Tuesday, November 21, 2017

Is Trump Restoring Separation of Powers?

ur Constitution carefully separates the legislative, executive, and judicial powers into three separate branches of government: Congress enacts laws, which the president enforces and the courts review. However, when all of these powers are accumulated "in the same hands," James Madison warned in Federalist No. 47, the government "may justly be pronounced the very definition of tyranny." The rise of the administrative state over the last century has pushed us closer and closer to the brink. Today, Congress enacts vague laws, the executive branch aggrandizes unbounded discretion, and the courts defer to those dictates. For decades, presidents of both parties have celebrated this ongoing distortion of our constitutional order because it promotes their agenda. The Trump administration, however, is poised to disrupt this status quo.

Comments

For as much as the Trump administration is a dumpster fire, this has been one aspect that has been a very pleasant surprise. Hopefully some restoration of the separation of powers are achieved in a permanent manner.

#1 | Posted by JeffJ at 2017-11-21 10:26 AM

Oh Trump isn't issuing EOs, claiming to have the right to nuke N. Korea, etc.?

#2 | Posted by danni at 2017-11-21 10:32 AM

--First, Congress should cease delegating its legislative power to the executive branch; second, the executive branch will stop using informal "guidance documents" that deprive people of the due process of law without fair notice; and third, courts should stop rubber-stamping diktats that lack the force of law.

Read more at: www.nationalreview.com

That's exactly what Congress did with the war on drugs. They used to pass legislation outlawing various substances. Then they abdicated their responsibility and gave the power to the DEA.

#3 | Posted by nullifidian at 2017-11-21 10:41 AM

That's exactly what Congress did with the war on drugs. They used to pass legislation outlawing various substances. Then they abdicated their responsibility and gave the power to the DEA.

#3 | POSTED BY NULLIFIDIAN

That's what congress does with pretty much most laws they pass over the past couple of decades.

That's why this is such an encouraging sign.

#4 | Posted by JeffJ at 2017-11-21 12:51 PM

You mean law writing has been outsourced to the donors and their lobbyists.

#5 | Posted by bored at 2017-11-21 05:47 PM

When one man can override the president's authority and undermine the staffing of the SCOTUS, there is no separation of powers. Of course, all that keeps him in power are ignorant constituents and the spinelessness of his congressional GOP colleagues.

#6 | Posted by IndianaJones at 2017-11-21 06:10 PM

For as much as the Trump administration is a dumpster fire, this has been one aspect that has been a very pleasant surprise. Hopefully some restoration of the separation of powers are achieved in a permanent manner.

Sounds good when you say it fast. However, compare McGahn's rhetoric with Trump's action, an executive order, which McGahn likely vetted, on sanctuary cities. In granting a permanent injunction against the order a court found the order violated separation of powers, the non-delegation doctrine and that Sessions internal guidance memorandum wouldn't save the order.

Color me skeptical.

#7 | Posted by et_al at 2017-11-21 09:21 PM

Color me skeptical.
#7 | POSTED BY ET_AL

That Trump understands, or has even read, the Constitution?

I'm with you.

#8 | Posted by rstybeach11 at 2017-11-21 09:32 PM

#6

When one man can [exercise his constitutionally prescribed prerogative and] override the president's authority and undermine the staffing of the SCOTUS, there is no separation of powers.

FTFY

#9 | Posted by et_al at 2017-11-21 10:20 PM

#9

If that's true, where--exactly--is the Legislative Branch enjoined from destroying the Judicial Branch, by refusing to staff it and refusing to fund it? Where does the Constitution draw the line?

#10 | Posted by Danforth at 2017-11-21 11:08 PM

Article III Section 1.

#11 | Posted by et_al at 2017-11-21 11:18 PM

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

That seems to prove my point, not yours. Congress "may" ordain and establish; not a single word of compulsion regarding staffing. The only "shall" refers to the prohibition of reducing pay while in a lifetime office.

#12 | Posted by Danforth at 2017-11-21 11:43 PM

You're deliberately being obtuse. The section provides for "one supreme Court" and such "inferior" courts as Congress may "establish." The second sentence assumes the existence of courts. Minutia (which is what you're really getting at), like many constitutional provisions, about how, etc. is not provided.

#13 | Posted by et_al at 2017-11-22 12:37 AM

"and such "inferior" courts as Congress may "establish."

May also means may not. You still haven't pointed to one word of compulsion.

"The second sentence assumes the existence of courts."

And the second amendment assumes the existence of muskets; so what? McConnell wasn't compelled to fill the SCOTUS seat, and there seems to be no requirement he staff ANY court.

"Minutia (which is what you're really getting at)..."

The difference between MAY and SHALL is not minutia at all. Words are chosen purposefully, for their specific meaning.

"...like many constitutional provisions, about how, etc. is not provided."

So McConnell proved. Again, where would the Constitution specifically have drawn the line if, say, McConnell kept denying a President HRC, as justices dropped left and right?

#14 | Posted by Danforth at 2017-11-22 12:55 AM

Now you're just being silly. Would the text permit Congress to whittle the federal judiciary to one supreme court justice? Yes. Would that happen? No. To argue that it would, as you're doing, is silly and not a discussion I'm interested in.

#15 | Posted by et_al at 2017-11-22 01:20 AM

In granting a permanent injunction against the order a court found the order violated separation of powers

How quaint. When Obama was issuing orders, I don't think any courts looked at them at the time.

#16 | Posted by boaz at 2017-11-23 08:18 AM

"When Obama was issuing orders, I don't think any courts looked at them at the time."

You don't think?

OBAMA'S IMMIGRATION EXECUTIVE ORDERS TO RECEIVE SUPREME COURT REVIEW
www.newsweek.com

#17 | Posted by Danforth at 2017-11-23 08:34 AM

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