The recent controversy over President Obama's decision to exchange five high-ranking Taliban leaders for Army Sgt. Bowe Bergdahl focused largely on the price paid. There was less focus on Obama's ignoring a federal law that required him to notify Congress 30 days in advance of releasing detainees at Guantanamo Bay, Cuba. Laws such as this have been enacted to allow vital oversight of actions of such consequence. If this were an isolated instance, it could be dismissed. It is not.
After announcing that he intended to act unilaterally in the face of congressional opposition, Obama ordered the non-enforcement of various laws (including changes to the Affordable Care Act), moved hundreds of millions of dollars away from the purposes for which Congress had approved the spending, and claimed sweeping authority to act without judicial or legislative controls.
A growing crisis in our constitutional system threatens to fundamentally alter the balance of powers and accountability within our government. This crisis did not begin with Obama, but it has reached a constitutional tipping point during his presidency. It is enough to bring the two of us--a liberal academic and a conservative U.S. senator--together in shared concern over the future of our 225-year-old constitutional system of self-governance.
In our view, the gridlock in Washington is not simply the result of toxic divisions. The dysfunctional politics we are experiencing may in part be the result of a deeper corrosion: a dangerous instability that is growing within our Madisonian system. No one can predict with certainty what will follow the Obama administration. That uncertainty offers a window of opportunity for members of both parties, academics and others to come together to focus on three questions that may determine the viability of the separation of powers for decades to come.
First, we need to discuss the erosion of legislative authority within the evolving model of the federal government. There has been a dramatic shift of authority toward presidential powers and the emergence of what is essentially a fourth branch of government: a vast network of federal agencies with expanded legislative and judicial power.
Second, much of the politics that has alienated so many Americans is due to the fact that courts routinely refuse to review constitutional disputes because of an overly constricted view of the standing of lawmakers to sue and other procedural barriers.
Finally, Congress should address the rising share of federal spending that is not under its control. Last year, only 35 percent of spending was appropriated and voted on.
The Supreme Court found in National Labor Relations Board v. Noel Canning last week that the president violated the separation of powers in his use of his appointment powers. Also last week, House Speaker John Boehner (R-Ohio) announced a lawsuit challenging the Obama administration's unilateral actions. Such cases will take years to resolve, and Congress needs to speak with one voice as an institution at this critical time. The Canning decision should be a catalyst for all members to look at the comprehensive loss of legislative authority in our system.
Editorial on 07/01/2014