Category Archives: separation of powers

Do Drones Undermine Democracy? – NYTimes.com

Do Drones Undermine Democracy? – NYTimes.com.

Sunday Review

Do Drones Undermine Democracy?

Washington

IN democracies like ours, there have always been deep bonds between the public and its wars. Citizens have historically participated in decisions to take military action, through their elected representatives, helping to ensure broad support for wars and a willingness to share the costs, both human and economic, of enduring them.

In America, our Constitution explicitly divided the president’s role as commander in chief in war from Congress’s role in declaring war. Yet these links and this division of labor are now under siege as a result of a technology that our founding fathers never could have imagined.

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We don’t have a draft anymore; less than 0.5 percent of Americans over 18 serve in the active-duty military. We do not declare war anymore; the last time Congress actually did so was in 1942 — against Bulgaria, Hungary and Romania. We don’t buy war bonds or pay war taxes anymore. During World War II, 85 million Americans purchased war bonds that brought the government $185 billion; in the last decade, we bought none and instead gave the richest 5 percent of Americans a tax break.

And now we possess a technology that removes the last political barriers to war. The strongest appeal of unmanned systems is that we don’t have to send someone’s son or daughter into harm’s way. But when politicians can avoid the political consequences of the condolence letter — and the impact that military casualties have on voters and on the news media — they no longer treat the previously weighty matters of war and peace the same way.

For the first 200 years of American democracy, engaging in combat and bearing risk — both personal and political — went hand in hand. In the age of drones, that is no longer the case.

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WITHOUT any actual political debate, we have set an enormous precedent, blurring the civilian and military roles in war and circumventing the Constitution’s mandate for authorizing it. Freeing the executive branch to act as it chooses may be appealing to some now, but many future scenarios will be less clear-cut. And each political party will very likely have a different view, depending on who is in the White House.

[…]

Read the full article here: The New York Times

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Richard Cordray: Is Obama’s recess appointment consistent with past presidential practices? – Slate Magazine

Richard Cordray: Is Obama’s recess appointment consistent with past presidential practices? – Slate Magazine.

Sneaking By the Senate

When did presidents start using recess appointments to bypass advice and consent?

President Obama used his recess appointment power to make Richard Cordray head of the Consumer Financial Protection Bureau on Wednesday, after Senate Republicans refused to allow a vote on the matter. When did presidents start using the recess appointment power to install people they knew the Senate would reject?

More than two centuries ago.

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The authority to make recess appointments, and controversies surrounding it, are nearly as old as the United States itself. During the debates over constitutional ratification, anti-federalists argued that it gave the president monarchical powers. George Washington made several recess appointments without major uproar during the very first Senate recess in 1789, but even the esteemed first president soon ran into trouble.

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Read the full article here: Slate Magazine

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G.O.P. Field Has Broad Views on Executive Power – NYTimes.com

G.O.P. Field Has Broad Views on Executive Power – NYTimes.com.

In G.O.P. Field, Broad View of Presidential Power Prevails

WASHINGTON — Even as they advocate for limited government, many of the Republican presidential candidates hold expansive views about the scope of the executive powers they would wield if elected — including the ability to authorize the targeted killing of United States citizens they deem threats and to launch military attacks without Congressional permission.

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The answers come against the backdrop of a decade of disputes over the scope and limits of presidential authority. Because executive branch actions are often secret and courts rarely have jurisdiction to review them, the views of the president — and the lawyers he appoints — about the powers the Constitution gives him are far more than an academic discussion.

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Newt Gingrich and the Supreme Court: The liberal scholars who support his critique on judicial supremacy. – Slate Magazine

Newt Gingrich and the Supreme Court: The liberal scholars who support his critique on judicial supremacy. – Slate Magazine.

Newt and His Surprising Liberal Allies

He’s not the only one who thinks there is a huge problem with giving the Supreme Court final say on the Constitution.

Newt Gingrich has turned his guns on the federal judiciary, and a lot of predictable squealing—from both left and right—about the threat to the rule of law has resulted. But Gingrich’s public statements, and a more elaborate position paper posted at his website, deserve serious consideration.

The brouhaha began at the last Republican presidential debate when Gingrich declared that “the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people.” In a subsequent TV interview, as well as in the position paper, Gingrich argued that when the president and Congress believe that the judiciary has rendered decisions that violate the Constitution, they should be willing to impeach judges, strip them of jurisdiction, haul them before congressional committees, and abolish courts.

The position paper, “Bringing the Courts Back Under the Constitution,” challenges the theory of judicial supremacy, which holds that the courts enjoy the last word on the meaning of the Constitution. As Gingrich correctly points out, the theory of judicial supremacy does not appear in the Constitution and, while the idea has roots in constitutional history, the Supreme Court’s clearest endorsement of it has surprisingly recent vintage in a case called Cooper v. Aaron, decided in 1958. The founders’ writings shed little light on what should happen when the branches disagree about the Constitution. They differed among themselves and in any event did not have a clear understanding of how the government would operate once set in motion. But Thomas Jefferson did clearly reject judicial supremacy and instead advocated departmentalism, the doctrine that each branch enjoys absolute authority to interpret the Constitution within its domain. And judicial supremacy is hard to reconcile with the Madisonian vision of the branches holding themselves in equilibrium through their efforts to increase their power at the expense of the others. Extended to the Supreme Court, this reasoning implies that the Supreme Court will advance spurious constitutional interpretations to enhance its power, and that Congress and the president must be prepared to resist.

This idea might be unsettling but Gingrich has logic on his side. If judges really had the last word, then there is no remedy if they misinterpret the Constitution—aside from constitutional amendment, which is extremely difficult, and in any event futile if judges then misinterpret the amendment. From a Madisonian perspective, while it is entirely predictable that the Supreme Court would claim that its views prevail over those of the other branches, the other branches have no reason to accept this claim.

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Read the full story here: Slate Magazine

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Mr. Gingrich’s Attack on the Courts – NYTimes.com

Mr. Gingrich’s Attack on the Courts – NYTimes.com.

Editorial

Mr. Gingrich’s Attack on the Courts

In any campaign season, voters are bound to hear Republican candidates talk about “activist judges” — jurists who rule in ways that the right wing does not like. But Newt Gingrich, who is leading in polls in Iowa, is taking the normal attack on the justice system to a deep new low.

He is using McCarthyist tactics to smear judges. His most outrageous scheme, a plan to challenge “judicial supremacy,” has disturbing racial undertones. If he is serious about his plan, a President Gingrich would break the balance of power that is fundamental to our democracy.

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Read the full story here: The New York Times

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Undermining the Executive Branch – NYTimes.com

Undermining the Executive Branch – NYTimes.com.

Editorial

Undermining the Executive Branch

The House will soon consider a bill called the Regulations From the Executive in Need of Scrutiny Act, Reins for short. […] Reins is a terrible piece of legislation that would undermine a functioning regulatory system that protects people from harm. It would also do a great disservice to Congress itself.

[…] it would upend the traditional relationship between the legislative and executive branches. Under long-standing practice, Congress enacts laws […] and then empowers the executive branch to negotiate with stakeholders and write detailed regulations.

[…]

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Republicans Turn Judicial Power Into a Campaign Issue – NYTimes.com

Republicans Turn Judicial Power Into a Campaign Issue – NYTimes.com.

Republicans Turn Judicial Power Into a Campaign Issue

WASHINGTON — Republican presidential candidates are issuing biting and sustained attacks on the federal courts and the role they play in American life, reflecting and stoking skepticism among conservatives about the judiciary.

Gov. Rick Perry of Texas favors term limits for Supreme Court justices. Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage. Newt Gingrich, the former House speaker, and former Senator Rick Santorum of Pennsylvania want to abolish the United States Court of Appeals for the Ninth Circuit, calling it a “rogue” court that is “consistently radical.”

Criticism of “activist judges” and of particular Supreme Court decisions has long been a staple of political campaigns. But the new attacks, coming from most of the Republican candidates, are raising broader questions about how the legal system might be reshaped if one of them is elected to the White House next year.

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Read the full story here: The New York Times

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GOP candidates would cut federal judges’ power | Rick Perry 2012 Campaign for President– News and updates

GOP candidates would cut federal judges’ power | Rick Perry 2012 Campaign for President– News and updates.

GOP candidates would cut federal judges’ power

Posted on

MARK SHERMAN
Associated Press

WASHINGTON — Most of the Republican presidential candidates want to wipe away lifetime tenure for federal judges, cut the budgets of courts that displease them or allow Congress to override Supreme Court rulings on constitutional issues.

Any one of those proposals would significantly undercut the independence and authority of federal judges. Many of the ideas have been advanced before in campaigns to court conservative voters.

This time, though, six of the eight GOP candidates are backing some or all of those limits on judges, even though judges appointed by Republican presidents hold a majority on the Supreme Court and throughout the federal system.

A group that works for judicial independence says the proposals would make judges “accountable to politicians, not the Constitution.”

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Read the full story here: The Houston Chronicle

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The American Spectator : Going North

The American Spectator : Going North.

Feature

Going North

In a parliamentary system, we would easily solve our debt crisis.

AFTER THE STANDARD & POOR‘S downgrade in early August, it didn’t take long for the blame game to begin. Predictably, the mainstream media blamed the Republicans. The problem began with the November 2010 election, when a group of Tea Party “terrorists” were elected to Congress. Those who take a longer view blamed it on George W. Bush (who else?).

I go back even earlier. To September 6, 1787, to be precise. That’s when the Founders in Philadelphia abandoned their plans for parliamentary governance in favor of a presidential system.

The presidential system, with its separation of powers between the different branches of government, is at the core of the Constitution, and questioning its worth seems almost unpatriotic. And yet we very nearly adopted a system not unlike the parliamentary regimes of Great Britain and Canada, which lack a separation of powers.

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Read the full story here: The American Spectator

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