Balanced but not Equal

Until recent
times every American student has learned the axiom of United States’
constitutional government that our 3-headed federal construct is limited by
checks and balances built into the system. The three branches—executive,
legislative and judicial—exercise certain powers and oversights that in theory
offset one another. Many people err, however, when they consider the branches
equal. They are not. For example the shoe and the foot are both larger than the
pebble, but the tiny stone in the boot can make walking an uncomfortable
undertaking. Two entities do not have to be equal in order for one to
judiciously restrict the other. The three federal branches have different
functions, constitutional powers, and responsibilities. They are not equal. One
of the great distortions of the Twentieth Century was the emergence of the
courts as power players in the national arena. Their portfolio for cases
brought before them is to determine if matters of law were applied correctly so
that plaintiffs and defendants could rely on a just system.

My
description of the legal system will not be found in Black’s or Blackstone. It is simply my interpretation of The Constitution of the United States of
America and its recognition of the necessity for a system of courts to oversee
disputes between citizens and confrontations between citizens and governments.
This piece is a perception rather than a précis. In my view there appear to be
three primary determinants for identifying the relative power of a branch of
government: the constituency, its role, available remedies for enforcing its
actions. For example, the President is the Commander-in-Chief of the Armed
Forces and the Secretary of Defense is a cabinet level position in the
Executive Branch. The people and the various electors choose the President who
appoints the Secretary of Defense…subject to Senate confirmation. The House of
Representatives is responsible for funding the military, but is not constrained
by the desires of the President or his SecDef. In essence, the President has,
subject to the War Powers Act and posse
comitatus limitations, the entire military apparatus plus various federal
agencies with police power to enforce the law. The Congress does hold the
“power of the purse,” and the Courts have the force of decree but must rely on
voluntary compliance because the courts have no police or military power.

Historically,
in my view, there have been two great shifts in the balance of power among the
three branches. The 1803 case, Marbury
vs. Madison, established the notion of judicial review and the Supreme
Court’s authority for determining the constitutionality of legislation and
executive actions. Prior to this ruling the Court was viewed as a mere
dispute-resolution mechanism. The other action that I believe transformed the
balance of power was the ratification of the Seventeenth Amendment which altered the method for selecting U.S.
senators from being appointed by their respective state legislatures to direct
popular vote by the citizens of each state. The former constituents for
senators were THE STATES. The amendment changed their obligations and loyalties
to a more populism-oriented constituency. Surely there are additional
developments that have altered the delicate balance
envisioned by the Framers, but I suspect these two would make the “Power
Shifting Hall of Fame.”

Even now
with the additional power for the Supreme Court and the alteration of the
senators’ fidelity, I believe the House of Representatives remains as the most
powerful portion of the federal government … if the country follows
constitutional law. Controlling the financial elements for most of the federal
government should give the House extraordinary leverage for determining the
policies and direction of the nation. As the direct representatives of the
people, the House can protect the peoples’ interests from encroachment by the
other branches and the bureaucracy. Clearly the House has failed in a number of
ways. The House of Representatives with agreement by the Senate has ignored or
abrogated some of its constitutional duties by transferring them to other
governmental or private sector entities thus minimizing its oversight
capabilities. The House has ignored its fiscal responsibilities by over
spending and through massive borrowing to fund unconstitutional programs,
departments, agencies and bureaus.

We have had
inter-branch faceoffs in the past as one branch or another sought to increase
its power or to preserve its niche. Some have been ugly, and others were
subtle, but the bottom line is that the 3 branches of our federal government
are NOT equal. If our federal government were operating in a constitutionally
pure manner, the House would be the most powerful entity in the federal
government because of its fiscal control. It’s true that the Congress cannot
lower the pay of the sitting federal judges, but they can abolish and/or create
federal circuits and judgeships at will. This, in effect, allows the Congress
to rein in a runaway judiciary. Congress can refuse to fund various and sundry
executive branch department, and thus, render them useless. Some people fear
the power of the purse that is given to the “Peoples’ House,” but a dispute or
confrontation between branches of government is to be preferred to all of them
vigorously defending the government’s interests…..as they do now. We need
balance. We do not need equality among the branches. In fact we need balance
and counterbalance.

Comment:  cearlwriting@hotmail.com

www.littlestuff-minoosha.blogspot.com

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