Separation Of Powers

One of the many things wrong with the financial bailout bill passed last September, George Will argues, is its unconstitutional nature: it vested the executive branch with powers reserved solely to Congress. For much the same reason that the line-item veto was ruled unconstitutional and why modern war resolutions ought to be considered unconstitutional (that will be the day), the legislative branch cannot delegate authority specifically granted to it by the Constitution to another branch. Arguably, separation of powers has been a dead letter in some respects for a very long time. The notion of checks and balances was a clever Federalist trick to make it seem as if their proposed usurpation and concentration of power successfully attempted at Philadelphia was actually a guard against usurpation and concentration of power. The Federalists were nothing if not good salesmen! Patrick Henry memorably and correctly observed the flaw of the “checks and balances” argument in favor of a more powerful central government during the ratification debates:

There will be no checks, no real balances, in this Government. What can avail your specious imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances.

The idea that members of the federal government would work to counterbalance and limit one another, rather than collaborate to enhance their collective power, sounded very nice, but it was always pretty far-fetched. That said, the impulse to resist concentrating additional power in any branch of the federal government is a welcome and long overdue one.

Congress has delegated its equally vital warmaking powers to the executive branch for decades, so I find it hard to imagine that any court is going to strike down the EESA. Indeed, if anyone were to file a suit contesting the constitutionality of the Act my guess is that the fig leaf of a Congressional vote would be treated as proof that EESA is consistent with separation of powers, just as war resolutions are used to provide some minimal cover for illegal wars. One of the reasons the Framers insisted that the power of the purse be held solely by the legislative was to prevent the executive from arbitrarily disbursing money, and so acquiring power for itself, unaccountably and without consent of the legislature.

As with war powers, Congress has preferred once again to hand over its proper role to the executive. It is not an accident that such a dreadful bill came out of a rushed process in which alarmist cries of doom panicked much of the public and most members of Congress into a stampede to give the executive whatever it wanted. Legislation passed in haste and fear tends to enhance arbitrary power, while patience and deliberation are necessary guards against it. This is why our system was designed to be slow-moving and filled with obstacles to action, which is a system that now seems utterly unsuited to the character of an impatient people.