A repellant for tyrants: Part II

Flouting the separation-of-powers principle breeds autocracy and bureaucratic metastasis

By Joseph Becker
  • Wednesday, October 26, 2011

When state governments ignore the separation-of-powers doctrine, the consequences can be dire.

By way of quick review: The separation-of-powers principle provides that those entrusted with duties and powers in either the judicial, executive or legislative branch of a government are not permitted — except in limited and highly specific instances — to exercise the functions or powers of the other branches.

 In America's federal constitution, the separation-of-powers provisions are inherent and are nowhere mandated upon the states. Nevertheless, many states have expressly embodied these tenets.

In the Silver State, the authors of its constitution did so even more tenaciously than most states. Article 3, Section 1 of the Nevada Constitution reads, "...no persons charged with the exercise of powers properly belonging to one of these departments [legislative, executive, and judicial] shall exercise any functions appertaining to either of the others." [Emphasis added]

On the national level, the potentially dire consequences of disregarding the separation-of-powers principles are easily seen when government's war power is the issue.

The preamble to the U.S. Constitution notes that "maintaining the common defence" [sic] was one of the core justifications for forming a national government. At the same time, however, the Framers deployed the separation-of-powers principle to ensure that the war-making ability of the new national government was closely guarded.

"In deciding which branch of government should hold the power of war," notes Louis Fisher, scholar of the U.S. Constitution at the Library of Congress, "the Framers ... studied the British monarchical model, which concentrated the war power in the executive, and they wholly rejected it. Instead, they agreed that the authority to take the country from a state of peace to a state of war must be vested in Congress."

John Jay wrote to that same point in Federalist No. 4:

... absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or by the voice and interests of his people.

Until 1950, in America, the Framers' plan was highly respected. All wars, big and small, were either declared or authorized by Congress. No president claimed that he alone could order the country to war. Unfortunately, this principle has been largely ignored since World War II.

Then, notes Fisher, things changed dramatically "when President Harry Truman took the country to war in Korea without ever going to Congress for authority.

"He argued that he had obtained ‘authority' from the United Nations Security Council. Years later, President George H.W. Bush would point to the Security Council for his ‘authority' to order a war against Iraq, and President Bill Clinton would resort to the same argument when sending military force against the Serbs and threatening to invade Haiti."

Fisher goes on to write that in focusing on "convenience and short-term results ... the long-term health of constitutional government has suffered. No one can plausibly contend that the president, as commander in chief, and the Senate, as confirmer of treaties, may eliminate the role of the House of Representatives in matters of war."

Eliminating the House in the process blatantly violates not only the separation of powers but the sovereignty that is placed in the people and their representatives.

While treaties (along with the U.S. Constitution) are the "supreme law of the land," treaties entered into unconstitutionally (for example, delegating to international entities non-delegable powers) are not bona fide treaties and thus do not enjoy this "supremacy."

Congress has also gone far astray, ignoring the separation-of-powers principle, in its creation of administrative agencies — agencies that legislate through "rulemaking," execute through the enforcement of the rules they create, and adjudicate through administrative law judges.

Such bogus "administrative branches" report to merely their own unelected federal department secretaries. Even were rulemaking a power that Congress could constitutionally delegate, Congress moved well off the constitutional map in "delegating" not only its own legislative powers, but also powers that were never those of Congress in the first place!

The result today is that legions of American citizens are subjected to federal agencies inventing regulations that bear only the loosest relationship to congressional directives. Say what you will about members of Congress — at least, for them, re-election is still key. The power of voters to un-elect them in fairly short order (especially in the House) creates a significant check on the extent to which they will do the totally abhorrent.

Citizens in the clutches of federal administrative agencies have no such comparable check. Agencies' enforcement and adjudication of these rules are administered by employees of these same departments, perhaps even in the next cubicle.

Not surprisingly, this particular abandonment of separation-of-powers principles fostered a bureaucratic expansion of the federal government — the likes of which had never been seen in the long series of years preceding the creation of these rulemaking administrative agencies.

Joseph Becker is chief legal officer and director of the Center for Justice and Constitutional Litigation at the Nevada Policy Research Institute. For more visit http://justice.npri.org/ and http://www.npri.org/.

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