Some wag recently joked about how every progressive desire is OK due to the “Good Intentions Clause” in the Constitution. Funny stuff.
Two good op-eds in today’s WSJ on the separation of powers, checks and balances, and disputes among the 3 branches of government.
These barriers between the branches are not formalities—they were designed to prevent the accumulation of excessive power in one branch. As the Supreme Court explained in New York v. United States (1992), the “Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”
The barriers also reflect the Framers’ belief that some powers are better suited for a particular branch of government because of its institutional characteristics.
Congress has the exclusive authority to make law because lawmaking requires pluralism, debate and compromise, the essence of representative government. If Congress cannot achieve consensus, that doesn’t mean Congress is “broken.” A divided Congress reflects a divided people. Until there is a compromise acceptable to the majority, the status quo is the only correct path. An impasse emphatically does not warrant a president’s bypassing Congress with a pen and phone, as Mr. Obama claimed the power to do early this year.
…If Mr. Obama can get away with this, his successors will be tempted to follow suit. A Republican president, for example, might unilaterally get the Internal Revenue Service to waive collection of the capital-gains tax. Congress will be bypassed, rendering it increasingly irrelevant, and disfranchising the American people.
The House challenge involves crucial questions about the architecture of American government and the separation of powers—questions that haven’t been joined in this kind of challenge at the courts. Mr. Boehner contends that Mr. Obama’s habit of amending or suspending (not enforcing) statutes that conflict with his political goals have usurped “all legislative powers herein granted” by Article I to Congress.
In the nearby feature, the suit’s architects, David Rivkin and Elizabeth Foley, explain the larger constitutional import. By failing to faithfully execute the laws—on health care, immigration, drugs, education and much else—Mr. Obama is undermining political accountability and, by transferring too much power from one branch to another, individual liberty.
Mr. Rivkin and Ms. Foley’s theory is debatable, not least by those who would prefer that the judiciary stay out of disputes between the two political branches. Jurists like Justice Antonin Scalia or Judge Laurence Silberman of the D.C. Circuit Court of Appeals would need to be persuaded on the merits. James Madison intended that the political branches would be in tension, and in most cases it is better for them to compete to resolve disputes themselves as they have for most of this country’s 238 years.