Congress needs to reassert its vital role

Democratic governments worldwide differ somewhat in how they are structured but one common feature is a separation or division of governmental powers to protect against too much power being centralized in one person or a single institution. A reading of the U.S. Constitution reveals the unique arrangements our founders created to prevent abusive centralized control. Those arrangements include a separation of powers and checks and balances at the national level found in Articles I, II, and III; bicameralism found in Article I and a dividing of powers between the national government’s delegated powers and the states’ reserved powers made explicit in the 10th Amendment.

The U.S. Constitutional separation of powers provisions along with checks and balances provisions at the national level have invited judicial interpretation over the years resulting in certain legal principles which follow. Most obvious among the principles is the recognition that national governmental powers have been separated into legislative, executive and judicial functions and a separate branch of government has been created to perform the assigned functions. Further, governing officials of each branch are accountable to different voters or other officials as evidenced by Constitutional provisions providing for the statewide popular election of U.S. Senators to six year terms; U.S. Congressional District popular election of U.S. House members to two year terms; national popular election of Presidential Electors at the state level to elect a president for a four year term ; and the appointment of members of the federal judiciary by the president subject to U.S. Senate confirmation.

Not satisfied with merely separating powers between three branches of government, the framers instituted a system of checks and balances to prevent or correct an abuse of legislative, executive or judicial powers. Not obvious from a reading of Articles I, II and II is the legal principle that officials of each branch are prohibited from further delegating powers placed in trust with them by “We the People” to officials of a sister branch of government or any private party.

Also, not obvious is the principle that officials of each branch are prohibited from usurping the powers delegated by “We the People” to a sister branch of government.

The framers deserve great credit for devising this complicated scheme of governmental structuring to ward off the emergence of centralized abusive authoritarian governance. Yet they were not naïve, they understood that the failings of humans might result in the emergence of the abusive governance they sought to prevent.

They understood that ultimately, we must rely upon our governing officials to honor their constitutional roles and act accordingly. Today we realize that their fears were warranted. Over time, Congress has delegated more legislative powers to the executive branch under the guise of delegating wholesome executive discretion or quasi-legislative powers and presidents have added to their powers by asserting principles of unitary executive theory. In some cases, the U.S. Supreme Court has rejected these violations of our Constitutional separation of powers principles and in other cases the Court has advanced inventive logic to uphold the challenged actions.

Under the second Trump Administration our concerns regarding the emergence of centralized abusive governance have turned to alarm as our pretend monarch has impounded Congressionally appropriated funds, dissolved Congressionally created government units, waged war without Congressional consultation and approval and trampled upon individual liberties regularly. As these abuses occur, the majority party members of the U.S. Senate and House have chosen not to challenge the executive usurpation of their Constitutional prerogatives, and the US Supreme Court has resorted to the use of a shadow docket to allow the abuses to continue pending final judgment based upon the merits. As our framers feared, human failings have led to a skirting of all the Constitutional safeguards intended to protect against centralized abusive authoritarian governance.

It now falls upon “We the People” to counter this abusive rule by asserting our right to vote and to elect members of Congress who will not surrender legislative powers to the executive and will resist any executive effort to usurp those powers. Partisan loyalty on both sides of the aisle must yield to Constitutional responsibilities.

Perhaps an expanded oath of office should be introduced by Congress to remind the membership of their Constitutional duty to protect their turf from all intruders and to refrain from assigning their responsibilities to others.