08/26/2014 11:06 am ET Updated Dec 06, 2017

Fixing Our Dysfunctional Government (Pt. I): Separation of Powers or Partisan Division?

The Congress is in recess, but as one wag said, making oblique reference to the reputation of the current Congress for its do-nothing nature, "How would you know?"

Chicken and egg: do-nothing Congress? Under-performing executive?

Given the multiple challenges facing our nation, abroad and at home, the indictment of congressional if not governmental inutility is a serious one. The causes of this nonperformance require study and no single change in procedure, rule, or even constitutional provision is probably enough to resolve or improve matters.

But let us begin the examination. At the end of these series of columns, considering governmental reforms, I will advocate that the office of the vice president, which is presently without meaningful day to day role in our constitutional system, be tasked with undertaking the consideration of governmental reforms to make legislative and executive branch work more harmoniously and effectively. In making that recommendation, I have a personal interest in undertaking such service myself, and I have previously made this known. This interest on my part is viewed as politically naïve by the sophisticates who see little role for "we the people" to still govern, but I am undaunted by such elitism.

My personal interest aside, as I have written at length elsewhere, I fully expect that Mrs. Clinton will be the Democratic nominee for president in 2016.


It is my experience with Mrs. Clinton in the Department of State that she is an innovator and someone willing to challenge presuppositions that may have been valid at one time but have since lost their currency. She is also someone who learns from constructive practices of others. In this regard, many European countries have a head of state as well as a head of government. In America's mother country, England, the head of state of is of course the Queen; in the Republic of Malta where I served as US ambassador, the president is the head of state, whereas the Prime Minister is the head of government. These separate head of state positions are seen as above politics, and therefore they invite the appointment of a person who by preparation as well as personality can be accepted as an objective appraiser of the need for reform. Breaking the gender barrier at long last, I believe it is an ideal time as well for Mrs. Clinton to rethink having the vice president serve in this role of ongoing evaluation of executive and legislative accountability and performance.


So what's new about a divided Congress?

On one level, inutility might be seen as the natural outgrowth of a divided Congress. In modern times, divided congresses are nothing new. Yet, this President in particular campaigned upon a rhetorical platform that suggested a commitment to finding both the common ground and the common good that could be achieved by standing upon it. It hasn't happened yet, and the American people deserve to know why.

Some have ascribed the nonperformance to the ineffectual leadership on the Hill; still others have found a disturbing disinterest or disengagement by the White House.

Recently, Harry Reid, the Senate majority leader was at the White House discussing international matters with the president and Sen. McConnell, the leader of the Republican minority. Sen. Reid complained that the Republicans were blocking the confirmation of dozens of the president's nominees to serve as ambassador. Quite naturally, Sen. Reid expected the president to take the opening to advance his nominees and press McConnell for action. Instead, as the New York Times reported, the president's rather curt response was: "you and Mitch work it out."

While the White House characterized the discussion differently, both accounts reveal how quickly these conversations descend to the level of personality and at that level. About the only reform suggested is for the president to have more congressional guests on his social schedule or for one party or the other to dominate the Congress and the presidency.
Is that enough of a corrective?

Unlikely. Hoping for greater productivity premised upon the serendipity of personalities working well together is an awfully soft variable to come up against problems of racial unrest in Ferguson, the brutality of fundamentalist hatreds in northern Iraq, and even the difficult choices that must be made as part of an immigration reform that both works to the advantage of immigrant families as well as our national security.

Has the separation of powers been hopelessly distorted by partisan wrangling?

The world's challenges are not waiting for America to get its house in order and we need to consider whether a government organized around the principle of the separation of powers is one that, because of the hyper partisanship of the day, can yield only paralysis. The separation of powers was a unique aspect of the American Constitution, and it has served us well. So we should not tinker with it unnecessarily. The point of the separation of power into coequal branches was the protection of individual human right. No single hand, as Madison would say, echoing Montesquieu, would have the power to define the law, enforce it, and interpret it. In theory, the separation of powers can also lead to a type of specialization and expertise. That may be true, but political differences have largely outweighed such benefits, with one exception -- the civil servant. Although career civil servants are of enormous value and the best of the men and women serving in this way remind, with their competence and dedication, the temporary political occupants of the front office that there is a continuing obligation to serve on behalf of all Americans and not just those Americans who supported the political party preference of the front office.

Yet, civil servants being outranked by their political masters are only a weak check against the insinuation of politics into the evenhanded and effective administration of the law. If the separation of powers is to not obstruct effective governance, we will need to fashion more meaningful internal cues or mechanisms to encourage legislator and executive out of their partisan roles toward a truly workable government. This is the original intent. As justice Robert Jackson opined: "while the Constitution diffuses power, the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy, but reciprocity."

Evading this responsibility of producing a workable government is the modern tendency to style partisan difference as a breach of constitutional duty. This is Speaker Boehner's gambit with respect to the scope of the president's authority under the health care legislation. House Resolution 676, passed in late July, authorizes the Speaker to initiate or intervene in litigation challenging the president or any executive officer for failing to act in a manner consistent with constitutional duties and in particular failing to implement Obama care. Translated, Congressman Boehner has been given permission to argue in court that the president has usurped congresses power by delaying the health law's full implementation. There's more than a little irony in the nature of the lawsuit, given that the very same House Republicans who claim to be bothered by delay have voted repeatedly to repeal the legislation. The president and his lawyers respond that it's all a "political stunt."

The potential lawsuit, which is not yet been filed (one gets the sense that the Republicans are waiting until the fall campaign season) does have a certain stunt-like quality to it for, as a matter of constitutional standing, courts are reluctant to allow political branches to air their policy differences in judicial proceedings. The political question doctrine might readily toss the lawsuit before it got anywhere close to the merits simply on the ground that there are no manageable judicial standards to be applied, the lawsuit is rather transparently calculated to be embarrassment to the executive branch, and any redress or remedy that the court could likely fashion might well be beyond its capability of enforcement.

So what's really going on? It is hard to credit fully either side. The Speaker has a point that the various delays are not explicitly authorized and it would press judicial deference to construe the law as empowering the president to make as many modifications as he has found necessary. By the same token, the president is correct that all statutes, especially complex statutes like the healthcare law, implicitly, if not explicitly, empower agency administrators to exercise discretion for the overall success of the program.

Does the Boehner lawsuit have a prayer?

About the only chance that the speaker has in court is if he can demonstrate an institutional harm, i.e. the president has somehow prevented the Congress as an institution, as an entity, from legislating. This cannot be easily shown because Congress is not of one mind on the president's action. Hence, judges are likely to view the lawsuit for what it is: a partisan attempt by the Republicans to get what they couldn't get in the Congress -- namely, a repeal of Obama care. But that's not the nature of our system; the judiciary is to resolve bona fide interpretive disputes not disagreements of policy. Rightly, courts are wary of jumping into disputes between the political branches. There are no manageable standards to apply in such a lawsuit and in any event, the type of redress that the court can order is well within the bounds of both parties already: namely, to agree to work together to accomplish the objectives of the law.

Partisan bickering, disguised as constitutional violation, is a repetition of the attempt to impeach President Clinton for behavior which, while imprudent, was hardly high crime or misdemeanor. But Republicans are not the only guilty parties when it comes to overstated constitutional argumentation. It was a frequent complaint by Democrats during the George W. Bush administration that he was usurping legislative power by inserting qualifications into presidential signing statements indicating that if , in the administration of the new law, he found an attempted encroachment upon executive power, then, to that extent, he would not enforce the statute. Presidential signing statements are meant to be fairly mundane directions from the highest executive officer - which might be the president, but is often practically the head of the division or at best a cabinet agency - on how to best accomplish the instructions contained in the legislation. No president would instruct that a law be administered in a way that violated his own lawful discretion.

Now there was good reason to be suspicious of Pres. George W. Bush following his invasion of Iraq on what proved to be false testimony. But to signing statements generally as being in the same league as the occupation of a foreign nation with which we are not in a declared war is to mix matters entirely. Nonetheless, because of the partisan bickering, even the president's rather vacuous statements of reserved authority raised the hackles of many of George W. Bush's partisan opponents.

What is lost in all this check and balance, ambition, checking ambition?

Isn't that what the founders intended as a way of constraining the previously unbounded and offensive powers of the English monarchy? Yep. And again, thanks to the integrity of the vast majority of men and women appointed to serve on the judicial bench, and the independence that the Constitution assures them, individual freedom has been well served.

What has not been well served is the objective of governing, which may differ of course, with respect to each particular policy area, but which is similar regardless of policy, in that it is expected that the president and the Congress will see their roles as leading to the enactment and the enforcement of the best possible policy alternatives, not just those that will give advantage to one party or the another. Good policy will reflect comprehensive inquiry done in congressional hearing, a good faith effort to administer the most well-conceived policy for the benefit of all Americans, and the continuing collaboration of the executive and the legislative in implementation. This collaborative effort between the legislative and the executive would be expected to be characterized by an honest effort at execution on the part of the President and an equally honest effort on the part of the legislature to supply the president with additional authorities and personnel to accomplish the job. In the context of healthcare, the point of the entire exercise is not praise for one political party over another, but a workable health care plan that improves the lives of American citizens.

The need for some Supreme Court rethinking

Beyond the partisan attitudes that obstruct such collaboration are the formal tools which have been used to blunt such efforts. For example, Congress is disabled from close monitoring of executive performance by the Supreme Court's invalidation of legislative vetoes. In a rather wooden, formalistic opinion, the Supreme Court held that power delegated to the Atty. Gen. in matters of immigration could not be modified by less than the entire Congress in a legislative act presented to the president for his signature. It's absurd to think that every immigration matter would be capable of gaining the president's attention, let alone the attention of the legislative committees that are necessary for bicameral passage and presentment of ideas to the chief executive.

Thus, one immediate reform that would foster greater governmental accountability and effectiveness would be the constitutional reconsideration to the legislative veto. A great deal has happened since the 1970s, when the Supreme Court invalidated this monitoring and collaborative device, and it is a worthy subject for the solicitor general to bring back to the court in light of the need for a closer, on-going effort by the Congress and the President to "take care" that the laws are faithfully executed. The benefits of such greater collaboration include less suspicion that the executive is using signing statements or other administrative directives to undercut the Congress; and it should also lessen the justification for the President as well to decline to defend statutes as Pres. Obama did in the DOMA case. A Presidential nondefense does less damage to the rule of law when the argumentation for a law's indefensibility has already been vetted internally rather than at the moment of application in an individual case where such nondefense gives rise to a concern of presidential default as well as uneven enforcement.

In the next column, consideration of other rule changes, constitutional re-arguments and other steps short of constitutional amendment that can promote the joint governance of Congress and the President without losing the advantages of the separation of powers.