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