Paul Pillar

Messing with the Separation of Powers

An article by Charlie Savage in Thursday's New York Times highlights how lawyers in the executive branch enable their bosses to circumvent certain Congressionally imposed constraints on their activities. The mechanisms employed include opinions issued by the Justice Department's Office of Legal Counsel regarding the unconstitutionality of legislative provisions, sometimes coupled with presidential signing statements and often citing precedents established by previous administrations, even ones of a different party. The issue the article focuses on is the propriety or impropriety of executive branch lawyers citing each other as a way of effectively nullifying some Congressional actions, with the courts shut out of the matter because the subjects of the legislation are ones on which no one has standing to file a lawsuit. The issue deserves attention, as does the related one of the abuse of signing statements, as practiced most conspicuously by the immediate past administration, in which questions of constitutionality are not even invoked but instead an administration says in effect that it will not execute part of a statute simply because it doesn't happen to like it.

Another important issue that the article does not address, however, is what business Congress has in enacting some of these constraints in the first place. Some of them are not only clear encroachments on executive power but a hamstringing of the executive's ability to perform its normal functions. Earlier this week I wrote about one particularly egregious example that has not yet been enacted but is part of draft legislation currently under consideration: a ban on U.S. diplomats having any contact with Iranian ones. Others have also pointed out the senselessness of this provision, even apart from any considerations of constitutionality. The lead reference in Savage's article concerns a comparable restriction that was enacted earlier this year: a ban on the White House's Office of Science and Technology using any appropriated funds to engage Chinese officials. The ban was inserted into a budget bill by Republican members who said they were worried about Chinese espionage. Wouldn't the White House want to prevent Chinese espionage just as much as members of Congress do, and aren't those who arrange contacts with the Chinese in the best position to determine whether a particular contact runs a risk of it?

The legislative and executive functions are two different activities of government, best performed by two different types of bodies. The Founding Fathers recognized this, which is why the U.S. Constitution looks the way it does. The legislative branch establishes general rules and policies; the executive branch applies them to particular cases and problems. The first function requires a representative body for the rules and policies to reflect the broad popular will. The second function requires a hierarchical body to achieve efficiency and unity of purpose.

On matters in which the courts have had a chance to get involved, the third branch of government has endeavored to keep sorted out the proper functions of the first two. Many executive-branch actions that have entailed improperly writing rules as they were being implemented have been invalidated. This has happened even when the legislative branch has tried to give the executive such liberties. The Supreme Court struck down some of the New Deal legislation on grounds that it involved a delegation by Congress of legislative powers to the executive. Things ought to work the other way as well. Not only should the executive not legislate; the legislature should not execute.

So the same U.S. Congress that has done too little in performing some of its proper rule-setting and policy-making functions, and has let some of those functions—most notably the power to declare war—atrophy, has done too much when going beyond those proper functions and starting to operate on the executive branch's turf. This jumbling of what ought to be clearly separated powers is not due to some desire to mess up the Constitution, even if it has that effect. It is more a matter of politics in the narrow sense trumping statesmanship. It also reflects a sort of attention deficit disorder that characterizes American politics in general and the U.S. Congress in particular, in which action is taken more often to respond to the flaps, controversies, causes célèbres and popular themes of the moment than to build coherent and durable policies.

Image: Diliff