The Myth of Coequal Branches: Restoring the Constitution's Separation of Functions
240
The Myth of Coequal Branches: Restoring the Constitution's Separation of Functions
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Product Details
| ISBN-13: | 9780826274212 |
|---|---|
| Publisher: | University of Missouri Press |
| Publication date: | 11/29/2018 |
| Series: | Studies in Constitutional Democracy |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 240 |
| Sales rank: | 550,516 |
| File size: | 1 MB |
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CHAPTER 1
THE PUBLIC FACE OF CONTEMPORARY COEQUALITY
The tendency to use vague allusions to coequal branches was much in evidence during the 2016 election, most notably in regard to commentary on the unique candidacy of Donald J. Trump. Many expressed fear about how an inexperienced and impulsive President Trump might warp US institutions away from coequality. This was true of the open letter written by Senator Ben Sasse of Nebraska, the first prominent Republican politician to repudiate Trump as an unacceptable choice during the nominating process. "Much like President Obama, [Trump] displays essentially no understanding of the fact that, in the American system, we have a constitutional system of checks and balances, with three separate but co-equal branches of government," wrote Sasse. Sasse acknowledged and respected the anger and disappointment of those Trump appealed to, saying that he felt similarly frustrated. As a "movement conservative who was elected over the objections of the GOP establishment," the senator shared the values of many Trump voters. The bottom line for him, however, was that supporting someone who talked "like he thinks he's running for King" was not an option.
If anything, Trump was accused of endangering coequality more from the political Left than from the Right. Harvard Law School's Andrew Manuel Crespo took Trump to task in a Boston Globe editorial for his remarks about the federal judge presiding over the Trump University fraud case. Trump's suggestion that he was being treated unfairly by Judge Gonzalo Curiel, whom Trump called a "Mexican," was "an unprecedented assault on the federal judiciary, a constitutionally coequal branch in the government that Trump seeks to lead." Trump's views violated the respect for multiculturalism expected by Professor Crespo, but Trump's lack of respect for an independent, strong judiciary — one coequal to the other branches — did as well. Crespo's observation shows academics sometimes casually employ the myth of equality along with politicians, journalists, and advocates. These arguments trade on the strength of the public's commitment to coequality, suggesting that any politician who does not respect this equation is dangerous, acting contrary to the Constitution, and not worthy of support. Sasse, Crespo, and many others found Trump wanting because they felt he lacked a basic understanding of the American system of government, including a wish to warp the Constitution's intended balance of power.
Others pushed back against this view. Trump supporters noted that since "we have 3 separate and co-equal branches of government," if Trump won the presidency, "not much at all will change" because "the Constitution remains the same." Instead of being poised in a delicate balance, and in danger of being cast into a dangerous state of disequilibrium, this view conceives of the three coequal branches as robust and durable. The founders intentionally designed the government to withstand an aggressive president or any other rogue institution, so a President Trump was not to be particularly feared. Political scientist Geoffrey M. Vaughan, writing in the American Conservative, theorized that a Trump presidency could actually help reset the balance of power back to what was desired by the founders. Coequality had long since ceased to exist in his view, sacrificed to the ambitions of early modern presidents like Woodrow Wilson and Franklin Roosevelt. "Many conservatives consider the 'imperial presidency' to be progressivism's most destructive legacy." Vaughan believed that a President Trump could inspire deep opposition from within his own party in Congress. This promised a beneficial long-term effect: legislative branch Republicans would organize to reassert legislative power and rein in presidential power. Ironically, then, "the way to reestablish the balance conservatives have been longing for is to elect a man that Constitutionally-minded conservatives think is, himself, unbalanced." The election of Trump would "restore Congress to its intended position as 'first among the federal government's three co-equal branches.'"
If anything, the references to coequal branches have increased since Donald Trump was sworn in as the forty-fifth president. This dynamic was on display in Arizona senator Jeff Flake's scathing speech denouncing President Trump's political approach in October 2017. Flake's stated motivation in speaking out was his faith in the founders' constitutional design. The founders created separate institutions with the intent that Congress might prevent a president from acting the way Trump was, Flake noted. In speaking against Trump, Flake was embracing what he called the "old normal, Mr. Madison's doctrine of separation of powers ... for which Madison argued in Federalist 51." Flake characterized James Madison's vision as one where "the equal branches of our government would balance and counteract ... each other, if necessary." It is no mischaracterization to suggest that Madison believed that the power of each branch could be used to prevent another from usurping its functions. However, this was not Madison's vision of how to enact public policy. Being true to Madison's argument in Federalist 51 would allow Flake to make an even stronger argument: Congress is supposed to predominate. The legislature rightly takes the lead in policy, not the president. That is, apparently, now too foreign or outmoded an idea to have currency among senators. Indeed, the most consistent argument against Donald Trump regarding power is that he has attempted to run roughshod over the other equal branches. A frequent counterpoint is that the other equal branches are up to the task of fighting back.
As with the Clinton impeachment, these arguments demonstrate how widely disparate the positions built on the premise of interbranch equality can be. Some make the argument that we currently have three coequal branches. Others believe that aggressive and unscrupulous politicians have already thrown the branches off their intended balance. Many aver that powerful presidents endanger coequality because of the fragility of the intended constitutional balance. Others posit that presidents cannot possibly unbalance the constitutional system because of the rugged strength of the founders' design. In short, the only consensus about coequality seems to be the hope for its existence and the view that this is what the founders intended. There is no corresponding agreement about descriptive reality — whether the US government currently has coequal branches — or where the government is headed in this regard and why. Despite this indeterminacy, one need never search far for the tidy phrase "three coequal branches of government."
The next section of this chapter demonstrates the ubiquity of the idea that there are three coequal branches in the United States. Following that I demonstrate that this idea has power over our thinking and affects our politics negatively. The presumption of coequality constrains our thinking and negatively affects governance. A third section helps to establish that this change in thinking has been relatively recent. This is demonstrated by a state-level examination of Rhode Island, which jealously and intentionally guarded its legislature's power against the state's other branches until quite recently. It was only in the twenty-first century that two referenda confirming the coequal status of the three branches of state government passed. Next, it is necessary to flesh out the separation-of-functions alternative. I do so by looking at three opinions issued in the 1952 Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer. Today the most famous opinion is Justice Robert Jackson's concurrence, which views the distribution of power in the American system of government as fluid, responsive to political considerations, and highly pragmatic. By contrast, the majority opinion by Hugo Black and a concurrence by Felix Frankfurter are classic expressions of the separation of functions. Their thinking — still fairly mainstream in the 1950s — is now foreign to us. We have replaced the separation of functions and its attendant belief in the branches' "equal constitutional legitimacy" with "equal power coequality."
Equal Power Coequality: Favorable References from Prominent Sources
Currently, assertions of interbranch coequality abound in the United States. All one has to do is intentionally listen for the idea, and its prevalence becomes clear. The vast majority of references to coequality are short and offhand, and they assume that this is the desired state of interbranch relations. Context typically makes clear that the writer or speaker favors coequal branches. This is the case for Barack Obama in The Audacity of Hope, where he wrote: "The outlines of Madison's constitutional architecture are so familiar that even schoolchildren can recite them: not only rule of law and representative government, not just a bill of rights, but also the separation of the national government into three coequal branches, a bicameral Congress, and a concept of federalism that preserved authority in state governments, all of it designed to diffuse power, check factions, balance interests, and prevent tyranny by either the few or the many." In addition to noting that this was a smart design, Obama's comment highlights one great allure of this concept: it is simple. Everyone believes that they know what being equal means without giving it much thought. Since the concept requires no explanation, it can be taught easily, even to young children. When the president himself uses the idea, as Obama did on several occasions, he is acting as the nation's "teacher in chief" on the subject of the proper relationship between the branches.
Hearing that there are three coequal branches is something that often comes from "official" or government sources. Take, for example, how each of the three branches has described itself in recent times. The Supreme Court's website weighs in by describing the High Court's building as "majestic in size and rich in ornamentation ... the manifest symbol of its importance as a coequal, independent branch of government." A section of the Obama White House's website titled "Our Government" noted that "to ensure that no person or group would amass too much power, the founders established a government in which the powers to create, implement, and adjudicate laws were separated. Each branch of government is balanced by powers in the other two coequal branches." It proceeds to describe Congress as "one of three coequal branches of government ... ascribed significant powers by the Constitution." The short orientation film shown at the US Capitol Visitor Center describes Congress as one of "three equal branches of government."
With all the assertions of coequality made by official sources, it is no wonder that public officials are critiqued on the basis of whether they have conformed to this standard. Editorialists on both the Right and the Left weigh in to a wide readership that their political opponents do not respect the other coequal branches. For example, an editorial by Kyle Wingfield in the Atlanta Journal-Constitution of November 21, 2014, prodded Republican members of Congress to assert themselves meaningfully against President Obama in an article titled "Don't Tell Obama the Congress Is a Co-Equal Branch; Show Him." Wingfield suggests that filing a "lawsuit that won't work" and continuing to "talk, talk, talk about how they collectively are the president's equal" has proved ineffective. Instead, a more proactive approach should be taken, including defunding the more extravagant aspects of the modern presidency, like Air Force One. In Wingfield's view, downgrading President Obama's lifestyle would have forced him to recognize Congress's equal status.
During the presidency of George W. Bush, liberals did more complaining than conservatives. In his blog affiliated with the New Yorker, Hendrik Hertzberg expressed exasperation at both George W. Bush and the press. His hackles were raised by a New York Times article. The article stated that George W. Bush never fully understood that "Congress considers itself a coequal branch, and its leaders expect to be treated that way." Hertzberg's exasperation centered around the author's choice of words, specifically the idea that Congress "considers itself" coequal. "Considers itself?" Hertzberg responds indignantly. "Considers itself?" he repeated with emphasis. "Has it come to this? Are we now to regard checks and balances as a vanity project of preening congressmen?" To Hertzberg the problem with the New York Times's story is that Congress's equality is not simply known or assumed to be true. Congress is a coequal branch, regardless of what anyone thinks. The lack of understanding that Congress is the president's coequal pains Hertzberg because of his objection to George W. Bush's aggressive presidency, which he believed endangered the Republic. Hertzberg equates checks and balances with coequality, not even bothering to argue the point, because it is self-evident to him.
Blistering commentary is not restricted to the president. While running for president in 2012, former Speaker of the House Newt Gingrich leveled the charge of not respecting coequality against the federal judiciary. One Gingrich campaign theme stressed that the federal judiciary was out of control, exerting too much power over American politics in matters like same-sex marriage and national security. Gingrich's stump speech complained of "elitist judges" with "radically un-American views" and said that as president he would work to eliminate certain courts and potentially even refuse to heed judicial decisions. In Gingrich's appearance on CBS's Face the Nation, host Bob Schieffer pressed him to discuss how this would work in practice. The former Speaker responded, "You're raising the core question, are judges above the rest of the Constitution? Or are judges one of the three co-equal branches?"
Gingrich rejected the idea that the Court has final say over what the Constitution requires. He did not assert presidential primacy over constitutional interpretation in its place but a novel idea: any two branches could, in effect, cancel the extreme behavior of a rogue branch. "It's always two out of three," related Gingrich. "If the Congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the Congress loses. ... [T]he founding fathers designed the Constitution very specifically ... to have a balance of power — not to have a dictatorship by any one of the three branches." This is an interesting theory, but just like the concept of coequality itself, it is not based on any explicit constitutional language. There is no clause stipulating that if the president and the Supreme Court agree with each other, they can cancel out what Congress wishes to do, for instance. That may occur in practice, especially in matters of constitutional dispute, but that result stems from tradition, the superior ability of the president to mold public opinion, and the comparative ability of each branch to effect its will rather than the Constitution's words.
Note, however, the tension between Gingrich's view and other widely accepted ideas about what defines constitutionality — such as the Constitution's words, or the considered precedents of the Supreme Court, or an assumption implicit in the myth of equality — that all branches must agree for an idea to prevail. More often commentary about the judiciary runs in the other direction. State and federal judges often write that the judiciary struggles to maintain its coequal status.
Coequality is used as a standard for interbranch relations by liberals and conservatives alike. But not everyone agrees. A systematic search turns up individuals who object to the idea. Those who do are often self-described conservatives writing in fringe media outlets or private blogs. Take Joseph Farah, an online syndicated columnist best known for starting the rumor that President Obama was not born in the United States. Farah devoted a column to coequality in February 2014 that began by quoting Barack Obama's pledge to treat Congress and the courts as coequals. The founders intended no such thing, Farah replied. Since the legislative branch is the only branch with the ability to make laws, "Congress was designed to be the most powerful branch." A Harvard Law School graduate and law professor like Obama should know better, but the president's position was no mistake. Coequality is "a mantra among those who would like to rewrite our Constitution or ignore it altogether," particularly progressive forces that aim to have a much more active government than the founders intended. Self-interested politicians are not the only ones who champion the myth of equality, according to Farah. "Schoolchildren are misinformed every day that we have three co-equal branches of government. I admit that it is something of an article of faith. But it is a dangerous deception, one of many that must be shattered if we are ever to re-establish our constitutional moorings."
(Continues…)
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