In Civics 101, we learn about the venerable mainstay of democratic republics—the separation of government into Legislative, Executive, and Judicial branches. Properly employed, this separation should result in a beneficial “balance of power,” preventing usurpation of power by any particular branch. Working as expected, the legislature makes the laws, the executive enforces them, and the judiciary interprets the laws, and decides whether they apply or not in specific cases.
The ideal of such separation dates back to principles laid down in Book XI, Chapter 6, of The Spirit of the Laws, by the French political philosopher Charles De Montesquieu (1689-1755), who pointed to the English constitution as the closest approximation at that time to the ideal. During the 18th century Enlightenment, this idea gained currency, leading the German philosopher, Immanuel Kant (1724-1804) to proclaim (over-optimistically) that with a constitution incorporating such a balance of powers, “the problem of establishing a state is solvable even for a nation of devils, if only they have intelligence!”
Montesquieu’s theory influenced the plans of the American Founders. James Madison, in The Federalist Papers #51, extolls the tripartite separation of powers as a type of competition in which each branch actively forestalls any overreach of power in the other branches:
The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.
Chaotic developments ensue when one branch of government either encroaches on the prerogatives of another branch, or does not fulfil its designated constitutional purpose. A salient example of encroachment would be the Roe v. Wade and Doe v. Bolton Supreme Court decisions, which did not just discover some allegedly Constitutional “penumbras of privacy” protecting abortion, but in effect have functioned like the “law of the land” for decades—although it is the legislatures, state and federal, that have the legal authority to make such laws.
A recent example of non-fulfillment of constitutional purpose by Congress came at the culmination of legislation about Obamacare, when pro-life members of Congress moved to include Hyde-amendment abortion restrictions. Because of opposition to the amendment on the part of fellow Democrats, Representative Bart Stupak, who held the deciding vote, decided to compromise. Trusting that the promise of an Executive Order by the President could take the place of the proposed amendment, he cast his vote, and Obamacare became law, with vague and hardly credible assurances that the abortion restrictions would be honored by the most pro-abortion president ever elected in the U.S.
President Barak Obama himself, as chief executive, probably holds the record for acts involving either failure to enforce laws, or acts encroaching on the powers of the other two branches.
Failure to enforce laws:
§ The Defense of Marriage Act (DOMA), which maintained the traditional idea of marriage, was passed by Congress in 1996, and signed into law by President Bill Clinton. But Obama, personally opposed to the law, ordered non-enforcement of DOMA in February, 2011, thus paving the way for federal recognition of same-sex marriages.
§ In spite of the President’s promise to maintain the Hyde Amendment through an Executive Order in implementing Obamacare, the recent HHS mandate, which requires private insurance coverage of contraception, abortifacient drugs, and sterilization, even by those with religious objections, breaks the promise. In a recent Democrats For Life (DFLA) meeting, former representative Bart Stupak, whose pivotal support of Obamacare had depended on the Executive Order, commented: “I am perplexed and disappointed that, having negotiated the Executive Order with the President, not only does the HHS mandate violate the Executive Order but it also violates statutory law.”
Acts encroaching on prerogatives of the other two branches:
§ The DREAM Act (legislation for the Development, Relief and Education for Alien Minors), which Obama proposed to Congress, and which would have done away with the illegal status of certain immigrants who came to the U.S. as children, was defeated in Congress in 2009. But Obama, going over the head of Congress, decided to implement a portion of the DREAM act himself. On June 15, 2012, through a memo from Janet Napolitano’s Department of Homeland Security, he offered legal status to many illegal immigrants under the age of 30. Congress, which has the authority over immigration law according to Article 1, Section 8, of the Constitution, has thus been “trumped” by the Executive branch.
§ The HHS mandate not only fails to enforce Hyde Amendment guidelines regarding government funding for abortion, but also, for all practical purposes, enacts a law requiring private funding of abortifacients such as the early abortion drugs Ella and Plan B, even by institutions or corporations whose leadership maintains strong religious objections to such drugs.
But the law is strategically nuanced, since it is put into the category of ANPRM (Advanced Notice of Proposed Rulemaking)—postponing the implementation of the law, and penalties for infractions, to the future. This tactic is geared to avoid interference from the courts. Since the mandate is not currently being enforced and causing distress, cases objecting to it do not have the “ripeness” which is usually required for court rulings. By removing the application of the mandate to the future, the Obama administration presumably hoped to avoid numerous court challenges to the mandate—which, incidentally, would have been distracting and irksome prior to the presidential election! (In the aftermath of the election, however, a preliminary injunction against the mandate has been issued by the Eighth Court of Appeals, clearing the way for one of the lawsuits to continue. Other temporary injunctions may be pending.)
At the time of inauguration, the President takes an oath of office: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” The Constitutional mandate for the President is to enforce the laws, without encroaching on the law-making powers of Congress or the interpretative prerogatives of the Judicial branch. The brief list of examples given above offer contemporary evidence that, as Madison observed, in order to maintain the “balance of power,” each of the three branches must aggressively protect its own prerogatives.
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