Tag: separation of powers

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Nondelegation and the (Un)Written Constitution

George Thomas

Thanks to Greg for his thoughtful comments—and especially for his generous praise of the book and essay. I agree with him that text and structure very often go together and that unwritten constitutional claims that are rooted in text and structure merit greater deference. Or, as I think I’d put it, are simply more powerful claims. On this, let me highlight the book’s title, which should matter to textualists: It’s the (Un)Written Constitution, because the written text is primary; it is what we are interpreting. But because the written text does not always explain itself, we read the text based on underlying ideas. This … Continue reading Nondelegation and the (Un)Written Constitution

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Nondelegation and the Unwritten Constitution

Greg Weiner

George and I had a brief exchange on Twitter (here, here, here and here) about the nondelegation doctrine, and since The Constitutionalist allows more than 280 characters, I thought it might be interesting to continue it here. George wrote, quite correctly, that the nondelegation doctrine depends on understandings of the separation of powers that cannot be found in the constitutional text. (On the “unwritten constitution” generally, see George’s excellent new book of that title and his essay at this site regarding it.) My question was whether structural arguments are separable from textual ones. In other words, there are unwritten understandings, … Continue reading Nondelegation and the Unwritten Constitution

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Parliamentarian Autocracy and Congressional Mojo

Charles Zug

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

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July 21: The Council of Revision

Greg Weiner

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

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Partisanship and War Powers

Greg Weiner

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

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Conflict, Cooperation and the Separation of Powers

Greg Weiner

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

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A Clarification on the Separation of Powers

George Thomas

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

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Separation of Parties, not Powers?

Benjamin A. Kleinerman

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?