Imbalance of Powers | Bleader

Imbalance of Powers


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A few days ago the New York Times carried a story on its front page about changes in the civics test that immigrants have to pass to become citizens. The new test makes rote learning less important than a grasp of the ideas that have shaped America. For instance, this question is out: "How many branches are there in the United States government?" And this one's in: "What stops one branch of government from becoming too powerful?"

Interesting question. At one time I'd have answered, the other two. The three branches of government -- the executive, the legislative, and the judicial -- hold each other in check. But even though that's what we're taught in school, and it's what we'd like naturalized Americans to believe, how true is it really? 

Be sure to read Tori Marlan's cover story in the new issue of the Reader on Mohamed Mohamed Hassan Odaini,  a young Yemeni man who's been a prisoner in Guantanamo for the past five years. Consider the glimpse it offers of Congress subverting our system of checks and balances. "The Republican-controlled Congress did what it could to help the Bush administration stave off judicial oversight," Marlan writes. "After the Supreme Court ruled [that Guantanamo prisoners could challenge their detention in U.S. courts], it passed the Detainee Treatment Act of 2005, stripping Guantanamo prisoners of their access to U.S. courts. When the Supreme Court ruled that the law had no effect on already pending cases, Congress dotted that i by passing the Military Commissions Act of 2006."

This is a snapshot of Congress as presidential toady, sucking up to government's alpha branch by cutting the geeky judiciary down to size. Among conservatives, curbing the courts has long been regarded as righteous behavior, and given the changes in the Supreme Court, we may soon find liberals replacing them in the chorus. "Activist court decisions have undermined nearly every aspect of public policy," Ed Meese, who'd been Ronald Reagan's attorney general, told a Senate committee in 1997. "Congress should exercise its power to limit the jurisdiction of the federal courts." Congress has tried. One big issue facing the U.S. Supreme Court in its new term is how much leeway federal judges have to think for themselves in the face of the federal sentencing guidelines Congress has set. Perhaps what we really have in the U.S. is less a balance of power than a rock-paper-scissors arrangement: the executive bullies the legislative, which bullies the judicial, which now and then bullies the executive.

Here are ruminations from another era about executive power:

"The irony is that all of us for years have been defending the presidential prerogative and regarding the Congress as a drag on policy. It is evident now that this delight in a strong presidency was based on the fact that, up to now, all strong presidents in American history have pursued policies of which one has approved. We are now confronted by the anomaly of a strong president using these arguments to pursue a course which, so far as I can see, can lead only to disaster. It is not hard to assert a congressional role; but, given the structure of the American system, it is very hard to see how the Congress can restrain the presidential drive toward the enlargement of the war. Voting against military appropriations is both humanly and politically self-defeating."

The year was 1967, the president Lyndon Johnson, the disaster Vietnam, and the ruminator Arthur Schlesinger Jr.  Selections from Schlesinger's private journals have just been published as a book, Journals, and an excerpt (registration or purchase required) that includes the above passage appears in the October 11 New York Review of Books. Yet Democratic senators such as Fulbright, Church, Morse, McGovern, Kennedy, and McCarthy did speak out against the war. Compared to the feckless Republican performance 40 years later, Democrats rose in insurrection.

But it would be 1974 and the resignation of President Nixon before it was possible to say that in the long run the checks had checked and the balances had balanced. Maybe equilibrium only exists in the long run. Maybe the none-too-reassuring answer to that new question on the civics test is simply -- time.

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