(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
. . . . . . . . . .
Top Comments: "Co-Equal Branches" Edition [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2023-06-27
For the better part of my life, I have heard the phrase “co-equal branches of government” thrown around as it relates to how the Founders devised our government in writing the Constitution. In my opinion, this notion only makes sense in the way the animals in Animal Farm are co-equal members of the farm. That is some of the animals are more equal than others.
Anyone giving a cursory reading of the Constitution as written will realize while the three branches do effectively check and balance each other, there is a clear hierarchy in the system. It shouldn’t surprise anyone to know Congress is at the top of the mountain. With the exception of constitutional amendments in which the states themselves have final authority, Congress has final authority in every other aspect of government functions. Let’s review how this is.
1. While presidents nominate members of their administrations and judges to the federal judiciary, Congress, through the Senate, must confirm those nominees. Congress can also impeach and remove any of the members of the federal government they have confirmed at any time of their choosing including the president and vice president themselves. Unlike other members of the federal government, the only people who may remove a member of Congress are the voting public or the members of the Congress themselves.
2. Presidents can veto legislation but Congress can override vetoes through a 2/3rds vote of both Houses effectively overruling the will of the President.
3. While presidents do have authority over foreign affairs, all treaties must be approved by a vote of the Senate, Additionally, the president is commander-in-chief of the armed forces, but it is up to Congress to determine when and where those forces are used through declarations of war and approval of other uses of military force. The president is given limited authority to act unilaterally but must eventually come to Congress to get full approval.
4. Congress controls the funding of the entire federal government and can write laws as specifically or as broadly as to how funds appropriated are to be used. It is also Congress’ complete discretion to devise departments of the executive branch and how those departments are to run as specifically or as broadly as Congress wishes. Congress can, at any point, pass a law ending any executive branch department it so chooses.
5. As noted in Article III of the Constitution, with the exception of having a Supreme Court, it is Congress’ sole authority to devise the federal court system including how many districts. appellate levels and number of judges to sit on any specific court including the Supreme Court. Congress also authorizes whether the federal court system has jurisdiction to hear cases related to any law Congress passes. Congress, if it chooses, can pass a law and exempt it from judicial review by stating so in the legislation.
The Supreme Court’s one supposed check on Congress, judicial review of laws passed by Congress, was created out whole cloth by Chief Justice John Marshall in the Marbury v Madison case much to chagrin of then-President Jefferson and Congress as a whole. While Congress could end this practice if it chose, it hasn’t yet. The Court has used this power for both good and evil though while the good rulings tend to involve striking down state laws, the DOMA decision is one example of SCOTUS striking down a federal law to expand rights. On the other hand, the number of bad rulings striking down laws is almost too numerous to count from the Lochner era forward and has been ramping up in the last couple of decades.
Over the almost 250 year history of the US, Congress has regularly passed laws and amendments designed to reign in the other two branches when they have strayed from what Congress has seen fit to pass. From the Reconstruction Amendments overruling Dred Scot to the 16th Amendment allowing Congress to pass income taxes or the Lilly Ledbetter Act, Congress has regularly overruled Supreme Court decisions. To combat executive branch orreach, Congress has passed laws allowing committees of jurisdiction to view tax returns in light of the Tea Pot Dome Scandals of the Harding Administration to the Presidential Records Act of 1978 and the creation of the Intelligence committees in light of the corruption of the Nixon Administration, the Hoover FBI and the Vietnam War.
It has only been in the last few decades as Congress has become more and more unworkable thanks to the undemocratic parts of the Constitution that it has allowed the other two branches of the government to usurp more and more power to themselves. While Republican administrations are more prone to believe in theory of a unitary executive, Democratic Administrations have done nothing to cede back these unconstitutional powers taken from Congress. SCOTUS, with both its manipulated right-wing majorities dating back to the Nixon years and FedSoc aligned members, has filled the vacuum left by Congress to give itself powers the Founders would have likely described as monarchical to rule in ways counter to the views of the majority of the country, the laws passed by Congress and its own precedents.
The reason why Congress is generally the final arbiter of the federal government is clear. Being composed of, currently, 535 members all of whom are the only directly elected federal government officials are both the most decentralized power there is and the one branch the Founders thought would be the least easily corruptible. Will we ever get back to a Congress that recognizes its power and takes it back from the eminently corruptible executive and judicial branches? We will find out.
[END]
---
[1] Url:
https://www.dailykos.com/stories/2023/6/27/2177987/-Top-Comments-Co-Equal-Branches-Edition
Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.
via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/
