Biden on Executive Power

Miles's Law: where you stand depends on where you sit.  

Charlie Savage,   Maggie Haberman and Jonathan Swan at NYT:

If he is elected to a second term, President Biden pledged that he will go to Congress to start any major war but said he believed he was empowered “to direct limited U.S. military operations abroad” without such approval when such strikes served critical American interests.

“As president, I have taken great care to ensure that military actions carried out under my command comply with this constitutional framework and that my administration consults with Congress to the greatest extent possible,” he wrote in response to a New York Times survey of presidential candidates about executive power.

“I will continue to rigorously apply this framework to any potential actions in the future,” he added.

The reply stood in contrast to his answer in 2007, when he was also running for president and, as a senator, adopted a narrower view: “The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”

Not just war powers. 

In 2019, for example, Mr. Biden said that if elected, he would order the Justice Department to review and potentially replace a legal policy memo that says sitting presidents are temporarily immune from indictment. He strongly criticized the department’s interpretation of the Constitution, which limited the special counsel investigating the Trump campaign’s ties to Russia and Mr. Trump’s attempts to impede that inquiry, Robert S. Mueller III.

But Mr. Biden never followed through on that pledge. He is now protected himself by the Justice Department’s theory since a special counsel, Robert Hur, is investigating how several classified documents were in his possession when he left the vice presidency.

Adams and the Executive

John Adams: Executive Power and His Presidency
By Gary J. Schmitt  and Joseph M. Bessette
Social Science Research Network

This essay analyzes John Adams’s understanding of executive power and Adams’s practice as president. Its principal focus is the constitutional issues surrounding Adams’s handling of the national security crisis with France and the resulting Quasi-War. It examines Adams’s views on executive leadership, his administration’s relationship with Congress, and Adams’s relationship with his own cabinet–all within the context of the rise of national partisan politics and the emergence of the Republican Party.

Download Working Paper PDF

...

 In his writings Adams had advocated that a nation’s chief executive should provide balance to the political order by standing above and, when needed, resolving disputes between the lower and upper legislative chambers—and more deeply, the classes they would represent. The problem was, this was not really America where the real political divide had become one of parties, not social class.Adams’s desire to stand above this political divide meant that he never considered the possibility of using his leadership position to balance the growth of the Republican party with a coherent, more populist Federalist party agenda of its own. Instead, the High Federalists, who believed that the government’s design and practice was to minimize its republican character as much as was feasible, were free to drive the Federalist persuasion into a political dead end. Yet, not to be forgotten, it was also Adams’s sense of independence, when combined with the  constitutional and institutional tools at the president’s disposal, which allowed him to bring the crisis with France to a successful conclusion.

SCOTUS Canels Loan Cancelation

 From the syllabus of Biden v. Nebraska:

The text of the HEROES Act does not authorize the Secretary’s loan forgiveness program. The Secretary’s power under the Act to “modify” does not permit “basic and fundamental changes in the scheme” designed by Congress. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 225. Instead, “modify” carries “a connotation of increment or limitation,” and must be read to mean “to change moderately or in minor fashion.” Ibid. That is how the word is ordinarily used and defined, and the legal definition is no different.

The authority to “modify” statutes and regulations allows the Secretary to make modest adjustments and additions to existing provisions, not transform them. Prior to the COVID–19 pandemic, “modifications” issued under the Act were minor and had limited effect. But the “modifications” challenged here create a novel and fundamentally different loan forgiveness program. While Congress specified in the Education Act a few narrowly delineated situations that could qualify a borrower for loan discharge, the Secretary has extended such discharge to nearly every borrower in the country. It is “highly unlikely that Congress” authorized such a sweeping loan cancellation program “through such a subtle device as permission to ‘modify.’” Id., at 231.

The Secretary responds that the Act authorizes him to “waive” legal provisions as well as modify them—and that this additional term “grant[s] broader authority” than would “modify” alone. But the Secretary’s invocation of the waiver power here does not remotely resemble how it has been used on prior occasions, where it was simply used to nullify particular legal requirements. The Secretary next argues that the power to “waive or modify” is greater than the sum of its parts: Because waiver allows the Secretary “to eliminate legal obligations in their entirety,” the combination of “waive or modify” must allow him “to reduce them to any extent short of waiver” (even if the power to “modify” ordinarily does not stretch that far). But the challenged loan forgiveness program goes beyond even that. In essence, the Secretary has drafted a new section of the Education Act from scratch by “waiving” provisions root and branch and then filling the empty space withradically new text.

Student Debt Relief and Biden v. Nebraska

Katherine Knott at Inside Higher Ed:

Several Supreme Court justices appeared skeptical of the Biden administration’s plan to forgive up to $20,000 in federal student loans during a nearly four-hour hearing Tuesday.

As expected, the hearing focused on whether federal statute allows the Biden administration to forgive student loans, whether the plaintiffs have standing to challenge the plan and whether the justices should apply a stricter standard in their review of the two lawsuits before the court.

The court’s six conservative justices homed in on questions of fairness and what Congress intended when it authorized the education secretary in 2003 to “waive” or “modify” provisions of student loan programs to ensure that those affected by a national emergency aren’t worse off financially.

The conservative justices seemed to think the Biden plan was too large to say it was a modification. “We’re talking about half a trillion dollars and 43 million Americans,” Chief Justice John Roberts Jr. said. “How does that fit under the normal understanding of modifying?”

Six states—Arkansas, Iowa, Kansas, Missouri, Nebraska and South Carolina—and two Texas residents filed separate lawsuits in the fall to block the debt-relief plan before it began. The states allege that the plan would harm state revenues and agencies that hold student loans, while the Texas individuals take issue with the fact that they didn’t have a chance to comment on the proposal.

Both sets of plaintiffs argue that the Higher Education Relief Opportunities for Students Act of 2003, which the Biden administration says justifies its debt-relief plan, does not authorize that plan.

Knowledge of Government

From the Annenberg Public Policy Center:

After two years of considerable improvement, Americans’ knowledge of some basic facts about their government has fallen to earlier levels, with less than half of those surveyed able to name the three branches of government for the 2022 Annenberg Constitution Day Civics Survey.

The Annenberg Public Policy Center’s annual, nationally representative survey showed notable increases in 2020 and 2021 after tumultuous years that put the role of government and the three branches under a media spotlight. In those two years, the survey was run amid a pandemic and government health restrictions, two impeachment inquiries, a presidential election, an attempt to disrupt congressional certification of the electoral vote, criminal trials of the individuals charged in the assault on the U.S. Capitol, and waves of social justice protests, among other events.

The current survey, released for Constitution Day (Sept. 17), found the first drop in six years among those who could identify all three branches of government, and declines among those who could name the First Amendment rights, though knowledge remained high on some other questions. Additional findings on the Supreme Court will be released next month.

“When it comes to civics, knowledge is power,” said Kathleen Hall Jamieson, director of the Annenberg Public Policy Center of the University of Pennsylvania. “It’s troubling that so few know what rights we’re guaranteed by the First Amendment. We are unlikely to cherish, protect, and exercise rights if we don’t know that we have them.”
Highlights

• Less than half of U.S. adults (47%) could name all three branches of government, down from 56% in 2021 and the first decline on this question since 2016.
• The number of respondents who could, unprompted, name each of the five freedoms guaranteed by the First Amendment also declined, sharply in some cases. For example, less than 1 in 4 people (24%) could name freedom of religion, down from 56% in 2021.
• Over half of Americans (51%) continue to assert incorrectly that Facebook is required to let all Americans express themselves freely on its platform under the First Amendment.
• But large numbers recognize other rights in the Bill of Rights and the veto process.

The Annenberg Constitution Day Civics Survey is a nationally representative survey conducted annually in advance of Constitution Day by the Annenberg Public Policy Center (APPC) of the University of Pennsylvania. This year’s survey of 1,113 U.S. adults was conducted by phone for APPC by independent research company SSRS on August 2-13, 2022. It has a margin of error of ± 3.6 percentage points at the 95% confidence level. The year-to-year changes reported here are statistically significant unless noted otherwise. For the questions and additional data, see the appendix and the methodology statement.

Madison v. AOC

Greg Weiner at NYT:

But if disappointed progressives are looking for a Democrat to blame, they should consider directing their ire toward one of their party’s founders: James Madison. Madison’s Constitution was built to thwart exactly what Democrats have been attempting: a race against time to impose vast policies with narrow majorities. Madison believed that one important function of the Constitution was to ensure sustained consensus before popular majorities could prevail.

Democrats do represent a popular majority now. But for Madison, that “now” is the problem: He was less interested in a snapshot of a moment in constitutional time than in a time-lapse photograph showing that a majority had cohered. The more significant its desires, Madison thought, the longer that interval of coherence should be. The monumental scale of the Build Back Better plan consequently raises a difficult Madisonian question: Is a fleeting and narrow majority enough for making history?

In this Madisonian sense, Democrats are tripping over their own boasts. Even in announcing that the spending plan had been scaled back, President Biden repeatedly called the measure “historic.” No fewer than four times in a single statement, his White House described elements of the Build Back Better framework as the most important policy innovations in “generations.” Nancy Pelosi, the speaker of the House, called the bill the House passed last week “historic, transformative and larger than anything we have done before.”

Support for Unified Government

Jeffrey M. Jones at Gallup:

A new high of 41% of U.S. adults say it is better to have a president and Congress from the same political party. Twenty-three percent would rather have one party control the presidency and the other control Congress, while 32% say it makes no difference to them.

 

Checks and Balances in Action

Madison in Federalist 51:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

During the Obama years, Republican state officials sued to stop administration policies.  Democratic officials  have been doing the same since 2017.

 An editorial in The Daily Sentinel (Grand Junction, CO):

 Montana’s Democratic Gov. Steve Bullock hit the nail on the head with a tweet following a federal judge’s ruling Friday that William Perry Pendley has been serving unlawfully as the acting director of the Bureau of Land Management.

“Today’s ruling is a win for the Constitution, the rule of law, and our public lands,” Bullock wrote.

...

U.S. District Judge Brian Morris said Pendley has served as the acting director of the BLM unlawfully for 424 days without being confirmed to the post by the U.S. Senate.

Pendley’s “ascent to Acting BLM Director did not follow any of the permissible paths set forth by the U.S. Constitution or the (Federal Vacancies Reform Act),” Morris wrote in his opinion. “Pendley has not been nominated by the President and has not been confirmed by the Senate to serve as BLM Director.”

...

“Under Federal Defendants’ theory, a President could ignore their constitutional appointment responsibility indefinitely and instead delegate authority directly or through Cabinet Secretaries to unconfirmed appointed officials. Such an arrangement could last for an entire presidential administration. In fact, the case before the Court presents that scenario.”

The administration’s theory “flies in the face of the constitutional design.”

An Interior spokesman told CNN the administration will appeal immediately. In the meantime, Morris gave both sides of the case 10 days to file briefs about which of Pendley’s order must be vacated.

We all intuitively know that someone exercising the power of BLM director without Senate confirmation doesn’t square with the law.

Witnessing in action the checks and balances design of our Constitution is a thing of beauty.

Warning from Former Senators

A Washington Post open letter from 70 former senators from both parties:

Congress is not fulfilling its constitutional duties. Much of the responsibility rests on the Senate. We are writing to encourage the creation of a bipartisan caucus of incumbent senators who would be committed to making the Senate function as the Framers of the Constitution intended.

As their first priority, the Framers explicitly entrusted all legislative responsibility in Article I of the Constitution: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” To the extent that Congress doesn’t function as the Framers intended, policymaking is left to the less democratic executive and judicial branches.

Examples of Congress ceding its powers to the executive through the years include the power to regulate international trade, the power to authorize the use of military force in foreign conflicts and, when the president declares national emergencies, the power of the purse. In addition, the partisan gridlock that is all too routine in recent decades has led the executive branch to effectively “legislate” on its own terms through executive order and administrative regulation. The Senate’s abdication of its legislative and oversight responsibilities erodes the checks and balances of the separate powers that are designed to protect the liberties on which our democracy depends.

Anecdotally, we have been told by sitting members that the diminished state of the Senate has left them doubting whether there is any point in continuing to serve, and it has caused potential candidates to question whether the reality of Senate membership is worth the considerable effort and expense of running for office.

High Crimes and Misdemeanors

At AEI, Joseph M. Bessette and Gary Schmitt have reissued their 1998 report, "What Does `High Crimes and Misdemeanors' Mean?"

The United States Constitution establishes that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”1 Although British law employed the term for centuries before the American Revolution, the definition of what constitutes “high crimes and misdemeanors” has long been a subject of ambiguity. Even studying the Constitutional Convention and subsequent ratifying debates sheds only a little light on how the founding generation separated impeachable offenses from occasional maladministration.

Demystifying this portion of Article II requires a close study of American legal history, which ultimately illustrates the phrase’s prudential breadth of meaning. At its core, impeachment has historically turned on acts that either impeded a constitutional officer’s capacity to execute their duties or grossly violated public trust. In fact, a number of impeachment trials have revolved almost exclusively around events that were disconnected from an officeholder’s responsibilities, thereby demonstrating that the definition of impeachable infractions does not stop at the abuse of official powers.

The impeachment trials of Sen. William Blount in 1799, Judge Robert W. Archbald in 1912, and Judge Halstead L. Ritter in 1936, among other examples, help illustrate this point. Although he was ultimately acquitted, Congress accused Blount of working with the British to profit from a proposed invasion of Florida and Louisiana—an early indication of the view that an officer could be impeached for conduct unrelated to their role in government. An overwhelming majority convicted Archbald for using his office to receive financial gains from the coal and railroad industry, while Ritter’s case concluded that income tax evasion definitively constituted grounds for impeachment.

If the historic context strongly suggests that “high crimes and misdemeanors” entails a broad range of activities, identifying the duties and scope of public trust associated with each constitutional office is crucial to determining when an officeholder has committed an act warranting impeachment. For example, judges, members of Congress, and the president all take an oath to support the Constitution, but only the executive branch is explicitly tasked with preserving, protecting, and defending the document. As the retainer of an immense share of public trust, the commander in chief cannot be exempt from any infractions that would be considered impeachable for any lower office, provided they were not in direct service of constitutional obligations.

The question of impeachment depends less on a strict legal definition than it does a dedication to political and moral principle. Impeachment exists to protect the public while encouraging those entrusted with political power to live up to the high responsibilities of their office.

The Federalist Papers and a Court Case

Judge Ketanji Brown Jackson explaining why former White House counsel Don McGahn has to testify before Congress:

DOJ’s arguments to the contrary are rooted in “the Executive’s interest in ‘autonomy[,]’” and, therefore, “rest[] upon a discredited notion of executive power and privilege.” Id. at 103. Indeed, when DOJ insists that Presidents can lawfully prevent their senior-level aides from responding to compelled congressional process and that neither the federal courts nor Congress has the power to do anything about it, DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards. In reality, it is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny. See The Federalist No. 51 (James Madison); see also Buckley v. Valeo, 424 U.S. 1, 120 (1976). Thus, when presented with a case or controversy, it is the Judiciary’s duty under the Constitution to interpret the law and to declare government overreaches unlawful. Similarly, the House of Representatives has the constitutionally vested responsibility to conduct investigations of suspected abuses of power within the government, and to act to curb those improprieties, if required. Accordingly, DOJ’s conceptual claim to unreviewable absolute testimonial immunity on separation-of-powers grounds—essentially, that the Constitution’s scheme countenances unassailable Executive branch authority—is baseless, and as such, cannot be sustained.

...
 To the contrary, the Framers spoke specifically to the importance of maintaining an established rule of law to regulate government conduct—and, thus, to the significance of the judicial function—when they explained why a system that separates the powers of government and includes checks on the exercise of government power is crucial to sustaining a democracy:

...[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of the attack. . . . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

The Federalist No. 51 (James Madison). The Framer’s specific reference to providing
government officials in each of the separate branches with “the necessary constitutional
means and personal motives to resist the encroachments of the others[,]” id., is especially noteworthy, because, here, DOJ’s artificial limit on the federal courts’ jurisdiction to consider disputes between the branches seemingly decreases the incentive for the Legislature or the Executive branch to behave lawfully, rather than bolsters it, by dramatically reducing the potential that a federal court will have occasion to declare conduct that violates the Constitution unlawful. And there can be no doubt that providing the branches with the power to limit each other’s behavior, for the protection of the People, was the original intent of the Framers, as evidenced both by the constitutional scheme they adopted and by the remarks they made to explain the separation-of-powers construct. Indeed, far from DOJ’s present suggestion that the separation-of-powers construct means that the political branches must resolve their disputes in the political arena and never head to federal court, Federalist No. 51 proceeds to explain that political checks are not the sole solution, and that the branches themselves must also be vested with the power to police the abuses of the others. See id. (“A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. . . . We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.”).

...
 In short, DOJ’s implicit suggestion that compelled congressional process is a ‘zero-sum’ game in which the President’s interest in confidentiality invariably outweighs the Legislature’s interest in gathering truthful information, such that current and former senior-level presidential aides should be always and forever immune from answering probing questions, is manifestly inconsistent with a governmental scheme that can only function properly if its institutions work together. See The Federalist No. 51 (James Madison).

...

Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. See The Federalist No. 51 (James Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville, Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.

Parties, Opinion, and Presidential Power

From Pew:

Most Americans continue to say that it would be “too risky” to give the nation’s presidents more power, but the share expressing this opinion has declined since last year, with most of the change coming among Republicans.

Currently, 66% of the public says “it would be too risky to give U.S. presidents more power to deal directly with many of the country’s problems.” About three-in-ten adults (29%) offer the contrasting opinion that “problems could be dealt with more effectively if U.S. presidents didn’t have to worry so much about Congress or the courts.” In March 2018, 76% of the public said it would be too risky to give presidents more power.

The survey by Pew Research Center, conducted July 10-15 among 1,502 adults, finds that Republicans’ views on this question have changed markedly since last year. About half of Republicans and Republican-leaning independents (51%) now say it would be too risky to give presidents more power, down from 70% last year.

The share of Republicans who say presidents could operate more effectively if they did not have to worry so much about Congress and the courts has increased 16 percentage points since then, from 27% to 43%.

Contempt of Congress and the Separation of Powers

Kevin Kosar at LegBranch:

Congress’ contempt problem, in short, is a separation of powers one. Once the House votes affirmatively, the process moves to another branch of government. If the House seeks a criminal prosecution, it refers the matter to the Department of Justice — yes, the same Department of Justice that Barr heads. When Congress held an Environmental Protection Agency administrator in contempt of Congress in the 1980s, DOJ’s Office of Legal Counsel declared it was not obligated to present the matter before a grand jury. In short, game over, Congress.

The House of Representatives could also attempt to enforce the resolution via civil suit. This avoids the bother of having to rely on DOJ but requires help from the third branch, which tends to take a very long time to reach a decision. When Congress pursued two contempt cases during the George W. Bush Administration, the legal wrangling took two years. No verdict was rendered, as Congress and the executive branch cut a deal to settle the matter. Seven years later, the Holder contempt proceeding has still not concluded.

Congress could use its inherent contempt authority to escape this intra-branch conundrum. The House would order the chamber’s sergeant-at-arms to arrest an individual charged with contempt. Afterward, the charges would be presented, a trial would be scheduled and then a vote to decide guilt would take place. Punishment in the form of fines could be meted out. This sort of proceeding has not been attempted in decades, not least because it consumes a ton of the House’s valuable floor time. And using inherent contempt against an administration official like an attorney general is exceedingly high-stakes — what if the sergeant-at-arms is rebuffed by DOJ’s police?

Like so many aspects of the First Branch, its contempt power is broken. Fixing it would require updating the ancient, mothballed inherent contempt processes to ensure that the proceedings are fair and expeditious.

The Executive Power

Julian Davis Mortensen at The Atlantic:

After years of research into an enormous array of colonial, revolutionary, and founding-era sources, I’m here to tell you that—as a historical matter—this president-as-king claim is utterly and totally wrong. I’ve reviewed more than a thousand publications from the 17th and 18th centuries for each instance of the word root exec-, and have read most of those texts from cover to cover with the topic of presidential power squarely in mind. I’ve read every discussion of executive power and presidential authority that appears in the gigantic compilation of archival materials known as the Documentary History of the Ratification of the United States Constitution. And with the help of a team of research assistants, I’m most of the way through flyspecking the full records of the Continental Congress—including committee reports, floor debates, and delegate correspondence—with the same question in mind.

All this work has left me with both the confidence to share this conclusion and the sense of obligation to do so as bluntly as possible. It’s just not a close call: The historical record categorically refutes the idea that the American revolutionaries gave their new president an unspecified array of royal prerogatives. To the contrary, the presidency that leaps off the pages of the Founders’ debates, diaries, speeches, letters, poems, and essays was an instrument of the law of the land, subject to the law of the land, and both morally and legally obliged to obey the law of the land....

“The executive power” granted at the American founding was conceptually, legally, and semantically incapable of conveying a reservoir of royal authority. The real meaning of executive power was something almost embarrassingly simple: the power to execute the law. Overwhelming evidence for this point pervades both the Founders’ debates and the legal and political theory on which their discussions drew.

Listen to how Gouverneur Morris framed the problem for his fellow delegates in Philadelphia. The central challenge of constitutional governance, he said, was to safely distribute each of “the three powers” that everyone knew so well: “one … the power of making[,] another of executing, and a third of judging, the laws.” Under this tripartite system, the function of executive power was both straightforward and indispensable—to implement instructions issued by a valid exercise of legislative power. In a famous 1774 Election Day sermon, Gad Hitchcock stated the consequence plainly: “The executive power is strictly no other than the legislative carried forward, and of course, controllable by it.” These weren’t idiosyncratic views. The catechistic statement of three interlocking powers served as a universal grammar for debating constitutional governance. As one exasperated British reviewer said of the relentless trinitarianism in John Adams’s 1787 constitutional treatise, “Upon this point, like Lord Chesterfield with the Graces, Dr. Adams dwells for ever.”

Public Opinion on the State of the Democratic System

Chris Jackson and Mallory Newall at Ipsos:

A new poll conducted by Ipsos, on behalf of the University of Virginia Center for Politics, looks at American views of the current state of the democratic system. While the Constitution created the three branches of government to be equal, only slightly more than a third (35%) of Americans think the Presidency, Congress, and the Supreme Court have the same amount of power. Of the three branches, Americans are most likely to consider the Supreme Court the most powerful (22%), closely followed by Congress (20%), and lastly, the Presidency (17%).

Americans think the peaceful handover of power after elections and both parties respecting the results of elections (both 91%) are essential for American democracy, with broad agreement across party lines. Four in five also believe that the two-term limit for the president is essential (79%), with Independents (87%) more likely than Democrats or Republicans (both 78%) to say this. While nearly two-thirds of Americans (62%) think the president’s ability to veto legislation passed by Congress is essential for our democracy to work well, views are highly split by partisanship. Four in five Republicans (83%) agree with this, while only 61% of Independents and half of Democrats (49%) say the same. One third or fewer Americans think lifetime appointments to the U.S. Supreme Court (33%) and the filibuster in the Senate (30%) are essential for the healthy functioning of American democracy.

Basic Madison

James Madison's Montpelier has a  basic video explainer on James Madison, the Constitution, and The Federalist:

Madison and Discretionary Spending

John Haskell at the Legislative Branch Capacity Working Group:

A close examination of federal discretionary spending totals over the last 25 years reveals an unmistakable trend: under Democratic presidents discretionary spending increases were modest, and there were even decreases in some years; Republican presidents, by contrast, were more likely to preside over large discretionary spending increases usually in both defense and non-defense categories. These trends generally prevailed regardless of party control in Congress.

Why?  One reason is timing. Clinton, came to office just after the Cold War ended and military spending was plummeting. Both Bushes had wars with Iraq, and Bush 43 also had to react to 9/11.  But there is a structural element as well.

The modern day “peculiar institution” in this country is the U.S. Senate. By design, the system gives unusual leverage in the legislative process to just one senator, and certainly the minority party. If the minority party sticks together and has at least 41 cohesive members, both sides have to be reasonably satisfied for the bill to pass.

With a Republican president, Democrats in Congress, whether in the majority or not, are able to bargain effectively enough for the final tally of appropriations (usually an omnibus in recent years) to exceed what the GOP president wants. With a Democratic president, Republicans have the leverage, even with a congressional minority. For example, Clinton’s budget requests were barely if at all exceeded throughout his presidency, regardless of party control in Congress, and Obama’s request numbers, even though his requested increases in some years were modest, were not met.

...
What’s the bigger lesson? In the spirit of James Carville: it’s James Madison, stupid. Don’t be fooled by the common focus on “presidential government.” Our separated system is more complicated than that and can lead to counterintuitive policy results, especially if one thinks that presidents are the main policy drivers. When it comes to spending, decision-making involves a complex interaction among both houses of Congress and the president.

One could argue recent history shows that if discretionary spending restraint is the goal, a Democratic president and a Republican Congress seem to provide the best result, with a Democratic president and a Democratic Congress (without 60 senators) second-best. You want to prime the pump? Elect a Republican president, who invariably will propose increased defense spending which, at the end of the day, will come with more domestic dollars thanks to Democratic leverage in the Senate.

Rosenstein on Justice

Deputy Attorney General Rod J. Rosenstein Delivers Remarks at the Bar Association of Montgomery County’s Law Day CelebrationRockville, MD ~ Friday, May 4, 2018

 The interplay among the branches is incredibly complex, and our Constitution contemplates numerous checks and balances.

In the executive branch, we take an oath. We pledge to support and defend the Constitution of the United States against all enemies, foreign and domestic. We promise to bear true faith and allegiance to the same. We attest that we take this obligation freely, without any mental reservation or purpose of evasion. And we commit to well and faithfully execute the duties of the office, so help me God.

Faithfully enforcing the law is not about following a simple set of instructions. As the great champion of the law Robert H. Jackson put it, “law enforcement is not automatic.” Enforcing the law requires discretion and judgment.

When carrying out our enforcement duties, the executive branch is required to enforce the law as written by the legislature, and as interpreted by the judiciary.

At the Department of Justice, our duty is in our name. Attorney General John Ashcroft famously said that we are the only cabinet department with a name that articulates a moral value.
...

Our Bill of Rights, containing the first ten amendments, is often regarded as the pride of American government. But the Constitution originally had no Bill of Rights. The issue was considered during the Constitutional Convention in Philadelphia in 1787, but the Constitution was ratified without it.

The Framers were more concerned about our government’s structure than a written guarantee of rights, because a written guarantee is only as powerful as the system in place to protect it. Our constitutional structure, and the separation of powers embodied in that structure, represents our government’s defining feature.

Justice Scalia explained that “it is those other humdrum provisions—the structural, mechanistic portions of the Constitution that pit, in James Madison’s words, ‘ambition against ambition,’ and make it impossible for any element of government to obtain unchecked power— that convert the Bill of Rights from a paper assurance to a living guarantee.”

The Founders dispersed power both horizontally and vertically. The three branches of the federal government check one another. The states and the federal government check one another. And the people check both the federal and the state governments.

Our system of government is not self-executing. It relies on wisdom and self-restraint. In a democratic republic, liberty is protected by cultural norms as well as by constitutional text.

Lawyers and judges bear great responsibility for implementing and explaining those principles. The further we get from the founding generation, the less we appreciate how much everything depends on people rather than paper.

A Ruling for Federalism and the Separation of Powers.

James Hohmann at WP:

The U.S. Court of Appeals for the 7th Circuit upheld a nationwide injunction that blocks the Justice Department from using “the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement.”

Trump’s latest courtroom defeat offers yet another civics lesson about checks and balances for the first president in American history who lacks any prior governing or military experience. Unlike congressional Republicans who have by and large kowtowed and capitulated to Trumpism, despite private uneasiness and grumbling in many cases, Republican-appointed judges are free not to care about the wrath of the president or blowback from his loyalists. This gives them the breathing room to worry more about the rule of law than partisanship. That was the point of an independent judiciary and giving lifetime appointments. It’s how the Constitution is supposed to work.

Judge Ilana Rovner, who was appointed to a district judgeship by Ronald Reagan and elevated to the circuit by George H.W. Bush, offers a remarkable rebuke of the Trump administration in a 35-page opinion that can be read as a tutorial on the separation of powers. She even throws around words like “tyranny” that you don’t often see in opinions of this nature:

The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyrannyby creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken. The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever‐vigilant in that endeavor.

Judicial Nominee Cannot Answer Basic Questions

In confirmation hearings this year, nominees to head CEQ and the Department of Education displayed lack of basic  knowledge.

MUST WATCH: Republican @SenJohnKennedy asks one of @realDonaldTrump’s US District Judge nominees basic questions of law & he can’t answer a single one. Hoo-boy. pic.twitter.com/fphQx2o1rc

— Sheldon Whitehouse (@SenWhitehouse) December 15, 2017

Here comes the would-be judge.Derek Hawkins reports at WP:

Nomination hearings for U.S. district judges tend to be dry affairs that offer little in the way of mass entertainment — in other words, they’re not typically the stuff of viral videos.

But a clip of one of President Trump’s federal judicial nominees struggling to answer rudimentary questions about the law garnered well more than 1 million views in a matter of hours on Thursday night and stoked speculation that another of the president’s nominations might get derailed.

Sen. Sheldon Whitehouse (D-R.I.) shared footage of Matthew Petersen, a nominee for the U.S. District Court for the District of Columbia, getting quizzed by Sen. John Neely Kennedy (R-La.) on basic aspects of trial procedure during his appearance before the Senate Judiciary Committee on Wednesday.

For five painfully awkward minutes, Petersen, a member of the Federal Election Commission and a lawyer with no trial experience, fumbled with Kennedy’s questions, visibly uncomfortable as the lawmaker pressed him about how things work in a federal courtroom.

Josh Feldman at Mediaite:

 By now you may have seen the viral video of a Trump judicial nominee awkwardly not being able to answer some pretty basic questions. The senator grilling him was actually a Republican, Sen. John Kennedy, and he appeared on CNN tonight to talk about this viral moment.

Erin Burnett asked him, “What was going through your head during that questioning?”

Kennedy said he just did his job, and while he went out of his way to note his voting record with the President, he added, “I don’t think that the first time you’ve ever stepped foot in a federal courtroom ought to be as a federal judge.”

He said Matthew Petersen seems like a nice and honest man, but “experience matters, and my job under our separation of power doctrine inspired by Madison is to sort of be a check on nominees.”

 Jonah Engel Bromwich and Niraj Chokshi at NYT:

Mr. Petersen is not the first of Mr. Trump’s judicial nominees to face criticism for being poorly prepared for the bench. At least two other nominations stalled this week amid similar concerns.

One of those was the nomination of Brett Talley, a lawyer who was nominated for a lifetime federal district judgeship despite never having tried a case.

Mr. Talley was the fourth of Mr. Trump’s nominees to be rated “not qualified” by the American Bar Association and the second to have received the rating unanimously. Since 1989, only two other judicial nominees have been unanimously deemed “not qualified” by the group.

Mr. Talley failed to disclose that his wife is a senior lawyer in the office of the White House Counsel. And according to Slate, he may have written controversial posts on a message board for fans of the University of Alabama, including one that defended an early incarnation of the Ku Klux Klan.