For more than 200 years, every schoolboy and schoolgirl in America has learned that our government has three branches in Washington, DC—the legislative, executive and judicial—each designed to complement and balance the other with specified functions to make laws, execute laws and interpret laws.
This clear and vital tradition of the American representative form of government, however, seems to have been, at least temporarily, altered by all three branches of government seeking to “legislate” policies, as well as see them carried out.
The U.S. form of government is always in a dynamic state historically as it adjusts to the new conditions of new times, as well as repair its flaws. In the course of this dynamism, various branches have taken the lead over two centuries in the major reforms of ending slavery, enabling voting suffrage to women and minorities, trustbusting, ensuring civil rights, ending segregation, creating a tax system, and many other reforms.
This dynamism often creates imbalances between the federal branches of government, as happened with an initially weak Supreme Court in the nation’s first years, a weak presidency in much of the 19th century (Civil War years excepted), and a frequently stalemated Congress after World War II. These imbalances inevitably produced excesses by competing branches.
When the Democrats regained control of the U.S. Senate in 2006, that body under its majority leader Harry Reid, worked with then Democratic majority in the U.S. House to pass medical insurance reform (also known as Obamacare) highhandedly and with virtually no real debate. In 2010, U.S. voters strongly reacted against this by giving Republicans a strong majority in the U.S. House. Still controlling the U.S. Senate, Mr. Reid then essentially shut down that body, allowing few votes, debates or even amendments to legislation. This backfired in 2014 when Republicans regained control of the Senate. But President Obama, a Democrat, reacted to the ensuing stalemate by issuing a number of executive orders which “reinterpreted” existing legislation. He was by no means the first president to do this, but it has been clear that in his final years at the White House he does not intend to be blocked from his legislative agenda by the stalemate with Congress.
Recently, Mr. Obama concluded an agreement with Iran, and has claimed it is not a treaty (which would require two-thirds approval by the Senate). After negotiations, he got an agreement from the Congress that it could reject the Iran “deal,” but unless both houses can muster huge majorities against it, he can veto their veto, and the Iran agreement would prevail. Mr. Obama even went further by having the United Nations approve the agreement, this presumably trying to prevent a future president from abandoning it. (The problem with this latter strategy is that it would elevate the Iran agreement to a prima facie “treaty”—and to enforce it would then require a two thirds approval by the Senate.)
No one, of course, denies the executive branch the right and duty to negotiate with foreign countries, but the sovereignty of the United States and the constitutional right and duty of the Senate to approve such negotiations at the treaty level is also unarguable.
It is not only the executive branch which is over-reaching its constitutional powers. The U.S. Supreme Court, led by John Roberts, a conservative, has recently taken to “rewording” legislation to arrive at some of its most controversial decisions. The decision on Obamacare particularly required the Chief Justice and the majority to rewrite the wording of the legislation so as to arrive at their desired conclusion. This amounts to Supreme Court legislation.
The self-justifications for these activities are being made by the parties involved, but they are increasingly being made in an environment of significant public opposition. Voters have twice gone to the polls to register their strong antipathy to “Obamacare.” Similarly, polls indicate that American public opinion is strongly against the administration’s Iran “deal.”
In the past, it was public opinion which ultimately led to and enabled the various branches of government to make changes and reforms. In the absence of current support of the overreach by the executive branch and the Supreme Court, it would seem. it is tenuous at best to think that this trend will and can continue.
The national elections of 2016, in fact, might just be the critical point when voters decide to rebalance the relationships between the branches of the federal government.
It might be possible to go around Congress in the short term, but there is no long-term way to end run the American voter.