rate under this Administration. These changes are occurring in a political environment with seemingly little oxygen for dialogue, let alone compromise. Indeed, the current anaerobic conditions are breaking down the muscle of the constitutional system that protects us all. Of even greater concern is the fact that the other two branches appear passive, if not inert, as the Executive Branch has assumed such power.

As someone who voted for President Obama and agrees with many of his policies, it is often hard to separate the ends from the means of presidential action. Indeed, despite decades of thinking and writing about the separation of powers, I have had momentary lapses where I privately rejoiced in seeing actions on goals that I share, even though they were done in the circumvention of Congress. For example, when President Obama unilaterally acted on greenhouse gas pollutants, I was initially relieved. I agree entirely with the priority that he has given this issue. However, it takes an act of willful blindness to ignore that the greenhouse regulations were implemented only after Congress rejected such measures and that a new sweeping regulatory scheme is now being promulgated solely upon the authority of the President. We are often so committed to a course of action that we conveniently dismiss the means as a minor issue in light of the goals of the Administration. Many have embraced the notion that all is fair in love and politics. However, as I have said too many times before Congress, in our system it is often more important how we do something than what we do. Priorities and policies (and presidents) change. What cannot change is the system upon which we all depend for our rights and representation.

Convenience has long been the enemy of principle in politics. It is not enough to refer to the value of a program to justify its extraconstitutional means. Such constitutional relativism cuts the entire system free of its moorings; leaving the system adrift in a sea of politics where the ability to act is treated as synonymous with the authority to act. There is no license in our system to act, as President Obama has promised, “with or without Congress” in these areas. During periods of political division, compromise is clearly often hard to come by. That reflects a divided country as a whole. Such opposition cannot be the justification for circumvention of the legislative branch. Otherwise, the separation of powers would only be respected to the extent that it serves to ratify the wishes of a president— leaving only the pretense of democratic process. Circumvention is used to avoid any compromise and instead to force victory on the unilateral terms of one branch. 

As I will discuss, the Framers gave the Congress a variety of means to protect its institutional authority. However, these means have lost much of their vitality due to the changes in the federal government. Moreover, the Framers never expected Congress to be solely responsible for the maintenance of the separation of powers. The current crisis is the result not simply of executive overreach but also of judicial avoidance in the face of that growing encroachment. The courts are now absent — without constitutional leave — in the midst of one of the most fundamental conflicts in the history of our country. That will make corrective measures all the more important (and all the more difficult) for Congress. [Footnotes omitted and my emphases added here and in other quotations from Mr. Turley’s prepared remarks.]

Agree or disagree with Mr. Turley’s ideological positions on such matters as man-made climate change, it is difficult to understand how anyone who respects and reveres our constitutional system of Government could disagree with the arguments presented in his testimony.

The remainder of Mr. Turley’s remarks before the Judiciary Committee dealt with what the Congress can do to halt or at least to retard usurpations of congressional authority. His proposals would be very difficult to pass and, to the extent that they require legislation that manages to pass both houses, are likely to be vetoed or ignored by the President.

The principal sources of the present “constitutional crisis” involve the Executive and Judicial Branches as well as the “fourth branch,” our plethora of regulatory and administrative agencies, commissions and departments which have increasingly been given broad legislative powers by members of the Congress too lazy and/or too busy collecting funds and getting re-elected to bother doing their jobs.

Judicial Branch

The legal doctrine of “standing” is intended to preclude litigation by parties lacking any cognizable direct interest in the matter to be litigated. If I were to beat my wife, she would have standing to sue me. Prosecutors employed by local or in some cases Federal governments would have standing and could proceed against me criminally. Our next-door neighbor would not have standing. If my taxes are raised and the proceeds used to fund abortions or remedial education for those whose religious views preclude support for “gay” marriage or abortion, I would not on that basis alone have standing to challenge the taxes or such uses of the resulting funds.

[I]n the last few decades the Supreme Court has removed itself
from separation of powers cases . . . in the name of separation of powers. Indeed, in its decision in Raines v. Byrd, the Court insisted that “we must put aside the natural urge to proceed directly to the merits of this important dispute and to ‘settle’ it for the sake of  convenience and efficiency. Instead, we must carefully inquire as to whether appellees have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable.”

Some of the most important questions to the Framers, like the declaration of war, have been avoided by the courts under claims that the judiciary is somehow strengthening the separation of powers by refusing to reinforce the lines of separation. It is akin to fire departments allowing houses to burn under the claim that citizens are best source for fire protection. Thus, the reasoning goes, if “only you can prevent wildfires,” then only you can put them out. The policing of the lines of separation is the single most important duty of the courts since the separation of powers was designed as a protection of individual liberty. It is the concentration of authority in any one branch that threatens individual rights. While checks and balances exist, the protection of the structural integrity of the system (as with federalism guarantees) rests with the courts as neutral arbiters. In these
cases, the courts are not asked to resolve political questions but are instead asked to resolve conflicts regarding the process through which such questions are resolved.

Modest changes to the ill-applied doctrine of standing would go far toward ameliorating the the problems.

Executive Branch

The classic check on executive over-reaching is the power of the purse. While the President may control the machinery of the state, it is Congress that supplies the gas needed to run those machines. However, the idea of the purse strings as a meaningful check on executive power is often presented in highly generalized and unrealistic terms. Congress is unlikely to cause a cascading failure by cutting off all of the funding for an
agency or even a subagency office. More importantly, the Executive Branch routinely moves billions of dollars around in discretionary or undesignated funding. Cutting off the funding of a given part of the government does not have immediate impacts and may in fact not prevent funding as intended.

The Obama Administration has shown how the power of the purse has diminished under modern fiscal systems. Consider the health care controversy. As the Washington Post reported, “[t]he Obama administration plans to use $454 million in Prevention Fund dollars to help pay for the federal health insurance exchange. That’s 45 percent of the $1 billion in Prevention Fund spending available [in 2013].” Even leading Democratic members denounced this act as “a violation of both the letter and spirit of this landmark law.” However, that open disregard of the power of the purse resulted in nothing of consequence for the Administration. Congress was simply circumvented and the President effectively self-appropriated federal funds for his own priorities. Constitutional objections amounted to little more for the President than what Macbeth described as voices “full of sound and fury, Signifying nothing.”

. . . .

Federal appropriations have become so fluid and discretionary spending so lax that presidents are now more insulated than ever before from the threat of de-funding. This is not to say that the power of the purse is no potential hold on Administrations. Congress needs to be more specific on the use of funds and reduce the degree to which funds are given for discretionary uses, particularly during periods of circumvention and tension.

Our congresscritters do not relish doing the tedious and boring work needed to propose, let alone get passed by both houses, legislation with sufficient specificity as to which funds are to be used for, and only for, what.

Possible solutions

The current threat to legislative authority in our system is comprehensive— spanning from the misappropriation of funds to the circumvention of appointments to negation of legislative provisions. Any solution, therefore, must also be comprehensive.

For that reason, the current proposals should not be considered in isolation but as part of a broader package of legislative countermeasures. The proposed legislation on legislative or member standing is particularly of interest to me, as I stressed in my earlier testimony.

. . . .

While I understand the reluctance of courts to consider political questions, a separation-based challenge is not a political but a structural question that is committed to the courts. Indeed, “standing” does not appear anywhere in the Constitution as a term or even by reference. It is a creation of the courts and has radically changed over the years to create a growing barrier for access to the courts. We now face a situation where major alleged violations of the Constitution are raised but there is no one who clearly has the standing to force judicial review.

. . . .

The greatest difficulty facing a legislative solution to this morass is that the Court has actively sought to bar lawsuits by basing many of its decisions on its interpretation of Article III as opposed to prudential considerations. Congress can alter standing under prudential principles but cannot alter the constitutional meaning of Article III. Absent a constitutional amendment, a change in the interpretation of Article III can only come from the Court itself.

. . . .

Legislative standing is a modest extension of standing to a relatively small group, but it would have a pronounced impact on separations controversies. Standing limitations are often defended by the courts under the theory that those with the most at stake in disputes are the most likely to present the strongest arguments. When it comes to separations conflicts, members have such resources and such an interest to present strong cases. To use colloquial parlance, they have “skin in the game” when it comes to the separation of powers.

The problem with securing legislative standing is the specific grounds laid bout [sic] by the Supreme Court for its past decisions.  Any change in the Article III limitations would have to come from that same Court. The only alternative would be a constitutional amendment. The situation is, in my view, so serious that I believe we may have to consider such a move, even though I have long opposed constitutional amendments as a general principle. I have been reluctant to suggest such a resolution because I believe the Court is dead wrong on standing and that this is a barrier created by the courts rather than the Constitution. These decisions have overwhelmingly tended to favor the expansion of executive power. I still hope to see a correction of these decisions and much prefer any alternative to a constitutional amendment, which I readily admit is a difficult proposition.

Having a constitutional amendment proposed and adopted is an Herculean task. Under Article V of the Constitution, proposed amendments can becomes effective only if

(a) approved by either two thirds of the members of Congress present or, upon the application of two thirds of all states, the Congress calls for a constitutional convention which proposes amendments

and

(b) any proposed amendment is approved by three fourths of all states.

There’s more, and Mr. Turley does an excellent lawyer-like job of articulating it. In my own view, we have to start somewhere. The old Buckley Rule — support the most conservative candidates (I would add the words “who favor constitutional governance”) who can win –would be a good start; not a finish, but a good start. 

UPDATE:

Mr. Turley did not mention the “elastic” clause of the Constitution, viewed as giving the President authority to do as he pleases when the Congress declines to accommodate him. J. Christian Adams, in an article posted today at PJ Media titled A Defense of the Elastic Clause of the Constitution, says that although non-existent it is cited by some who should know better.

If college students listened to Mark Levin or Rush Limbaugh, they would receive a better American history education than they are getting from their professors. I recently spoke at Emory University, where one student defended all of President Obama’s unconstitutional actions by invoking the Elastic Clause of the Constitution.

Citing the Elastic Clause could indeed justify a wide range of administration actions, except for one problem – it doesn’t exist. But you couldn’t tell that to the student at Emory University who came to my speech last week on Obama’s abuses of power. He persisted in defending the actions through the Elastic Clause, as if the be-all, end-all provision was common knowledge.

From the sound of it, the Elastic Clause must be common knowledge in faculty lounges.

The Elastic Clause, he persisted, gives the president the power to address a wide range of issues through executive prerogative. It allowed the government, he said, to adapt to new circumstances unlike the age when the Founders wrote the Constitution.

. . . .

It’s part of the Constitution that if the Congress doesn’t act, then the president can issue executive orders to fix something,” was her argument.

Even more frightening, the person saying this is an officer of the campus Democrats. A little totalitarian in training.

. . . .

All of this illustrates the dangerous rot occurring on campus, facilitated in large part by the faculty. All signs point to their success. Students are learning the lexicon of the institutional left and producing tragic-comedy like complaining about equality at UCLA, and worse. My appearance at Emory was sponsored by the David Horowitz Freedom Centerand the College Republicans. Recognize that groups like these are fighting an uphill battle on campus. But without them, college campuses would be intellectually monolithic.

Were it not so sad, it would be amusing.

UPDATE:

Here’s a short video of part of Mr. Turley’s remarks to the House Judiciary Committee: