When John Adams wrote the Massachusetts Constitution, the world’s oldest functioning written constitution, still in effect today, he noted the importance of having distinct executive, legislative and judicial powers. He wanted to guarantee "a government of laws and not of men."
Our national Constitution adopts the same idea — that these three powers provide a constant check on each other, and prevent any one man, woman or institution from becoming so powerful as to dominate the others.
I think our Founding Fathers would be worried about several contemporary developments. Let me give three examples.
1. On at least 13 separate occasions, President Barack Obama has unilaterally delayed the required, statutory implementation of various parts of his signature health care law, the Affordable Care Act.
2. Some half-dozen state attorneys general — including the newly elected one in Virginia — have refused to enforce or defend their states’ laws on same-sex marriage.
3. The Obama administration is unwilling either to press for changes in federal laws against marijuana or to enforce them in states that have recently legalized pot. So if the executive won’t enforce the law, then is marijuana still illegal under federal law, or is it only illegal when and where the feds say it is? Or only when the offenders are certain kinds of people?
We might feel one way or another about the substance of any of these three topics. Either way, we should be troubled by the increasing, and increasingly arbitrary, nature of executive power today. This unsettling trend predates our current president and will not end with his term in office. It is not a partisan or ideological question. But it is one that has serious implications for the American system of government.
Article II of the Constitution says that the president "shall take Care that the Laws be faithfully executed." This basic requirement seems to be falling further and further out of fashion.
Presidents from Ronald Reagan to Bill Clinton asked for the power to exercise a line-item veto. When Clinton finally got the power, the Supreme Court held it unconstitutional because it gave the president power to amend or repeal laws passed by Congress.
Just a few years later, President George W. Bush aroused Democrats’ ire by making "signing statements." Even as he signed bills into law, Bush would signal his intent not to enforce them as written.
Move forward again to President Obama’s now frequent declarations that he is changing the way he interprets or will enforce or defend the laws of the land. He is fond of saying he will act if Congress does not. He sometimes acts contrary to what Congress has passed and he has signed.
When the executive acts without legislative consent or ignores a statutory command, we run the risk of arbitrary rule and of losing our American birthright of government by the people. The people also are deprived of the balance of power our Constitution built into the lawmaking process to protect minorities.
This spring we celebrate the 60th anniversary of Brown v. Board of Education. The anniversary reminds us of a time when our political process had become stuck and was incapable, for decades, of addressing an injustice. The courts stepped in and forced a resolution, citing the higher authority of the Constitution’s equal protection clause.
The modern accumulation of executive power has less noble aims, and usually appeals to no higher law than prevailing public opinion. John Adams would not be pleased.
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Garvey is president of The Catholic University of America in Washington.