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The Collective
Wednesday, April 4, 2007
By Dr. Steven Taylor

Honza P. labels me a “Congressional supremacist” in a post today at Pros and Cons. The context of his post is that of the notion that I likely support Pelosi’s trip to the Middle East. As I noted this morning, I am not a fan of such trips independent of the basic foreign policy strategies of a given administration (and would still not be a fan if it was a Democratic President and Republican Speaker), but I also think that she has every right to pursue the trip if she so desires. Not only is she the third ranking constitutional officer in our system, but Congress has the right to fact find, which is essentially what she is currently doing.

However, the post that Honza uses to prove my Congressional “supremacism” is one in which I critique the notion that a president (any president) ought to have the right to arrest and detain a US citizens sans any outside review of that action. To me that is, at best, an authoritarian exercise of power that we ought not allow in the United States. People arrested should be arrested as the result of a suspected breaking of a given law (i.e., under the aegis of existing legislation) and the charges should be adjudicated by a court. These are fundamental rights that all US citizens have. To concentrate all that power in the President is to afford the office with, by definition, tyrannical powers.

I am not sure, then, if Honza is proclaiming himself a “Presidential supremacist” (a far, far more dangerous position, I would argue, than what he accuses me of), but since he has in the past noted his disdain for the Congress and for my views on the Congress in particular (in the past he has been, for example skeptical of allowing Congress to fully oversee the President for fear of leaks) it seems worthwhile to deal with the this issue.

I would not, per se, consider myself a “Congressional supremacist” (although I suppose it depends on what he means). If it boils down, however, to trusting one elected official or having to trust 535 elections officials who have to reach some sort of consensus prior to acting, then yes, I prefer that the Congress has the upper hand in most situations. Of course, for Congress to truly gain the upper hand in a given situation requires substantial agreement within the body.

Preferring such a system is not being a “Congressional supremacist” as much as it is being a believer in separation of powers and checks and balances as designed in the Constitution. It is, in fact, being Madisonian.

As Madison himself noted in Federalist 51:

In republican government, the legislative authority necessarily predominates

But, more to the point:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

As such, I believe in the basic principles of separation of powers with checks in balances in place as a means of trying to get the government to control itself (more or less).

To restate something I said above: if I have to trust 1 non-angel who might act unilaterally, or require him to deal with 535 other non-angels who have to operate on the basis on consensus, then I know where I have to ultimately put my faith.

And, let’s face facts: a legislative body is, by definition, a more democratic institution than is a single executive.

Indeed, it is unclear to me how anyone with small government conservative leanings could ultimately want anything other than a system in which the legislature ultimately can predominate if the circumstances warrant it.

Do I think that every single decision of US foreign and military policy should be subject to Congressional vote? No—but I do expect that the Congress would keep a vigilant eye on the behavior of any given president. It is their duty within our system—a duty, by the way, that the Congress has failed to attend to over the last six years. Accountability leads to deliberation and caution, while lack of accountability leads to recklessness and misuse of power.

The notion that the President ought to be thought of having special wisdom and virtue simply because he is elected to the office is a frightening thought (to me, at least).

Again: the Congress requires a great deal of consensus (made in public) before it can fully assert itself, making it less dangerous in many regards than the President, which ultimately only requires that one man make a decision (in private). You tell me, therefore, which one is potentially more dangerous?

And I hate to tell Honza this, but since the Congress has the legislative and budgetary powers of the US government via the Constitution, it is ultimately the more powerful branch.

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16 Comments

  1. It’s getting harder and harder for reasonable people to disagree. The use of a term such as “supremacist” is meant to show disrespect since the word has been associated with extreme ideologies for decades.

    Civility is a hallmark of reasonable men. When discussing matters that enflame emotions civility becomes that much more of a measure.

    While I disagree with Dr. Taylor about where this line should be drawn concerning presidential vs congressional power I can respect his position on it’s merits but also because of his polite civility in stating his position.

    Those who wish to have a positive influence on public policy should remember this at all times.

    Comment by Steven Plunk — Wednesday, April 4, 2007 @ 12:59 pm

  2. Separation of Powers

    Poli Sci prof Steven Taylor has a long and thoughtful post on separation of powers, with application to Nancy pelosi’s trip to Syria and Rudy Guiliani’s scary comments on Presidential power.

    Trackback by ProfessorBainbridge.com ® — Wednesday, April 4, 2007 @ 2:43 pm

  3. Indeed, it is unclear to me how anyone with small government conservative leanings could ultimately want anything other than a system in which the legislature ultimately can predominate if the circumstances warrant it.

    I’m for small government, and I will note that pork generally comes out of consensus building in Congress. That leads to large government. So, no, I don’t want the legislature to ultimately predominate. I don’t want the executive to ultimately prevail either.

    I want the three branches of government to understand the definition of “co-equal” (quiz: Can the President demand draft copies of a Supreme Court decision he disagrees with? Can the President demand notes from Pelosi’s staffers regarding upcoming legislation? Can Congress demand documents from the Attorney General — one of the President’s closest advisors — regarding the firing of US Attorneys that serve at the President’s pleasure?).

    Comment by Max Lybbert — Wednesday, April 4, 2007 @ 3:38 pm

  4. Don’t forget that Madison was not only a congressional supremacist, but a House supremacist. Federalist 10, written before the Convention is all about making a single chamber dominant over an “extended republic” because only by having one deliberative body that balances the “passions and interests” of a large community can the danger of “faction” (majority or minority) be checked.

    When he put this into practice through his proposed constitution (known as the Virginia Plan), the executive would have been selected by Congress. Both houses of congress would have had membership based on state population, and Senators were to be elected by the House, out of nominations sent by the respective state legislators. There was no veto as we know it, though the President could have convened a Council of Revision (judges) to consider whether a bill was constitutional. If it said it was not, a majority (not two thirds, but 50%+1) could override.

    Federalist 51 came only afterwards, once Madison’s effort to implement the Virginia Plan was thwarted by small states, which preferred to demolish the whole concept of the Union rather than surrender their equality of representation in at least one house of congress. Only when thwarted did Madison turn to institutional checks and balances, as a way to invigorate the executive (though not as much as authoritarians like Honza-or Alito, for that matter) would like, against a congress that no longer looked like the one Madison wanted in Federalist 10.

    Thus one can be a House supremacist and a Madisonian. Just as Madison himself was.

    Comment by MSS — Wednesday, April 4, 2007 @ 3:51 pm

  5. Max Lybbert’s statement sums up how many of us feel on the issue itself. The group dynamics and traditions of the legislative branch have proven to create bad legislation and terrible budgeting. It works the same way in most state houses.

    Compromise, consensus, bi-partisan, these are the words used to cover up what I would call collusion, conspiracy and irresponsibility on the part of our elected representatives.

    The good thing about a powerful executive is that ultimately he is responsible for his actions, no hiding behind others.

    Comment by Steven Plunk — Wednesday, April 4, 2007 @ 5:13 pm

  6. I guess I ought to give good answers to my quiz:

    (1) The President cannot demand anything out of the Supreme Court. If he disagrees with a Supreme Court ruling, he has very few options other than to drag his feet and complain to the public about “activist judges.” However, over the long term, the President nominates all sorts of judges, including those who sit on the Supreme Court.

    (2) The President cannot demand much of anything out of Congress, *especially* when it’s a purely political question. Congress has created its own rules (such as Fast Track Negotiating Authority) willingly limiting its options when dealing with the President on some things, but that’s an exception. If the President doesn’t like a law, he can veto it. Or, if he’s feeling very creative, he can “clarify” portions of the law, like saying CO2 emissions aren’t pollution under the Clean Air Act (and the Supreme Court can overrule him).

    (3) Congress really can’t demand much out of the President. If they aren’t at his beck and call, he’s not at theirs either. But Constitutional checks and balances pretty much guarantee that the President must work with Congress, and so he may end up voluntarily doing things that he can’t be forced to do. For instance, if he fires US Attorneys, he can’t replace them (or judges) without Congressional approval. Congress may decide to drag its feet regarding those confirmations until the President decides to play ball.

    Likewise, if Congress authorizes a war, and later decides that it doesn’t like how the President is executing that war, there isn’t much that Congress can realistically do. Sure, Congress can defund the war, or rewrite the UCMJ so that the war is impossible to carry out legally (US Constitution Article I, section 8: “The Congress shall have power … To define and punish … offenses against the law of nations; To … make rules concerning captures on land and water; … To make rules for the government and regulation of the land and naval forces;”). But politically those won’t fly. They look too much like scoring political points against the President by letting US soldiers die.

    However, Congress could instead subject appropriations bills to severe scrutiny, bringing in retired generals and such to make sure everything’s reasonable. Then Congress isn’t killing soldiers for political reasons — it’s just being prudent. And, so that soldiers don’t die, Congress can fund the war through a series of one-month appropriations. If the President becomes a little more open in his execution of the war, Congress can let out on the leash more.

    Or perhaps Congress could refuse to look at certain bills the President wants passed until he decides to play ball regarding the war.

    So, no, I don’t want the legislature to eventually win disputes. Nor do I want the President or the Supreme Court to be “more equal” than the other branches. I think the system described in the Constitution works just fine.

    Comment by Max Lybbert — Wednesday, April 4, 2007 @ 6:11 pm

  7. […] Setting aside which party controls what, or whether the Senate has sufficiently good reasons to reject these candidates, isn’t there something wrong with an ongoing process of simply side-stepping checks and balance and denying the Senate it advise and consent role? (Or perhaps I am being a Congressional supremacist again for wanting that quaint ol’ Constitution to be used?). Filed under: US Politics | | […]

    Pingback by PoliBlog ™: A Rough Draft of my Thoughts » Bush Yet Again Show Disdain for Checks and Balances — Wednesday, April 4, 2007 @ 10:10 pm

  8. There’s a lot above, but let me address a few issues:

    1) We don’t have, nor have we ever, had co-equal branches of government in the sense that all three have the same amount of power and influence over policy. That is a fallacy that we often are taught in high school.

    Indeed, it is obvious, for example, that the President has far more foreign policy powers than the other two branches. And it is clear that Congress is ultimately the most powerful branch: given that every federal law must come through Congress, every federal dollar spent must be authorized by Congress, it is hard to say that they are anything but the most powerful branch. It is an empirical issue, not one of preference.

    2) Max: you can’t do the A=B and B=C so A=C business with with branches. It simply is irrelevant for the conversation as to what SCOTUS can and cannot do vis-a-vis the President as some way of justifying what the President does vis-a-vis Congress.

    3) MSS: I take your point, although I must confess that I prefer the separation of powers system to a more parliamentary-like one in this context. But that is a conversation for another day, I suspect.

    4) Max: ALL pork comes from Congress, btw, because they write and pass the budget. Where is the evidence that giving the president more power would cut down on pork (or on spending in general?).

    5) Max: the AG is not one of the president’s closest advisers in a technical sense, he is the head of a department and is directly answerable to the Congress. So yes, they can demand what they are demanding.

    6) Being a “small government conservative” is not just about spending. It is about power and the potential for abuse of power by government. Executives have a greater capacity to abuse power than legislatures do on a day-to-day basis, since executive control the coercive apparatus of the state. As such, small government conservatives should be concerned about concentration of power in the executive.

    Comment by Dr. Steven Taylor — Thursday, April 5, 2007 @ 7:33 am

  9. […] On Congressional Supremacists, Democracy and Madison […]

    Pingback by PoliBlog ™: A Rough Draft of my Thoughts » A Question on Checks and Balances, Partisanship and Executive Power — Thursday, April 5, 2007 @ 11:02 am

  10. On Congressional Supremacists, Democracy and Madison

    Don’t forget that Madison was not only a congressional supremacist, but a House supremacist… Federalist 10, written before the Convention is all about making a single chamber dominant… Only when thwarted did Madison turn to institutional …

    Trackback by Fruits and Votes — Thursday, April 5, 2007 @ 12:10 pm

  11. We don’t have, nor have we ever, had co-equal branches of government in the sense that all three have the same amount of power and influence over policy.

    That is true; but they are “co-equal” in the sense that they aren’t able to order each other around. The only way checks and balances work is for each branch’s actions to be sufficient to block another branch. “The Supreme Court has declared my program Unconstitutional, but everyone knows they aren’t as powerful as the Presidency, therefore, …”

    ALL pork comes from Congress, btw, because they write and pass the budget. Where is the evidence that giving the president more power would cut down on pork (or on spending in general?). … Being a “small government conservative” is not just about spending. It is about power and the potential for abuse of power by government.

    I don’t think the President would cut down on pork in any way. A lot of pork is instigated by the President. I only wanted to point out that a strong legislature doesn’t lead to small government.

    And, yes, a government of one king isn’t necessarily an acceptable government to a small government conservative. Britain’s Prime Minister gets yelled at by Parliament every week, and every time I’ve heard one of those exchanges I’ve thought “why don’t we do that?”

    My point isn’t that any branch of government is more trustworthy or less of a threat. My point is that the system of formal checks and balances is ingenious because it forces the various branches to do a lot of informal things to get their way. The President can’t force Congress to vote on a particular law, but he can veto every single bill that comes out of Congress until they negotiate over the law the President wants.

    I don’t want Congress to win by default, nor do I want the President to win by default. I don’t necessarily even want a consensus in every case, because there are times where a consensus is the worst possible answer (say, invading Cuba with ground forces but without air support). There are times you’ve got to go in with both feet or stay out with both feet, and putting one foot in is a bad idea. I think that co-equal branches in this sense are probably the best way to get good results over the long term.

    Comment by Max Lybbert — Thursday, April 5, 2007 @ 1:22 pm

  12. Max,

    We are likely in more agreement than you realize and it may be that you misconstrue my position.

    The whole context of the post was that I have, in a number of places, argued for vigorous checks and balances-and for that I was dubbed a “Congressional supremacist”. Rather, I think I am simply being constitutional.

    Further, the current President has been rather hostile, I think to adequate oversight and generically to checks and balances. However, a lot of conservatives seem untroubled by that fact, which I, turn, find troubling. I am not sure how extolling increasing executive power is congruent with small government conservatism.

    Comment by Dr. Steven Taylor — Thursday, April 5, 2007 @ 3:01 pm

  13. We are likely in more agreement than you realize and it may be that you misconstrue my position.

    I’ll admit that when I wrote my first comment, I was responding more to a stereotype of who I thought you were than to a person. After that, I read several posts here, and I realized that, yes, we agree more than we disagree.

    My wife bought me a copy of the Federalist Papers for my birthday. I couldn’t stop thinking about how something like the Constitutional Convention would go over today. Imagine if the Iraq Study Group, the 9/11 Commission, et. al. had met in secret, refused to publish their notes, far exceeded their mandate (yes, Cheney’s energy taskforce met in secret and refused to publish records, but I believe they stayed inside their mandate), AND said the resulting document was an all-or-nothing affair.

    I like to watch politics when it’s played competently, even if the other side gives me heartburn. I have to give them credit when they are clever. Unfortunately, the legendary politicians have all been replaced by clumsy look-alikes.

    Comment by Max Lybbert — Thursday, April 5, 2007 @ 4:32 pm

  14. When I wrote my first two comments, I admit I was responding more to a stereotype of who I thought you were than to you. After that, however, I looked around the blog some, and yes, we do agree quite a lot.

    Comment by Max Lybbert — Friday, April 6, 2007 @ 7:49 am

  15. […] As such, perhaps those who wonder about my critiques and questions (even my interest in an assertive Congress), may understand a bit more as they consider what a Nifong-like member of the DoJ might do in the pursuit of terrorists. […]

    Pingback by PoliBlog ™: A Rough Draft of my Thoughts » On Nifong, Security and Wariness of Governemental Pursuits of Security — Wednesday, April 11, 2007 @ 7:37 pm

  16. […] As such, perhaps those who wonder about my critiques and questions (even my interest in an assertive Congress), may understand a bit more as they consider what a Nifong-like member of the DoJ might do in the pursuit of terrorists. […]

    Pingback by Political Mavens » On Nifong, Security and Wariness of the Pursuit of Security — Wednesday, April 11, 2007 @ 7:39 pm

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