The Corner

Separation of Powers Is En Vogue Again

I’ll happily admit to being a broken record on the importance of separation of powers. I am by no means an agnostic on questions of policy — far from it — but, ultimately, I care about process more than anything else. As James Madison understood so well, the neutral application of principle is the prerequisite to any functioning republic; without it, we have power and nothing else besides. Can it be frustrating to watch your “team” being blocked by the dissenters — especially when it is trying to advance something you care about? Of course it can. But is it worth it? You’re damn straight it is. At least, it’s worth it providing that the system is respected by everybody. Because we do not know who might come to office — and because our views and interests will not always be in line with the transient opinion of the majority — it is rational to oppose the concentration of power. Today your friends ride high and the levers of state are operated by saints. But tomorrow?

For the last six years, alas, this view has not been fashionable. Indeed, those who express it have routinely been accused of masking their own self-interest. Time and time again in making the case for Congressional power, we have been charged with “justifying obstructionism,” of “blocking the mandate,” of “preventing governance.” Critics of Obama’s executive actions have been called “racists,” “hostage takers” and “fetishizers” of an “outdated” system. For exercising its constitutionally enumerated powers within the Congress, the Republican party has been deemed the “Party of No.” A few weeks ago, asked about the prospect of divided government, Nancy Pelosi went one further: “Checks and balances,” she said, were “code words” for “obstruction.” Her message? That nobody cares about process, except as a cover for their deeper policy objections.

But how strange the change from majority to minority! Only a few minutes passed between Donald Trump’s victory and the arrival of a newfound respect for Madisonianism. Everywhere on the Left, I saw the same thing last night: We’re going to need Madison now, cried horrified Democrats! “The *real* test of American institutions starts now,” argued Chris Hayes. “Hope the Congress and courts and other checks and balances actually function,” wrote Josh Greenman. “Hope they function like never before.” In the New Yorker this morning, Ryan Lizza argued—music to my ears!—that “Congress would be wise to regain its proper place as the first branch of government, at least when it comes to serving as a check on a power executive.”

Uh huh.

Don’t get me wrong: I agree. I agree wholeheartedly. I’ve been a staunch critic of Trump’s, and I certainly don’t intend to stop now. But where the hell was this over the last six years?

It seems to me to be the case that progressivism doesn’t believe in neutral rules, applied equally to everybody, but rather sees the Constitution as providing a set of optional tools that can be used on a case by case basis. Obama? Trustable, so no need to respect Congress’s prerogatives or the limits placed on the executive. Trump? Dangerous, and in need of checking.

But that’s not how it works. That’s never been how it works. Presidents do not exist in a vacuum, and nor do their powers. What you expand today, you bequeath tomorrow. Perhaps the election of Donald Trump will be the harsh wake-up call that the advocates of ever-more-powerful government need? Perhaps, finally, the advocates of neutral rules will be treated as more than just expedient partisans? Perhaps President Obama could use some of the next two months working with Congress on a package that would limit presidential power, and, in so doing, leave his office a better place than he found it. Perhaps, perhaps, perhaps.

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