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Chris Weigant

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Checks and Balances

Posted: 06/20/2012 9:48 pm

My title today is a familiar phrase to anyone who went to school in America as a child. It seemed a relevant day to discuss the subject, since we're seeing some serious checking and balancing in Washington today. Since I don't have enough factual information on the situation surrounding Eric Holder and the "Fast and Furious" program to intelligently form an opinion at the moment, it might behoove us all to review the concepts involved with the separated powers of our government. If you would prefer instead to listen to uninformed partisan ranting, well, there's plenty of that out there today in the blogosphere, so feel free to read some of that sort of thing instead.

When the United States Constitution was being debated, strong arguments for it were made anonymously in the newspapers of the day, which were then consolidated into the Federalist Papers. In the ninth one of these essays, Alexander Hamilton wrote of "legislative balances and checks" in the new governmental structure. The concept (and the term "checks") was repeatedly discussed throughout the rest of the essays as well. At some point in time, the term must have been flipped around to the "checks and balances" we speak of today.

But while the phrase sounds noble, in reality what the different branches of our government regularly engage in is much more like a tug-of-war. This is what we're seeing today, between the Executive and Legislative branches. More on this in a moment.

First, a misconception must be cleared up: Today's political commenters often misuse the concept of "checks and balances" to refer directly to politics. This is just flat-out wrong. "Having a president of one party and a Congress of the other is one of those checks and balances the Founding Fathers came up with" is an untrue statement, to put it another way. Political parties were not part of what the Federalist Papers or the framers of the Constitution were referring to, in any manner. They actually downright despised the entire concept of "factions" (the term "parties" came into usage later).

Instead of crass politics, there are four major and powerful games of tug-of-war built into our system of government. Many of these have very vague rules (according to the Constitution), and often no real enforcement mechanisms. Imagine four ropes being tugged upon. The first is between the Judiciary and the Executive. A current example is the "Obamacare" ruling from the Supreme Court, next week (although it also involves the Legislature as well). The second game of tug-of-war is between Congress and the Supreme Court. A prime example of this is the recent Citizens United ruling from the Supreme Court, which essentially says that Congress doesn't even have the power to pass a law overturning corporate money in politics, even in the future (Citizens United can now only be "checked" by passing a constitutional amendment). The third game of tug-of-war is the smallest one, but often the most entertaining to watch. This is the struggle between the two houses of Congress. It is exacerbated nowadays by the fact that Republicans control the House while Democrats control the Senate, but even when one party rules both there are still major down-in-the-trenches power struggles which happen regularly between our two houses. The fourth tug-of-war rope reaches the length of Pennsylvania Avenue, with the White House at one end and the Capitol at the other. This is the one in the news today.

Congress has a multitude of minor tools to use against the White House, and one major one. The White House has two major tools to use against Congress, but not much else (other than whipping up public opinion, but the bully pulpit isn't really a "power," here).

Congress has the power of the purse, to de-fund anything the White House tries to do without their approval. Congress has the power to investigate the White House and all the executive departments. Congress has the power to issue subpoenas, cite someone for contempt, and even censure anyone they choose. These are all minor powers. The major power is, of course, impeachment.

The White House has assorted minor powers, and one very major power when it comes to legislation -- the veto. They also have one other major power, the one which President Obama exercised for the first time today -- "executive privilege."

Barring the power of the purse, the veto, and impeachment, the Constitution is pretty silent on all of the rest of this stuff. The word "contempt" or "censure" never appears in the document, for instance. Nor does the phrase "executive privilege," for that matter. Meaning all of this has been subsequently added over time, as convention or tradition or rules of Congress or even U.S. Code law.

I guess my point in writing all of this is to pre-emptively fend off cries -- from both sides of the political aisle -- that we are facing some sort of "constitutional crisis." We really aren't. The House of Representatives can find the Attorney General in contempt of Congress, and they can even censure him if they feel so inclined. Barack Obama can claim executive privilege, as pretty much every president does at some point in his term (Bush and Clinton both did so, multiple times). The federal court system can either choose to get involved in the fracas, or not (federal courts often shy away from this sort of thing, because they prefer political issues to be decided in the political arena).

The politics of the issue are pretty plain to see, no matter which side of the political divide you view it from. The issue will now become a major part of the presidential campaign, that is certain. Eric Holder may not hold onto his job if Obama is elected to a second term (Holder may not even make it to the end of the year, for that matter). But while it will be a giant political fracas, rest assured that it's not actually any sort of constitutional crisis. If the Republicans really could pin something on Holder, then we'd all be talking about his impending impeachment. But even if this drastic measure is taken, the Constitution itself will emerge at the end of the day just fine. After all, though the document is silent on contempt of Congress and executive privilege, impeachment is indeed one of our original checks and balances. The Constitution is strong enough to survive the next few weeks and months, even if pundits having fits of the vapors tell you differently.

 

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