So I'm posting this with not inconsiderable apprehension. I'm aware of the percieved hubris of a foreigner questioning the accepted theory and quasi-religious holy aura with which most Americans hold their Constitution. My faith in Kossacks is such that you'll be able to look past that, and deal with the substance of my argument.
This diary is the analysis of the US constitution by an outsider, in my case, a Canadian. It expresses my surprise at the commonly held belief in 3 "co-equal" or equal branches of the US government. Funny enough, not only am I positive that the 3 branches are distinctly unequal, but that it would be more accurate to talk about there being four branches of government in the US and A.
More on that later, first, if you had to pick one, which branch would you say is strongest? Most people would choose the Executive. Commander-in-chief of the military, veto-power, pardons, appointment of Judges, "deciding" - he's a powerful character. No doubt about it. But is the Executive actually the most powerful branch? Nope, not even close. Let's see how Congress is dominant when using the full reach of their powers.
The Weak Executive
That last is a key distinction. There is no arguing that in the "normal" state of affairs in America over the past 100 years, and most certainly since the advent of television, the Executive has more direct impact and influence on the course of the Nation. Having studied America at a post-secondary level, political scientists call this a period of "Executive dominance." I won't get into the history of it, but there are periods where Congress really ran the show, and the Executive acted more like a Superintendant running a building on behalf of the Owners. So I ask you now to ponder Congress' latent powers, seldom exercised, and I think we'll see they can smash puny Executives like Bruce Banner turning into the Hulk: Only when enraged. What we have today is a situation where the Executive has succeeded in begging, borrowing and bullying many powers rightly owned by Congress. But just because I give someone Power-of-Attourney to run my affairs, by my choice I can revoke same on a whim.
Not convinced? Let's lay out some specifics, and try and read between the lines of the US Constitution a little to infer a bit into what the Founders might have intended just by rereading a few clauses.
The President's Powers (or lack thereof)
First off, let's recall that the President can't legislate. He can't initate a bill, and constitutionally, he has no role in crafting them. He can't make anything happen in Congress (other than convening it a session of it). Further, he has absolutely no say in how Congress is chosen, the individual States do that by running elections. Why point that out? Because the reverse is not true: Congress actually has a ton of say in choosing the President. They meet in a Joint Session to certify the Electoral College and count their votes. If one member of each house object, Congress even needs to go debate the validity of the election itself. Already, they're not looking so equal. And in all this, what role is there for the Executive? Ah, the Vice-President.
My country has contrived for me the most insignificant office that ever the invention of man contrived or his imagination conceived. -John Adams
Yes, the VP does Preside over both the Senate, and the special Joint Sessions of Congress where the Electoral College silliness happens (normally the Speaker Presides over Joint Sessions). You could probably spin something into that about co-equal branches, and the powers of the Executive even in choosing its own replacement. Except you would be spinning, because the VP's role in congress is almost purely ceremonial. There is a reason very few VP's ever bother to show up and actually Preside over the Senate on even a semi-regular basis: Because the role is powerless and therefore boring and pointless. See, the VP only gets to vote in the rare instance of a tie. When he Presides over that Joint session what real powers does he have? He can't overturn the election, and if no candidate gets a majority of the Electoral college, Congress splits back up to pick the Executive then, and even then the VP's role is limited to the Senate, where in this rare circumstance, the House picks the President (which means the sitting VP has no role), and the Senate picks the VP.
So here's where I get speculative: Why is the VP a member of Congress at all? Doesn't this violate the principles of separation of Powers, I mean, the VP in theory could have divided loyalty. What if a VP held his Senate duties more highly than being VP, and betrayed his President? Unlikely, but the reverse is certainly not. But he's not really a full member of Congress (else we would talk about the 536 members of Congress), and he gets to lead the body of Congress in which the role of Presiding is substantially less powerful. President of the Senate is nothing like Speaker of the House. My guess, is that he's there to guarantee Congress doesn't outright lock the President out. There's nothing that says the House has to ever listen to the President, take his calls, or even let him or his staff even enter their offices. They can meet in closed session, and he has no power over this. So give the VP a mostly ceremonial role, and thus give the executive a foot in the door at Congress to at least know what is going on.
Let's remember that at time of founding C-Span was hardly in anyone's dreams. It's quite plausible the President would quite often be surprised by Congressional moves, and this at least puts his man on the ground in one house, to see what they're up to. Since both houses have to pass a bill for it to become law, there's no real need for an Executive agent in both Houses. Anything the House passes will have to go through the Senate anyway.
That segues to another interesting item in the Constitution, on the subject of information flowing between the branches: The State of the Union. Today, this takes the form of a big national cheering squad and the President setting his Agenda forth. I don't read it that way at all in the Constitution. Let's review the clause:
Section 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient;
See, nothing in there says it has to be a grand address on National TV. In fact, I think we can interpret it like this: "The chief-engineer shall tell the Captain of the Ship how the hull and engines of the ship are doing, and make recommendations about their improvement for his consideration." It is a subordinate reporting on his area of responsbility to his superior. Not a commander leading everyone towards his grand vision. In fact, we still see this in the fact that Congress has to invite the President to Congress to give the SOTU. If that invitation wasn't given, he couldn't enter the chamber to give the Speech. And it is significant the speech is given in Congress. Their turf.
But wait, it gets even better. Remember how the Congress has a lot of input into the selection of the Executive? They don't just help pick him, they help pick his staff. Talk about micromanagement! The Senate gets to approve or reject the President's own cabinet, whereas note that the President doesn't have any say over the officers of Congress (in fact, he can't even fire his own VP). Hardly a "co-equal" arrangement. Sure, he gets to pick the Judiciary, but pfft, they're the weakest Branch anyhow. In the event that the VP needs to be replaced between elections, suddenly the Executive needs both houses to approve his nominee for VP. Meanwhile, Congress itself gets to decide over sitting its own Members. Congress also gets to decide which Officers of the Executive need the Senate's approval. Further, Congress has the sole power to remove the Executive plus any of his Officers (and any Federal Judge, to boot).
Going back to the bit earlier about the VP's ceremonial role in Presiding over the Senate, not so if they're a' impeaching his boss. The Chief Justice of the Supreme Court runs that spectacle. So even there the Executive has no control whatsoever over the process, not even ceremonial (Strangely he might Preside over his own impeachment though).
Should they succeed in impeaching him, (and his VP), guess who takes over? Not his Cabinet, no, but the Speaker of the House, and after that, the President Pro Tempore of the Senate. Almost like the Chair and Vice-Chair of the Board of Directors might personally take over a company after firing the CEO, rather than trusting one of his subordinates to take over.
All of this leaves one with a Legislative branch that really runs the show. I mean, if Joe can block Fred from being hired, make Fred report to him on his job performance, control the hiring of Fred's subordinates, decide which if any of Fred's projects to fund (man I almost forgot about the power of the purse!), and even fire Fred or any of those subordinates, who would you say was the higher rank in that situation?
The Actual Executive Powers
So what about the massive Executive powers? Well, the only one I can think of he has which really qualifies as a "check" on the powers of Congress is the veto. Yes, it is substantial that one person can block the will of the majorities of both houses of Congress. In fact, in theory a veto could stymie the will of up to 501 members of Congress (if the house was unanimous for a bill, and only 66 Senators voted for it, the Exec could block it). But here we get back to my statement about Congress being Bruce Banner. Sure, you can beat up Bruce Banner, and he'll even try and avoid turning into the Hulk, but once he does, Hulk Smash! So it is with the veto. Congress can veto-override the shit out of the Executive if they have the will to. Equal, my ass. Great example, post Watergate, the Freedom of Information Act was passed over Ford's veto, one of 12 bills congress stapled to the Executive's forehead over his objection.
It doesn't fit anywhere, but since we're talking about the Constitution here, it's worth noting that the Executive has no role whatsoever in proposing or ratifying Amendments. Congress does though.
After that, as you read the constitution, you're left with a list of powers the President has, and in all but one case Congress is given a significant abiltity to block the Executive from acting unilaterally with that power (Pardons and recess appointments are about the only things of substance he can do unmolested - unless you think receiving Ambassadors is significant. Actually, even Recess Appointments can be prevented by Congress so long as they don't go out of Session for 10 consequitive days). He's Commander-in-Chief of the military (a key distinction lost to far too many), sure, but Congress gets to decide when and if the country goes to war. Further, they have to re-authorize the budget for his precious Army every 2 years. Meaning every Congress. It's even easier for them, since they have to pass a reauthorization of the military, so it's not like they need to repeal an act over the Executive's veto. If they choose not to pass a bill, the Executive loses his Army. Ok, I know in modern terms no Congress is going to fail to re-authorize the US Army, but that's not the Constitution's fault, and even if it has become a rubber stamp, they still have this power for serious emergencies, like say if a President ignored posse comitatus, and imposed Martial Law using the Army.
We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens...[E]ven the war power [of the President] does not remove constitutional limitations safeguarding essential liberties. - Sandra Day O'Connor, Hamdi v Rumsfeld
He can enter into treaties, but again, needs the Senate to bless it. You might point out some shit here about "Executive Agreements" and "Congressional-Executive Agreements" both of which have lower bars than a 2/3 vote in the Senate, true. The Executive can't do anything in an Executive Agreement that he would need Congress' approval for if it were a purely domestic issue anyway. If Congress really didn't like an Executive Agreement, they could pass a law against it anyway!
None of this is to say there are no checks on Congress. Just that, by my count, only 1 check on Congress' power rests with the Executive, that of the Veto. The other checks are in the Constitution itself (such as the prohibition on bills of attainder), the Bill of Rights, or come from the Judiciary or occasionally the States.
A Fourth Branch?
Incidentally, if you're wondering, I think the States are the "Fourth Branch" of government. I don't know why they aren't described this way, but considering they have certain formalized powers in the US Federal government, and are listed in Article IV in direct succession with the well-known three branches, they're more than just bystanders to its function. We nearly saw the 4th Branch overturn the new Democratic Senate Majority had Sen Johnson died in North Dakota in December. Plus they're needed for Amendments to the constitution, and they run the elections for Congress and choose the Electors for choosing the President. I certainly wouldn't put them as a "co-equal" branch, and in fact, I'd say the branches are in order of powers in the Constitution. That Congress is Article I is no accident. I guess this Fourth branch stuff isn't really all that relevant here, but I figured while I'm going whole-hog challenging dearly held myths of the US system of government, I may as well keep going.
So the short of this is to challenge the meme of 3 "equal" or "co-equal" branches of government, they're not and they weren't meant to be (and in my opinion there's more than 3 branches anyway!) This notion of equity between Congress and the President is just polite fiction, and actually, destructive fiction. There is a reason the majority of Presidential democracies fall into dictatorship, and for America to avoid this fate, it would be safer to treat Congress as the supreme voice of Government, in fact and in theory. The President has his place, and powers, and I'm not ready to say those powers as spelt out should be changed, but that Congress needs to re-assert its powers as written.
So much of what's going on today about war-powers, signing statements and the general secrecy of Bush's Administration could be rememdied in some unconventional ways. Often the suggestions amount to fighting Bush on his own turf. Congress doesn't necessarily need to attack things like signing statements directly, but rather just start exercising its other powers blatantly, as a kind of intra-governmental filibuster to annoy the President until he comes into line. Cheney and Gonzalez think that impeachment is the only way for Congress to reign in an Executive. They're wrong. I am definitely not going to argue against Impeachment, I think it would do much to restore America's status in the world, but I also believe Congress can find other ways to punish Bush. The idea is to stop viewing each fight in isolation, and stop fighting each battle head-on. In a non-violent dispute between nations, often you will find supposedly non-linked responses to one nations' perceived violations by the other. So if your country puts an unreasonable tariff on my largest export, you might find your citizens get strip searched a lot more often when crossing my border, or my country might start a set of harrassing investigations into the major companies from your country operating here. Congress can do the same. Bush "amends" a bill via signing statement? Deny funding for champagne or air conditioning at State Dinners. Subpoena his cabinet daily, and ask them inane questions about trivial subjects like gardening or fishing. Do so publicly and explicitly, making it clear why. Congress can make Bush's life hell, and they can do so in a myriad of ways that don't harm the national interest, or put lives in jeapordy. Petty? Seemingly, but the stakes are too high not to try.
So crack that whip, Dems. You're not supplicants and you're not peers. He works for the People, and you're they're Representatives - ergo, he works for you. I have heard of vague nonsense about tyranny of the Legislature, but like the nonsense about "legislating from the Bench" and "activist courts", it is just that: Nonsense. Show me a country that went off the rails because its democratically and regularly elected, constitutionally limited legislature went "nuts" and passed all kinds of tyrannical laws. Even if that was to happen, I see no good theoretical reason to believe that the Executive branch of any government is the best suited one to prevent that outcome. After all, the Executive would be charged with enforcing all these tyrannical laws passed by Congress, and that makes him more powerful anyway. I mean, what it amounts to is arguing that the Police are the best check against the criminal code becomming too strict. And sure, individually Police may feel certain laws are stupid or too far reaching, but history suggests the guys who enforce abusive laws are rarely the strongest voice for repealing them. Even if you think of specific regrettable Congressional actions, like the Terri Schiavo mess, the Executive wasn't exactly the sane voice of Reason there anyway. The check on that nonsense we just saw last Novemeber. As Kos has pointed out, the Schiavo debacle turned a lot of libertarian voters away from the Republican party. Schiavo likely cost the Republicans seats in 2006.
So "tyranny" of the Legislative branch? Congress run "amok" over the Executive's perogatives? Bring. It. On.
Great is the guilt of an unnecessary war. -John Adams