Separating the Powers

I referred to the Separation of Powers in the US Constitution the other day in a post, making the point it is a plural phrase: it is not a single, shared power, but different and competing powers. We all know this from high school civics (back when that was taught) or SchoolHouse Rock (when TV ruled).

Many talking heads are invoking arguments about the separation of powers, making it sound like there are clear divisions. There are in a general sense. But they are very fuzzy at the margins. Let’s see how.

The President is the pinnacle of the Executive Branch. He enforces laws, either through bureaucrats, police powers, or the military (listed in order of decreasing danger presented to the average citizen). He has sole authority when it comes to foreign policy and is commander in chief of the military. Yet Congress must approve treaties and declare war. Right there you start to see how the separation is more conceptual than absolute. The laws the President executes (hence the Executive Branch) are written by Congress, although he (so far, only he) must also agree to sign them. If he vetoes them, the Congress with a super-majority can override his veto. Clear as mud?

The President has broad authority to set standards for how his branch executes the law. For example, he may tell the Department of Homeland Security to arrest violent criminal aliens as a priority, which does not mean all other persons here illegally are off the hook. Just that there are limited resources, and all the laws cannot be executed equally. Or he could tell the Internal Revenue Service to focus on corporate tax cheats rather than individuals. Or the Department of Justice to seek out certain kinds of discrimination. All of that is within his purview, although the Courts and the Congress may disagree with it.

The Congress has the power of the purse, that is, they control the money flow. This sounds very powerful, and it is, but it is the ultimate double-edged sword. First, authorizations (permission to do something) and appropriations (dollars to do something) have to be passed as bills into law, meaning they have to survive a committee process, floor votes, and sometimes super-majorities, not to mention getting the President’s signature after all that. The more Congress specifies the details, the more power they have, but also the more accountability. Members sometimes put into law “spend $x dollars with Y company to make Z product” which is called an earmark and can be (almost always is) a corrupt practice. But if they say “spend $x dollars on foreign aid” the Executive Branch might do something they don’t like. So they try to be just specific enough.

All of which leads to the argument about how the President spends the money. To know whether he is abiding by the Congress’ intent, you have to know the exact language in the original authorization and appropriation, items buried deep in thousands of pages in the federal register. Suffice it to say that many of the people talking about such things today in the media have not done that research, which means they don’t know what they’re talking about. And then there is the timing issue. Appropriated money has to be spent within a specific time frame, usually one fiscal year (October-September). So one can’t say the Executive Branch is defying the Congress (definitively) during the fiscal year, because the game is not over yet. And any President can pause any spending to review it for legal or policy reasons, and they do so all the time.

Sometimes there are fundamental arguments. Democratic-controlled Congresses in the 1980s passed the (first) Boland amendment (named for Massachusetts Democratic Representative Edward Boland) which restricted US Intelligence Agencies from providing any funding to the Nicaraguan Contras. Legitimate power of the purse, or unconstitutional limit on the President’s foreign policy authority? The Reagan White House read the amendment literally, and sent money from the National Security Council (which is not an intelligence agency) to the Contras. Then Congress passed another Boland Amendment prohibiting any transfer of US funds to the Contras, nor the use of any appropriations to arrange funding for the Contras. But President Reagan decided the Congress could not tell him he couldn’t cut a deal with Iran to fund the Contras! Neither side went to court, fearing they might lose and set a precedent.

Here’s a hypothetical. If the power of the purse is so clear, why can’t Congress simply say the President has a compensation of one dollar per year, and nothing for the White House as an institution? The fact that the President receives a compensation is in the Constitution (but not how much), as well as the fact his compensation can’t be changed during his term, but couldn’t Congress just practically zero him out and make him irrelevant? Obviously not, but why not?

This is where the third branch comes in: the Judiciary Branch. They were considered by the Founders to be the least powerful branch. Members had to be nominated by the President and confirmed by the Senate, which meant both the other branches could influence who sat in the courts. Congress even has the ability to limit some of the Supreme Court’s jurisdiction (what cases or concepts they can review), an extremely powerful but rarely invoked authority. The Judiciary Branch really marked out its territory in the case of Marbury v. Madison, when the Supreme Court ruled that it was the deciding authority for what is or is not constitutional. The court ruled that the US Constitution implied that someone–in their view the Supreme Court–has to be the final arbiter of constitutionality. This made them the referee in battles between the states and federal government, between the Executive and Legislative Branches, and even between competing constitutional rights (think life and choice, for example).

But they have no power to enforce their decisions. President Andrew Jackson almost certainly did not say, “John Marshall has made his decision; now let him enforce it!” but he did defy the Chief Justice’s ruling in a case about the Cherokee Nation. Abraham Lincoln ignored the Supreme Court’s overruling his suspension of habeus corpus during the civil war, and FDR cowed the court (when it ruled much of his New Deal unconstitutional) by threatening to pack it with new appointees. Events like Richard Nixon’s agreeing to give up his secret Oval Office tapes because the court ordered it are actually more of the exception than the rule in highly controversial cases.

Let’s take a current example to see how all this plays out. President Trump has threatened–and begun the process of–dismantling the US Agency for International Development (US AID). It is written into law, so he can’t just do that, can he? Well, he can certainly stop its spending for review, and that review can take time. At what point does it become something more like a refusal to spend (called impoundment in federal appropriations language)? That would be a court’s call, as an argument between the branches.

Can he fire all the employees? Yes, but there is a process for that which must be followed. Is he following the process? Again, there is a labor relations board which must rule on that. Oh, and the President has vacated this board’s members, so it can’t rule because it lacks a quorum. Another case to be made to the courts. How much of the funding can he redirect? Each line item in the authorizations and appropriations has to be reviewed for how specific it was, and how much leeway the Executive Branch has. Given Congress’ desire to be more general, I would bet there is a lot of leeway, but again, that will be up to the courts. A District court judge just ruled that the Administration does have to pay for those commitments which were already made; this is a peculiarity of foreign aid. Much of it is paid retroactively to NGOs, charities or governments. US AID officials sign a contract which instructs the aid recipient how to spend and on what, then promises to reimburse them when they demonstrate they have complied. The administration stopped even these payments, and the court (rightly in my opinion) said, “not so fast, a contract is a contract.” Little reported in the headlines (From the Washington Post: “‘Unlawful’ suspension of USAID funding probably violated Constitution, judge says”) was that the judge confirmed that the administration could stop all prospective payments, which are far larger.

The headlines are often misleading in these cases, as I have pointed out before, because controversy attracts eyeballs. There are forty-six current court cases (according to the NY Times) against the Trump administration. None have yet made it to the Supreme Court for final determination. As each judge at each level weighs in, media (both legacy and digital) trumpet (pun intended) the results with “unconstitutional” or “vindicated” headlines/chyrons. But none of these verdicts are final until the Supreme Court decides.

Another recent example involves the Executive Branch ignoring court decisions. The Trump administration allegedly (at the time I write this, the facts aren’t all in) sent Venezuelan illegal aliens to prisons in El Salvador despite a district court judge’s injunction. Assume for a second that it’s true: they ignored the court. What happens now? The judge could find some officials in contempt, but what would that mean? Who would jail them? The administration has already sent a case to the Supreme Court asking that the very recent (post 1960s) practice of district courts issuing nationwide injunctions be invalidated, which would either enable effective government or precede authoritarianism, depending on your views of the administration.

Also, the courts have often stated they won’t rule on “Political Questions” a doctrine which holds that there are disagreements that are either outside the court’s jurisdiction or beyond its competence. In so doing, the Judiciary Branch says in effect, “don’t drag us into your political disagreements, work it out as politics between the parties.” While this may seem cowardly to some, it avoids the court setting precedents over issues that then resonate throughout the entire system. It’s like Mom & Dad telling the boys to “work it out for themselves,” because neither of them will like their parents’ intervention.

Perhaps this clarifies the separation of powers. More likely, it doesn’t. That’s because, contra what the talking heads say online, it isn’t always clear who has the right to do what. And even when it is, there are limits and loopholes and things that nobody wants to argue about in court, because while the argument is still active, either side can win. And the parties involved often switch sides based on who sits in what office. Once the Supreme Court rules in such cases, the game is over.