Back in June, the Senate Parliamentarian told the U.S. Senate that it lacked the power to pass multiple pieces of legislation through the Budget Reconciliation Process in one year. Instead, Senate Democrats wishing to circumvent the filibuster in order to pass Democratic Party priorities would only get one shot to do so this year. The Reconciliation Process, wrote the Parliamentarian in a 4-page opinion, should only be used “in extraordinary circumstances” and not as a routine procedure. Today, Senate Democrats are once again bellyaching about the possibility that the Parliamentarian will rule against them, this time regarding the debt ceiling. … Continue reading Parliamentarian Autocracy and Congressional Mojo
July 21 witnessed an abortive attempt to revive the Council of Revision, which would have empowered a panel of Supreme Court justices and the President to veto Congressional bills. Curiously, James Wilson and James Madison—the Convention’s and, later, The Federalist’s foremost advocates of the separation of powers—were also champions of the Council of Revision. Both said on July 21 that it would involve judges in vetoing laws on both Constitutional and policy grounds. Wilson argued that judicial review after bills became law was insufficient: Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may … Continue reading July 21: The Council of Revision
Jeffrey K. Tulis is Professor of Government at the University of Texas at Austin. He is a regular contributor to The Constitutionalist. Michael McConnell has published an important new book that should be of interest to readers of The Constitutionalist. The President … Continue reading Executive Power Under the Constitution
Greg Weiner is Provost and Vice President for Academic Affairs at Assumption University. He is also a Visiting Scholar at the American Enterprise Institute. He is a regular contributor for The Constitutionalist. The June round of Supreme Court decisions will help reveal … Continue reading Principle, not Institutionalism, at the Supreme Court
The decisive test case for the separation of powers is whether members of Congress will defend their branch of government even if a president of their own party occupies the White House. Might such a willingness be brewing? A story in The Washington Post reports that several Democratic members of Congress who pushed to reclaim legislative war powers under former President Trump are persisting under President Biden. The most encouraging explanation of their intentions came from Democratic Senator Tim Kaine of Virginia, who promised “civil dialogue” with the White House on matters like repealing the post-9/11 Authorization for Use of … Continue reading Partisanship and War Powers
Three distinguished scholars of the presidency—John A. Dearborn, Desmond S. King and Stephen Skowronek—published an intriguing essay at The New York Times this morning about taming presidential power. Their case is that constitutional combat between Congress and the President favors executive power. Instead, they write, Congress should “assert its capacity to engage the president and the executive branch in ways that foster cooperation in issues of governance.” The authors note that Congressional attempts to play hardball on the separation of powers have tended to trigger backlashes: Presidents have responded by asserting executive power, and their control over the executive branch, more stridently, and the … Continue reading Conflict, Cooperation and the Separation of Powers
I agreed with Ben’s essential point that within the separation of powers we can expect President Biden to have a somewhat different perspective on executive power than candidate Biden or, especially, Senator Biden. That point was about the institution shaping the occupant of the office. That’s embodied in Madison’s famous line about the interests of the office holder being connected to the “constitutional rights of the place.” I am skeptical, however, that this understanding of the separation of powers captures our contemporary Congress. Ben takes heart that even while Republicans were reluctant to resist President Trump, the fact that they … Continue reading A Clarification on the Separation of Powers
Both George and Greg suggest that my separation of powers argument concerning Biden’s air strikes doesn’t square with the fact that political parties have replaced the separation of powers. I agree with them that this has now become the conventional opinion regarding the separation of powers. And, as they rightly note, the dominance of parties over powers is especially clear during unified control of government. The majority party in Congress doesn’t assert its institutional rights very strongly if it also controls the Presidency. That being said, I think this argument is somewhat overstated. Ultimately, it depends some on thinking of … Continue reading Separation of Parties, not Powers?
Ben Kleinerman has made a compelling case that the partisan reversal on constitutional authority for U.S. airstrikes in Syria shows the separation of powers at work. I have a friendly amendment, or at least one to propose: Ben’s case is true with two qualifications. First, the reversal should be institutional, not partisan. That is, members of Congress should question presidential authority as members of Congress, not based on partisan alignments for or against President Biden. If Democrats and Republicans who stay in Congress across changes in presidential administrations are situational constitutionalists based on who occupies the White House, Madison’s case … Continue reading Syrian Airstrikes: A Friendly Amendment to Ben Kleinerman’s Post?
In the wake of Biden’s air strikes against Syria, many of his opponents are returning to statements he and Kamala Harris made critical of Trump for similar kinds of strikes. Although I understand the inevitable politics of these things, I would suggest that we’re witnessing the separation of powers succeed. As President, Biden has a different set of responsibilities than he did as a presidential candidate or as an opponent of the past President. Given this difference, it shouldn’t surprise us that he is behaving differently. The Constitution itself induces and even encourages such hypocrisy. Senators have certain kinds of … Continue reading Syrian Air Strikes and Presidential Authority