Our federal government consists of three branches designed to provide the essential separation of powers necessary to protect liberty; they are the Executive Branch (the President and federal employees), the Legislative Branch (the Senate and House of Representatives) and the Judicial Branch (the Supreme Court and lower courts).
That was the theory, but like every human endeavor things change; over time the three branches of the government have, essentially, morphed into one – the Super Executive. America has become a dictatorship of the Super Executive. Members of Congress have surrendered their constitutional responsibilities for party loyalty, partisan politics and, most of all, protection of their incumbency.
The Executive has clear constitutional responsibilities – Commander in Chief, Head of State, Chief Law Enforcement Officer and Head of the Executive Branch, but all have legal bounds; even the president has to follow the law. Entering office, they take the Oath (or affirm) to preserve, protect and defend the constitution to the best of their ability.
The Supremacy Clause establishes the U.S. Constitution and laws under the authority of the United States as “the supreme Law of the land.” Ergo, the president swears to preserve, protect and defend the supreme law of the land and laws made under its authority. One of those constitutional requirements is the separation of powers.
However, politics, like nature, abhors a vacuum and many an Executive detecting empty space and lack of congressional resolve have expanded their powers into legislative and even judicial territory – therein lies mortal danger. There is no real difference between replacing the legislative functions of the United States by Executive Order than running Nazi Germany by the Fuehrer’s decrees. Executive Orders that make law or change law are dangerous attacks on the constitution no matter who initiates them.
Partisan arguments over the number of Executive Orders by administration and who was worse at abusing this power are meaningless. The danger comes from the precedents – how the Executive Orders are being used – not their numerical totals or policies. Illegal Executive Orders are being used to change the law and that negates Congress and stifles Justice because there is no legislative history to refute or support the inevitable policies.
The legislative process was designed to be slow and cumbersome, all the grinding softens the sharp edges and vents the pressure through a thousand tiny changes. Opposing a constitutionally inappropriate Executive Order that infringes on the legislative branch is easy when you oppose the policy it advocates. Doing the right thing – opposing it when you support the policy – is much harder, but it preserves the separation of powers.
Since President-elect Trump is not really a construct of either major political party, one primary reason for failing to reverse this long march to Executive dictatorship – party loyalty – is temporarily relieved. The question is, will the members of Congress finally act in good conscience to re-claim their rightful place as the nation’s maker of laws or will they continue to sacrifice a key structure of our unique democracy on the altar of political expediency?
Members of Congress should be aware that the U.S. Constitution is more important than their individual political survival and always will be. If they continue to allow Congress to become just a set of partisan arguments, irrelevant in practice, it will become irrelevant in fact.
