The President and Separation of Powers

I begin this post with a disclaimer: while I am generally concerned about economic issues in this country, my greatest concerns in regards to the upcoming election revolve more around problems of abuse of political power and the likelihood (or lack thereof) that these will change in any way with the next election, regardless of the victor. I suppose that this makes me pessimistic (or as a friend says, realistic), but the hope I see of any short-term relief from a Romney / Ryan victory in terms of expansion (and abuse) of federal power is tempered by the performance of both men in their political careers.

As a modern Federalist and one who believes in strict separation of powers, I view with some alarm the steps taken by the current President, with or without collusion of Congress, to increase Executive branch power. The examples of such actions are legion - the refusal to enforce the Defense of Marriage Act, re-ordering payments to creditors when assuming control of GM and Chrysler, such that unsecure debtors were paid first (see, e.g., The Freeman article here), contrary to bankruptcy law, gaining (accepting!) the power to detain United States citizens without trial (see, e.g., here), expansion of the branch through passage of "Obamacare", and warring in Libya without any sort of authorization from Congress. These are just a few of the ways that this President has expanded the power of the Executive branch, both constitutionally and unconstitutionally.

However, while cries concerning the economy are loud, and this may yet be this President's undoing, few people, it seems, of any class, are truly concerned about the expansion of federal power. I believe that there are several causes for this. Certainly, lack of civic education and lack of media reporting or discussion of these issues are among them. But, I believe that a far greater cause is that the citizenry, for the most part, do not care that the President's power is so greatly increased - they only care whether the President is advocating for the ideas they find most important - such as pushing for Congress to pass bills to increase health care for the poor or expand military spending or save the environment. Questioning whether the President should have certain powers, or does exercise unconstitutional powers, is rarely discussed, and then only to dismiss such considerations as "radical" in some manner.

In looking at Mitt Romney, here is a man who presided over a massive expansion of government-provided health care in Massachusetts (increasing coverage but massively increasing costs as well). Rumor has it that the federal health-care plan is based substantially on the Massachusetts plan. In regards to Paul Ryan, he voted for the NDAA (see "infinite detention", as discussed above), stating "This bill affirms the military’s ability to lawfully detain individuals who are engaged in armed conflict with the United States and establishes new requirements for military custody in cases where foreign terrorists are caught in a plot to attack the United States" and noting that it was not the case that bill allowed detention of American citizens at the President's whim. That interpretation is up in the air (see, e.g., Volokh's Anderson).

However, more than their previous actions, Romney and Ryan have fully employed vocabulary that indicates comfort with roles as superlegislators - as proponents for major legislations and executive action, as executive "bullies", so to speak, who see themselves charged with making Congress act. The number of speeches promising to cut government spending, reduce the size of government, "fix" the economy - all things  committed to the Legislative branch, to those charged with making (or unmaking) laws. For instance, during his convention speech, Romney attacked Pres. Obama in many ways, but had this to say: "His $716 billion cut to Medicare to finance Obamacare will hurt today's seniors and depress innovation in jobs and medicines.  And his trillion dollar deficits, they slow our economy, restrain employment, and cause wages to stall." Congress ought to share in the blame, as Congress is responsible for all of these problems. Pres. Obama, despite being a cheerleader, has no power to cause or overturn legislation creating these problems.

Romney then gives me little hope that he intends any greater constitutional restrain than Pres. Obama. He followed up the previous statement concerning Pres. Obama with the comments such as:

"[W]e will give our fellow citizens the skills they need for the jobs of today and the careers of tomorrow.  When it comes to the school your child will attend, every parent should have a choice, and every child should have a chance.


[And] to assure every entrepreneur and every job creator that their investments in America will not vanish, as
have those in Greece.  We will cut the deficit and put America on track to a balanced budget."

These claims from among many others in which a President (or government generally) has no business. Certainly, things Romney said in his speech are true, good, and accurate. But, few constitutionally committed to the Executive. The President must face tremendous temptation to act first, then check for constitutionality of his actions later (see: DOMA). Once, however, Presidents are permitted to begin acting as legislators, and are encouraged to do so by the citizenry, Congress is superfluous and checks and balances are unnecessary, as the President will no longer be one branch, but two, or perhaps, three.